In re McKerr (AP) (Respondent) (Northern Ireland) [2004] UKHL 12

13th May 2004

• Finalised
• Article 2
• Intervenor

The facts of the case

In reMcKerrconcerned whether or notthe investigative obligationsfound inArticle 2 of the European Convention of Human RightsECHR)areengaged in domesticUKlaw when a death took place prior to the commencement of theUKHumanRightsAct of1998HRA).

GervaiseMcKerrwas shot deadin 1982by police officers in Northern Ireland.His death is one of several that is alleged to have resulted from a purported u201cshoot-to-kill policy ofmembers of the security forces. TheMcKerrfamily successfully challenged the failure to hold anArticle 2 compliant investigation intothedeath atthe European Court of Human RightsECtHR)(McKerrv United Kingdom,Application no. 288831/95[2002]).The ECtHR foundunanimously u201cthat there has been a violation of Article 2 of the Convention in respect of failings in the investigative procedures concerning the death of GervaiseMcKerr, a decision that the UK did not appeal.

When no further investigation was forthcoming,McKerrsfamilysought an order compelling the Secretary of State for Northern Ireland to hold an effective investigation into the circumstances of his father's death. He based his claim primarily on the provisions of theHRA,even though his father died many years before theHRAcame into force.

RSIs intervention in the case

RSI (then British-Irish Rights Watch) argued that aperson is a victim if he or she represents the interests of a person who would themselves be a victim but for his or herdeath, and that a person in those circumstances is a victim in his or her own right where the state fails to meet its obligations under the procedural guarantees implied into theECHR. Further, RSI submitted thatan award of compensation by theECtHRdoes not bring the status of a victim as a victim to an end while the state continues to be in breach of its procedural obligations.

In relation to the retrospectivity of the relevant law, RSI submitted that where there has been no Article 2 compliant investigation,there is a violation of Article 2,which continues in existence until such time as it is remedied by the provision of such aninvestigation,and that the procedural aspects of Article 2 survive the death of the victim and may be exercised by others on his or her behalf.

The judgment in the case

The House of Lords rejected the familys application, holding that the investigative duties arising fromArticle 2 would only be engaged in domestic law where the death itself occurred after theHRAcame into forceinOctober 2000.They held that, instead of incorporating the ECHR rights into domestic law, the HRA merely gives effect to these rights in domestic law. As a result the UK courts do not have to apply the HRA retrospectively and require the Government to remedy any breach that occurred prior to the coming into force of the HRA.

The distinction between treaty obligations under the Convention and domestic law rights under the statutewas emphasized:although they were expressed in the same terms, they had different sources and took effect from different dates. As, in general,theHRAwas notretrospective, there were no domestic, statutory rights relating toArticle 2 orArticle 6of the ECHRbefore October 2000. Their Lordships also rejected the notion that the investigative duties underArticle 2 could be u201cdetached from the duties to protect life.

What does this mean for ourwork?

RSIintervened, not merely because of itsintimate knowledge of theMcKerrcase,but also because thiscasehadthe potential toset an important precedent fora large number ofcases in Northern Ireland and elsewhere. According to the Fundamental Review on Death Certification and Investigation (the Luce Review), there were 1,897 cases awaiting an inquest or a decision on whether to hold an inquest in Northern Ireland at the end of 2001.