Rosaleen Dalton sought a new inquest into her father’s death in 1988. Her challenge raised a question of timing. Could the investigative duty under Article 2 of the European Convention on Human Rights be enforced in a UK court for a death that occurred more than twelve years before the Human Rights Act came into force?
The death and the later complaint
On 31 August 1988 Sean Dalton was killed at a neighbour’s flat in Kildrum Gardens, Derry/Londonderry. He had entered to check on the occupant. A bomb planted by the IRA, intended to lure and kill members of the security forces, exploded. Sheila Lewis and Thomas Curran also died. The IRA later admitted planting the bomb. A police investigation and an inquest in December 1989 did not identify those responsible.
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In 2005 the family complained to the Police Ombudsman about the warning available before the explosion and the subsequent investigation. The Ombudsman criticised the police response and investigation. He did not substantiate the allegation that officers had acted to protect an informant, and attributed responsibility for the killings to the people who planted the bomb.
The request for another inquest
Section 14 of the Coroners Act (Northern Ireland) 1959 allows the Attorney General to direct an inquest where he considers one advisable. The family asked him to do so, arguing that a coroner could compel witnesses and examine what the police knew. The Attorney General refused. He considered that article 2 did not require an inquiry merely to establish historical truth, that a fresh inquest was unlikely to identify or punish those responsible, and that, given the Ombudsman’s investigation and existing civil proceedings against the police and the Ministry of Defence, an inquest was not advisable in any event.
The High Court dismissed the judicial review. The Court of Appeal declared that there had been no Article 2-compliant investigation. It did not order a new inquest. The Attorney General appealed.
Why the Human Rights Act did not apply
Article 2 protects the right to life. As well as duties not to take life unlawfully and, in some circumstances, to protect it, it imposes a procedural duty to investigate certain deaths. The Human Rights Act makes Convention rights enforceable against public authorities in domestic courts, but it came into force only on 2 October 2000 and is not generally retrospective.
The Supreme Court had already held that this domestic investigative duty can apply to an earlier death only where there is a genuine connection between the death and 2 October 2000, or where the much narrower Convention values test is met. The latter is concerned with wrongdoing of an exceptional kind, such as war crimes, genocide or crimes against humanity. It was not suggested here. In In re Finucane the Court had accepted a connection despite a gap of eleven years and eight months. In In re McQuillan a seven-justice court explained the domestic approach: the gap should not normally exceed ten years, but an extension of up to two years is permissible where the original investigation was seriously deficient and the bulk of the investigation has taken place, or ought to have taken place, after 2 October 2000. Twelve years is the outer limit.
The disagreement about ten years and precedent
The Attorney General asked the Court to go further and depart from Finucane. The argument depended on Janowiec v Russia, in which the European Court of Human Rights discussed when it has jurisdiction over an investigation into a death before the relevant State became subject to individual petition. Lord Hodge, Lord Sales and Lady Rose read Janowiec as setting a strict ten-year limit for that Court’s genuine-connection test, extendable only under the Convention values test. They considered the more flexible reasoning in Finucane to be wrong and thought that the purpose of the Human Rights Act, often described as the mirror principle, pointed towards the same strict limit in domestic law.
Lord Reed disagreed. He read Janowiec as saying that the gap must be reasonably short and should not normally exceed ten years, not that ten years was absolute. He also considered that Janowiec concerns the European Court’s own jurisdiction, not the meaning of article 2, so domestic courts were not obliged to copy it. Lord Leggatt reached the same conclusion. Lord Burrows and Dame Siobhan Keegan agreed that the domestic rule to be applied was the one stated in McQuillan.
All seven justices declined to overrule Finucane or depart from the approach in McQuillan. This case fell beyond even the longer period. Changing the authorities would make no difference to the outcome and would disturb the settled position on which other families had relied.
When an old investigation must be reopened
The Court also considered Brecknell v United Kingdom, which asks when new information requires further investigation of an earlier death. The Attorney General argued that this arises only where the new material might lead to identification and punishment of the killers. There was no realistic prospect of that here. The justices who ruled on the point rejected that limit. The investigative duty is not confined to prosecuting the direct perpetrators; it can extend to whether the authorities failed to protect life. The 2005 complaint was capable of requiring further investigation. That did not assist Ms Dalton, because a revived duty still has to fall within the time limits of the Human Rights Act.
The justices differed on whether any such duty had already been discharged. Lord Leggatt, with whose judgment Lord Reed was generally in agreement, and Lord Burrows and Dame Siobhan Keegan, considered that the Ombudsman’s investigation and the civil claim meant a fresh inquest was not required. Lord Hodge, Lord Sales and Lady Rose thought that conclusion strongly arguable, but made no final ruling.
Verdict: The Supreme Court unanimously allowed the Attorney General’s appeal. The domestic Article 2 duty did not apply to Mr Dalton’s death, which fell outside the genuine-connection period. The exceptional Convention values test was not in issue. The Court of Appeal’s declaration could not stand.
