Human rights - state's duty to investigate violent death - convention not retrospective

In re McKerr: HL (Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Rodger of Earlsferry, and Lord Brown of Eaton-under-Heywood):11 March 2004

The applicant's father was shot dead by security forces in Northern Ireland in 1982.

The European Court of Human Rights in May 2001 (McKerr v United Kingdom (2001) 34 EHRR 553) found that there had been shortcomings in the various investigatory proceedings that had taken place, and that article 2 of the European Convention on Human Rights had been violated by failure to comply with the implicit obligation to hold an effective official investigation when a person had been killed by force.

It made an award of just satisfaction to the applicant.

On 30 June 2002, he brought proceedings against the secretary of state for Northern Ireland for judicial review, claiming that the continuing failure to provide an investigation complying with article 2 was in breach of section 6 of the Human Rights Act 1998 and article 2.

Lord Justice Campbell dismissed the application; the Court of Appeal in Northern Ireland allowed an appeal by the applicant.

The secretary of state appealed.

Lord Goldsmith QC, Attorney-General, Declan Morgan QC (of the Northern Ireland bar), Philip Sales and Paul Maguire (of the Northern Ireland bar) (instructed by the Treasury Solicitor) for the secretary of state; Seamus Treacy QC, SC (of the Northern Ireland and Republic of Ireland bars) and Karen Quinlivan (of the Northern Ireland bar) for the applicant.

Held, allowing the appeal and dismissing the application for judicial review, that the 1998 Act was not generally retrospective and the obligation under section 6(1) of the Act and article 2 of the convention to investigate a violent death had not applied to the applicant's father's death before the Act had come into force on 2 October 2002; and that, since there had been no breach of the obligation before that date, there could be no continuing breach thereafter; and that it was not appropriate for the courts to impose a common law obligation to investigate where the area was regulated by legislation and when the effect would be to impose a human rights obligation in advance of the date when it had arisen under the Act.

(WLR)