The European Court and the duty to investigate deaths

Article 2 and the investigative obligation

Article 2 of the European Convention on Human Rights provides:

“1. Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

"2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Notwithstanding that the terms of article 2 plainly do not give any absolute projection to the right to life (and notably, in line with the mores of immediate post-WWII Europe, expressly allows for the imposition of the death penalty), the Strasbourg court has, over the years, gradually articulated a series of distinct and ever stricter free-standing obligations imposed on contracting states by the words (and more particularly the first sentence) of article 2.

From the outset in 1950, article 2 ECHR has from its plain and express wording required the state and its agents to refrain from using lethal force or otherwise having direct involvement in the intentional taking of life of others (other than by imposition of the death penalty by a duly authorised court). In 1995, in McCann v United Kingdom (1996) 21 EHRR 97 (the “Death on the Rock” case concerning the killing in Gibraltar of IRA terrorist subjects by British Armed Forces personnel), the Strasbourg institutions (see the Commission report at para 193) first articulated the claim that within the terms of article 2 is implied an obligation to carry out some form of effective official investigation into deaths where lethal force had been used against individuals by agents of the state.

From or about 1998 the Strasbourg court has further implied or read into article 2, positive obligations on the state to establish and enforce a general framework of laws, regulations and procedures to ensure the due protection of the lives of individuals within their (legal) jurisdiction.

In particular, in 1998 the court read into article 2 an obligation, in some situations, to take specific operational measures to protect the lives of individuals against the threat of assaults on them by other private individuals (Osman v United Kingdom (1998) 29 EHRR 245, paras 115-116). From around 1999 the court also began to apply article 2 to the field of health care, articulating an obligation on the part of the state to do “all that could have been required of it to prevent the applicant’s life from being avoidably put at risk “ (LCB v United Kingdom (1999) 27 EHRR 212).

In 2002 the Grand Chamber of the court - confirming the extension of article 2 obligations into the field of health care regulation (seen first in Powell v United Kingdom (2000) 30 EHRR CD 362) - held that article 2 imposed positive obligations on the state to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives (see Calvelli and Ciglio v Italy [GC], no 32967/96, §§ 48-49, ECHR 2002-I). And in 2004 the Grand Chamber held in Öneryıldız v Turkey, 30 November 2004 that the procedural duty of carrying out some form of effective official investigation (and possible criminal prosecution) into deaths applied to deaths resulting from a serious environmental natural disaster, namely a methane explosion at a municipal rubbish tip which caused a landslide engulfing neighbouring homes.

In 2002 Strasbourg also held that the obligation on the state to carry some form of effective official investigation into deaths applied where an individual dies in custody or detention (Salman v Turkey (2002) 34 EHRR 425 at para 99), even where it is clear that no agent of the state was involved in the incident resulting in death or injury (see, for example, Edwards v United Kingdom (2002) 35 EHRR 487, which concerned the killing of an individual in custody by his cellmate). In 2003 in the non-admissibility decision in Menson and others v UK (2003) 37 EHRR CD 220 the court stated that “the absence of any direct state responsibility for the death” of an individual who was not in the state’s custody or detention did “not exclude the applicability of article 2”.

The first finding by the court of a breach of article 2 procedural duties in relation to a death in respect of which there had been no direct state responsibility (an accident at a building site) occurred in 2006 in Pereira Henriques v Luxembourg, ECtHR, 9 May 2006, subsequently followed by the 2007 finding of a breach of the procedural obligations in a non-state killing by racist thugs, in Angelova v Bulgaria (2008) 47 EHRR 7 (at paras 92-98).

The Strasbourg cases show that article 2 has been interpreted ever more broadly in the course of the last 15 years: applying initially to killings by state agents; then applying to failures on the part of the state to prevent killings by third parties; then requiring investigations into killings by state actors; then investigations into deaths in public hospitals; then deaths in custody; and most recently investigations into any suspicious or unexplained deaths within the jurisdiction, even where there is no suggestion of any state involvement in the deaths or any specific failure on the part of the state to prevent the deaths occurring.

In carrying out an investigation or inquiry, the authorities are required by article 2 ECHR to take all reasonable steps available to them to secure the evidence concerning the incident, including, among other matters, eyewitness testimony, forensic evidence, and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of the court’s standard for an effective inquiry (Vo v France (2005) 40 EHRR 259, ECtHR (Grand Chamber), 8 July 2004).

As Lord Bingham noted in R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 at 672, paras 31-32, an article 2 ECHR compliant investigation may be necessary to ensure “so far as possible that the full facts are brought to light”, or “that dangerous practices and procedures are rectified”, or “that those who have lost their relatives may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others”.

Enforcing the investigative obligation in the UK

The recent furore concerning the release from prison on compassionate grounds of Abdelbaset Al-Megrahi has highlighted the legal issue as to whether or not there exists any enforceable obligation upon the Lord Advocate and/or the Scottish Ministers to order a public inquiry into deaths in Scotland, such as those resulting from the Lockerbie bombing, which occurred prior to the Scotland Act coming into force in mid-1999.

In the first instance, there is no doubt as to the competency of the court reviewing under Convention grounds, a decision of either the Scottish Ministers or of the Lord Advocate (in her independent capacity as head of the system of investigation of deaths in Scotland) to refuse an inquiry in respect of deaths which have occurred since the coming into force of the devolutionary settlement (see Kennedy v Lord Advocate (No 1), 2008 SLT 195, OH). But the situation as to whether Convention rights can be relied upon in relation to pre-Scotland Act deaths has not yet been formally determined.

House of Lords and pre-HRA deaths

In the Northern Ireland case of Jordan v Lord Chancellor [2007] 2 AC 226, and the English case R (Hurst) v London Northern District Coroner [2007] 2 AC 189, the House of Lords ruled that none of the provisions of the Human Rights Act could be prayed in aid in relation to deaths which predated 2 October 2000, being the date when the Human Rights Act 1998 came fully into force across the United Kingdom.

The reasoning of their Lordships on this important issue is somewhat meagre and not wholly convincing (particularly since inconsistent with their earlier express application of article 2 duties to the pre-HRA deaths in R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, Regina (Middleton) v West Somerset Coroner [2004] 2 AC 182 and R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796). But it is clear that a policy decision was taken to prevent the Human Rights Act being used to require the authorities to reopen investigations into “cold cases”; having in particular mind, perhaps, those violent deaths which were carried out in the course of the conflict in Northern Ireland (see for example In re McKerr [2004] 1 WLR 807, HL).

Now, of course, the Human Rights Act and the Scotland Act are two distinct statutes which realise the protection of Convention rights in different, and not necessarily consistent, ways. In its majority decision in R v HM Advocate 2003 SC (PC) 21, the Judicial Committee of the Privy Council held – and in its decision in Somerville v Scottish Ministers, 2008 SC (HL) 45 the majority of Appellate Committee of the House of Lords confirmed - that s 100(1) of the Scotland Act (which by s 100(4)(b) includes within its compass any “failures to act” by the Scottish Ministers in a Convention compatible manner) is a proper statutory basis for any claim against the Scottish devolved authorities in respect of a claimed breach of Convention rights, independently of the provisions of the Human Rights Act 1998.

So although, apparently for its own policy reasons, the House of Lords has determined that the Human Rights Act should not be able to be prayed in aid in relation to deaths occurring prior to 2 October 2000, there is no reason to assume that the provisions of the Scotland Act concerned with the protection of fundamental rights should also be given such a restricted interpretation.

In any event, these Human Rights Act decisions of the House of Lords were made in appeals from Northern Ireland and England & Wales, and as such are not formally binding on the courts of Scotland - courts which are statutorily obliged by s 6 of the Act, as public authorities, “to act in a way which is compatible with a Convention right”, and by s 2(1) to “take into account any (a) judgment, decision, declaration, or advisory opinion of the European Court of Human Rights... or (d) decision of the Committee of Ministers taken under article 46 of the Convention, whenever made or given, so far as in that opinion of the court or tribunal it is relevant to the proceedings in which any question has arisen”.

Further, although consistently with their interpretation of the non-retrospectivity of the Human Rights Act, the House of Lords in McKerr declined to order a fresh investigation into a death which occurred in 1982, their Lordships did leave open the question whether as a matter of public international law – whether under the European Convention on Human Rights or under and in terms of customary international law - there was any such continuing obligation.

Continuing obligation to investigate deaths

The question of whether there is such a continuing international obligation of contracting States to carry out an investigation into a death, even after compensation has been paid and many years have elapsed since the death, has subsequently been answered in the affirmative by the decision of the Grand Chamber in Tahsin Acar v Turkey (2004) 38 EHRR 2 (Grand Chamber).

In that case the Strasbourg court refused the application by the Turkish Government to strike out the case on the basis that a payment of compensation had been made by it. This payment was made without any admission of liability or any undertaking by the Turkish Government to initiate any article 2-compliant inquiry into the deaths complained of. The court held that a finding of violations of article 2 requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual specific measures to put an end to these violations and to erase their consequences so as to achieve as far as possible restitutio in integrum. Further, where the individual cases reveal systemic failings, general measures may be required with a view to preventing similar violations in the future.

In Brecknell v United Kingdom (2008) 46 EHRR 42 the Strasbourg court also specifically rejected the UK Government's claim that the procedural obligations under article 2 ECHR might lapse with the passage of time (and specifically held, contrary to the House of Lords in McKerr, that these obligations applied even to deaths predating the coming into force of the Human Rights Act).

The Strasbourg court stated: “71. ... [W]here there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures. The steps that it will be reasonable to take will vary considerably with the facts of the situation. The lapse of time will, inevitably, be an obstacle as regards, for example, the location of witnesses and the ability of witnesses to recall events reliably. Such an investigation may in some cases, reasonably, be restricted to verifying the credibility of the source, or of the purported new evidence”.

The applicability of this approach specifically to the cases of pre-Human Rights Act deaths in Northern Ireland has been confirmed by the Committee of Ministers of the Council of Europe. CMRes/DH(2005)20 23 February 2005, CM/ResDH(2007)73 of 6 June 2007 and CM/ResDH(2009)44 of 19 March 2009 are interim resolutions on measures taken or envisaged to ensure compliance with the judgments of the European Court of Human Rights in the case of McKerr v United Kingdom (2002) 34 EHRR 553 and five like cases (Jordan v United Kingdom (2003) 37 EHRR 2; Finucane v United Kingdom (2003) 37 EHRR 29; Kelly v United Kingdom, App 30054/96 (4 May 2001) [2001] Inquest Law Review 125; Shanaghan v United Kingdom, App 37715/97 (4 May 2001) [2001] Inquest Law Review 149; McShane v United Kingdom (2002) 35 EHRR 23), all concerning the death of civilians at the hands of the police or armed forces in Northern Ireland or in circumstances giving rise to allegations of collusion between the security forces and the killers.

As the European Court noted in McKerr v United Kingdom (2002) 34 EHRR 553:

“113. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (see, for example, Kaya, cited above, p 324, § 87) and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, concerning autopsies, for example, Salman, cited above, § 106; concerning witnesses, for example, Tanrıkulu v Turkey [GC], no 23763/94, § 109, ECHR 1999-IV; and concerning forensic evidence, for example, Gül v Turkey, no 22676/93, § 89, 14 December 2000, unreported). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard.
....

"137. The Court considers that there may be circumstances where issues arise that have not, or cannot, be addressed in a criminal trial and that Article 2 may require wider examination. Serious concerns arose from these three incidents as to whether police counter-terrorism procedures involved an excessive use of force, whether deliberately or as an inevitable by-product of the tactics that were used. The deliberate concealment of evidence also cast doubts on the effectiveness of investigations in uncovering what had occurred. In other words, the aims of reassuring the public and the members of the family as to the lawfulness of the killings had not been met adequately by the criminal trial. In this case therefore, the Court finds that Article 2 required a procedure whereby these elements could be examined and doubts confirmed, or laid to rest. It considers below whether the authorities adequately addressed these concerns.”

In its decisions the Committee of Ministers has confirmed that there is indeed a continuing obligation on the part of the authorities in the United Kingdom to conduct such article 2-compliant investigations in the case of McKerr among others, notwithstanding that the deaths in question predated the coming into force of the Human Rights Act (and in some cases predated the Strasbourg’s court’s decision in McCann v United Kingdom, which first set forth the idea that article 2 contained a procedural obligation to set up effective inquiries into deaths occurring within the contracting state’s jurisdiction).

Despite the fact that a considerable time has passed, the Committee of Minsters considered that the United Kingdom remains bound as a matter of international law to carry out an investigation into these deaths “that is effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible”. In its most recent resolution of 19 March 2009, the Council of Ministers “strongly urges the authorities of the respondent state to take all necessary measures with a view to bringing an end, without further delay, the ongoing investigations while bearing in mind the findings of the {Strasbourg] Court in these cases”, of Jordan, Kelly, Shanaghan and McKerr.

Article 2 and pre-Scotland Act deaths

It is already incumbent upon the Scottish Ministers and Lord Advocate at common law to respect the norms of customary international law insofar as these create international obligations on the United Kingdom (Lord Advocate's Reference (No 1 of 2000) re nuclear weapons, 2001 JC 143, HCJ). And there can be no doubt that the intention of the UK Parliament as revealed in the scheme of the Scotland Act 1998 was that the Lord Advocate (and the other devolved Scottish Ministers) should not exercise the powers that were devolved to them by the 1998 Act in a manner which would put the United Kingdom in breach of its international treaty obligations. As a matter of constitutional principle and good government it is clear that if the United Kingdom’s international obligations are to be breached, it will only be as a result of a deliberate and conscious decision on the part of Crown in right of the UK Government. It is for this reason that s 58 of the Scotland Act was enacted (to give the Secretary of State power to prevent action by the Scottish Ministers incompatible with international obligations).

It is also of interest in this regard that para 7(2)(a) of sched 5 to the Scotland Act provides that it is within devolved competence for the Scottish Ministers (and Lord Advocate) to observe and implement “international obligations, obligations under the Human Rights Convention and obligations under international law”. The phrase “Human Rights Convention” is not used in the Human Rights Act but is peculiar to the Scotland Act, which defines it in s 126(1) as being the European Convention on Human Rights and its protocols as they have effect for the time being in the United Kingdom. So the fact that the Scotland Act uses the Human Rights Act as a dictionary for the definition of what are included among “the Convention rights” does not exhaust the human rights considerations which may be applied to determine the competence of the Scottish Ministers’ actions.

The Scottish Ministers have the legal competence to take such action as is required to observe and implement the United Kingdom’s international obligations, including all those under the ECHR, and not simply by reference to the specific “Convention rights” listed in sched 1 to the Human Rights Act. And insofar as the Scottish Ministers fail to do so they may be subject to enforcement action against them on the part of the Secretary of State by virtue of s 58 of the Scotland Act. There are no parallel provisions in the Human Rights Act which set out the continued significance of public authorities abiding by the United Kingdom’s international obligations.

Collectively these provisions of the Scotland Act might be said to bind the Scottish Ministers to respect the whole range of international treaty obligations, even where they have not been incorporated into the domestic law of the United Kingdom (T, Petitioner, 1997 SLT 724, IH). Thus, while not making international obligations directly part of the domestic Scots law (Whaley v Lord Advocate, 2008 SC (HL) 107, Lord Hope at 110-111), the Scotland Act may be said to embody a legitimate expectation, enforceable by those with the Convention “victim status” which gives them the necessary title and interest, that the actions of the Scottish devolved institutions will be compatible with the United Kingdom’s “international obligations” under the ECHR.

Against that domestic and international law background it would appear that, notwithstanding the House of Lords judgments in McKerr, Jordan and Hurst on the non-applicability of the Human Rights Act to pre-HRA deaths, the Scottish Ministers in general (and the Lord Advocate in particular) remain duty bound to have full and proper regard to the provisions of the European Convention on Human Rights, and in particular to article 2, in coming to any decision about whether or not to exercise their discretion to order an inquiry into the circumstances of any death in Scotland, even ones predating the coming into force of the Scotland Act.