In the matter of an application by Rosaleen Dalton for Judicial Review (Northern Ireland)

LORD REED:

1. In these proceedings, Ms Dalton challenges the decision of the Attorney General for Northern Ireland, not to order a further inquest into the death of her father, who died on 31 August 1988 when he unknowingly detonated a bomb which had been placed in his neighbour’s house by the IRA with the intention of killing members of the security forces. The Attorney General’s decision is challenged on the basis that it is incompatible with the state’s procedural obligation to investigate deaths that have occurred in circumstances which potentially engage the state’s responsibility, under article 2 of the European Convention on Human Rights (“the Convention”), as implemented in our domestic law by the Human Rights Act 1998. In response, the Attorney General argues in the first place that the Act does not impose any procedural obligation to investigate deaths which occurred more than 12 years before it came into force on 2 October 2000 (“the commencement date”), absent exceptional circumstances which are not present in this case.

1. Applying the decisions of this court in In re Finucane [2019] UKSC 7; [2019] NI 292 (“Finucane”) and In re McQuillan [2021] UKSC 55; [2022] AC 1063 (“McQuillan”), it is clear that the Attorney General’s contention is correct. As explained below, it was held in Finucane that the procedural obligation to investigate deaths under article 2, as given effect in our domestic law by the Human Rights Act, does not apply to deaths which occurred before the commencement date unless either there was a “genuine connection” between the death and the commencement date, or the “Convention values” test was satisfied (both the genuine connection test and the Convention values test are explained below). In McQuillan, the court held that the genuine connection test could not normally be met where the death occurred more than ten years before the commencement date, but that a period of up to 12 years was permissible in specified circumstances. Mr Dalton’s death not only occurred more than ten years before the commencement date: it also falls outside the maximum period of 12 years permissible in the circumstances described in McQuillan. It is (rightly) not suggested that the case is one where the Convention values test is met. There is therefore no procedural obligation under article 2, as given effect in our domestic law, to investigate Mr Dalton’s death. It follows that the Attorney General’s appeal against the contrary decision of the Court of Appeal of Northern Ireland (which pre-dated the judgment in McQuillan)must be allowed.

1. That, however, is not the end of the appeal in relation to this issue. Lord Hodge, Lord Sales and Lady Rose consider that the reasoning in Finucane is erroneous, since it failed to apply the strict and absolute ten year limit which, they say, was adopted by the Grand Chamber of the European Court of Human Rights in Janowiec v Russia (2013) 58 EHRR 30 (“Janowiec”). In their view, that absolute limit should have been adopted in Finucane in accordance with the “mirror principle”, explained below, which they consider to apply in this context. By the same token, Lord Hodge, Lord Sales and Lady Rose are implicitly critical of the reasoning in McQuillan, in so far as itaccommodated the result of Finucane and failed to apply a strict ten year limit.

1. As explained below, I do not consider that the approach adopted by the European court is as inflexible as Lord Hodge, Lord Sales and Lady Rose believe. Nor do I consider that the “mirror principle” applies in this context. Accordingly, I am not persuaded that the decision in Finucane was wrong. Nor am I persuaded that the decision in McQuillan to accept claims after a lapse of more than ten years in the specified circumstances was wrong, notwithstanding that it was influenced by the desire to accommodate the precedent established by the court’s previous decision in Finucane, rather than having a specific basis in the case law of the European court.

1. Furthermore, in order to adopt the approach which Lord Hodge, Lord Sales and Lady Rose would in principle favour, the court would have to invoke the Practice Statement issued by the House of Lords in 1966 (Practice Statement ( Judicial Precedent) [1966] 1 WLR 1234), and depart from its decision in Finucane as qualified in McQuillan, the latter being a unanimous decision made by an enlarged court of seven justices less than two years ago. Lord Hodge, Lord Sales and Lady Rose have ultimately drawn back from advocating that step. They are right to have done so. As a general rule the court will be “very circumspect” before accepting an invitation to invoke the Practice Statement: Knauer v Ministry of Justice [2016] UKSC 9; [2016] AC 908, para 23. That is because it is “important not to undermine the role of precedent and the certainty which it promotes”: Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43; [2021] AC 563, para 87. In the circumstances of the present case, a number of factors give powerful support to that approach. They can be summarised in three propositions: (1) it is unnecessary to decide the point in order to decide the present case; (2) the earlier decisions are in my view correctly decided and, to say the least, not clearly wrong; and (3) departing from the earlier decisions would have a damaging impact on legal certainty in circumstances where maintaining a clear and consistent approach is particularly important.

1. In this judgment, I shall explain first why I consider that Finucane was correctly decided, and why I also agree with the explanation given in McQuillan of the circumstances in which a period of ten years might be exceeded. In the course of doing so, I shall also explain why I am not persuaded that the approach adopted by the European court is as inflexible as Lord Hodge, Lord Sales and Lady Rose believe, and why I consider that domestic courts need not in any event follow the approach adopted by the European court in this context. I shall then explain why, in any event, it would be inappropriate for this court to depart from the earlier decisions.

1. Why the decisions in Finucane and McQuillan were correct

1. The critical question concerns the temporal application of the procedural obligation to investigate deaths that have occurred in circumstances which potentially engage the responsibility of the state, imposed by article 2 of the Convention, as implemented in our domestic legal system by the Human Rights Act. In considering that issue, it is convenient to examine first the development of the case law of the European court in relation to a different question, namely the extent of its temporal jurisdiction under the Convention, before turning to the issue which arises in our domestic law and the criticisms made of Finucane and McQuillan.

1. The European case law

1. Where a death occurs before the date when the state in question acceded to the Convention (or, if later, the date when it recognised the right of individual petition: Chong v United Kingdom (2018) 68 EHRR SE2), complaints that the state has failed to comply with its substantive obligations under article 2 (either its negative obligation not to take life, or its positive obligation to safeguard life) will fall outside the European court’s temporal jurisdiction, or jurisdiction ratione temporis, as the court describes it. That much has always been clear.

1. What has been less clear is the scope of the European court’s temporal jurisdiction in respect of complaints that the state has failed to comply with its procedural obligation under article 2 to investigate deaths that have occurred in circumstances which potentially engage its responsibility. That is a subject on which the European court’s approach has developed over time.

1. In the early cases, the court proceeded on the basis that its temporal jurisdiction in respect of complaints of a breach of the procedural obligation only extended to deaths which occurred after the critical date (ie the date of accession to the Convention, or of recognition of the right of individual petition, as the case might be): see, for example, Moldovan v Romania (Application Nos 41138/98 and 64320/01) (unreported) 13 March 2001. The court’s reasoning was that the procedural obligation was derived from the substantive obligation, so that its temporal jurisdiction was the same in both cases.

1. The Grand Chamber departed from that approach in Šilih v Slovenia (2009) 49 EHRR 37 (“Šilih”), where it held that the procedural obligation had evolved into a separate and autonomous duty which was “detachable” from the substantive obligation and was capable of binding the state even where the death took place before the critical date (para 159). However, the court held at para 162 that “where the death occurred before the critical date, only procedural acts and/or omissions occurring after that date can fall within the court’s temporal jurisdiction”. In other words, although the death might have occurred before the critical date, the court had jurisdiction only to examine whether the state had complied with its procedural obligations in respect of its acts or omissions after that date.

1. The court also made it clear that its jurisdiction over complaints of breaches of the procedural obligation was not open-ended and could not extend to all deaths which had occurred before the critical date, no matter how far in the past. In a passage of central importance, the court stated at para 163:

   “… there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent state for the procedural obligations imposed by article 2 to come into effect.

   Thus a significant proportion of the procedural steps required by this provision – which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account – will have been or ought to have been carried out after the critical date.

   However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner.”

1. In Šilih itself, the death had occurred about a year before the critical date, and the genuine connection test was held to be met. In some subsequent cases the genuine connection test was held to be satisfied although the gap was much greater, on the basis that investigative steps had continued after the critical date. For example, in the case of Mladenović v Serbia (Application No 1099/08) (unreported) 22 May 2012 (“Mladenović”) the genuine connection was held to be satisfied notwithstanding a 13 year gap between the death and the critical date. The court referred to the fact that investigative proceedings had been under way for eight years as at the critical date but had been held to be seriously deficient, and that they were still continuing at the time of the proceedings before the court (paras 38-39).

1. The judgment in Šilih did not provide a clear explanation of the genuine connection test or the Convention values test. Some clarification was provided by the Grand Chamber’s subsequent judgment in the case of Janowiec, which concerned the Katyn Forest massacres of 1940. The court summarised at para 141 the three elements of the approach laid down in Šilih:

   “First, where the death occurred before the critical date, the court’s temporal jurisdiction will extend only to the procedural acts or omissions in the period subsequent to that date. Secondly, the procedural obligation will come into effect only if there was a ‘genuine connection’ between the death as the triggering event and the entry into force of the Convention. Thirdly, a connection which is not ‘genuine’ may nonetheless be sufficient to establish the court’s jurisdiction if it is needed to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective way.”

It is relevant to note that, according to that explanation, the genuine connection test and the Convention values test are distinct, and the Convention values test is material where the genuine connection test is not met.

1. The court then analysed each of those elements in turn. In relation to the genuine connection test, it stated at paras 146-148:

   1. The court considers that the time factor is the first and most crucial indicator of the ‘genuine’ nature of the connection. It notes … that the lapse of time between the triggering event and the critical date must remain reasonably short if it is to comply with the ‘genuine connection’ standard. Although there are no apparent legal criteria by which the absolute limit on the duration of that period may be defined, it should not exceed ten years. Even if, in exceptional circumstances, it may be justified to extend the time-limit further into the past, it should be done on condition that the requirements of the ‘Convention values’ test have been met.

   1. The duration of the time period between the triggering event and the critical date is however not decisive, in itself, for determining whether the connection was a ‘genuine’ one. As the second sentence of para 163 of the Šilih judgment indicates, the connection will be established if much of the investigation into the death took place or ought to have taken place in the period following the entry into force of the Convention. This includes the conduct of proceedings for determining the cause of the death and holding those responsible to account, as well as the undertaking of a significant proportion of the procedural steps that were decisive for the course of the investigation. This is a corollary of the principle that the court’s jurisdiction extends only to the procedural acts and omissions occurring after the entry into force. If, however, a major part of the proceedings or the most important procedural steps took place before the entry into force, this may irretrievably undermine the court’s ability to make a global assessment of the effectiveness of the investigation from the standpoint of the procedural requirements of article 2 of the Convention.

   1. Having regard to the above, the court finds that, for a ‘genuine connection’ to be established, both criteria must be satisfied: the period of time between the death as the triggering event and the entry into force of the Convention must have been reasonably short, and a major part of the investigation must have been carried out, or ought to have been carried out, after the entry into force.”

1. Some points should be noted in relation to that explanation of the genuine connection test. First, para 146 states that the lapse of time between the triggering event and the critical date “must” remain reasonably short. It then states that the period “should” not exceed ten years. “Must” indicates an absolute obligation, whereas “should” indicates an obligation which is less peremptory. The same distinction appears in other language versions of the judgment (eg in the French, “doit” and “devrait”; in the German, “muss” and “sollte”). In that context, “should” can be read as meaning “should normally”, or “should in principle”.

1. That reading is supported by the court’s statement, in the third sentence of para 146, that there are no apparent legal criteria by which the absolute limit on the duration of the period between the triggering event and the critical date can be defined. That being so, it is most unlikely that in the next few words the court nevertheless defined an absolute limit: it had just acknowledged that there were no legal criteria which would enable it to do so. Indeed, it would be surprising in any event if the European court set a fixed time limit for which there was no authority in the Convention. Like other courts, it is an adjudicative body, not a legislature. It is therefore unlikely to regard itself as having the competence to lay down a fixed time limit of a specified number of years. On the contrary, its reference to the absence of any legal criteria which would enable an absolute time limit to be defined indicates that it was perfectly aware of the limits of its role.

1. I therefore do not interpret the judgment in Janowiec, as Lord Hodge, Lord Sales and Lady Rose do, as fixing an absolute limit of ten years for the genuine connection test to be satisfied. An alternative reading, which seems to me to be much more likely, is that while it is not possible to define an absolute limit to what constitutes a reasonably short lapse of time, it “should” not (scilicet, “should not normally”) exceed ten years. The last sentence of para 146 can then be understood as meaning that the time limit can be extended further into the past – further, that is to say, than the “reasonably short” period which the genuine connection test permits – only where the Convention values test is satisfied.

1. It is also important to note that although the temporal connection between the triggering event and the critical date is said at para 146 to be the first and most crucial indicator of the genuine nature of the connection, it is made clear by paras 147 and 148 that it is not the only relevant factor. The court explains at para 148 that two criteria must be satisfied: the period of time between the death and the entry into force of the Convention must be reasonably short, and a major part of the investigation must have been carried out, or ought to have been carried out, after the entry into force. The latter element, we are told by para 147, includes the conduct of proceedings for determining the cause of the death and holding those responsible to account, as well as the undertaking of a significant proportion of the procedural steps that were decisive for the course of the investigation. Accordingly, although the passage of time is the most important factor in deciding whether the genuine connection test is met, it is not the only one.

1. The conclusion that Janowiec does not impose a strict or absolute time limit is supported by the fact that the summary of the European court’s decision in relation to the genuine connection test in para 148 repeats that the period “must have been reasonably short”, without mentioning a ten year limit. It gains further support from the fact that, in Janowiec, the court cited Mladenović without any suggestion of disapproval. At para 138, Mladenović was explained as a case where the 13 year period separating the death from the entry into force of the Convention in respect of the respondent state was not seen as outweighing the importance of the procedural acts that were accomplished after the critical date.

1. In Janowiec the European court also clarified the Convention values test. It accepted that there could be “extraordinary situations” which did not satisfy the genuine connection test, but where the need to ensure the real and effective protection of the guarantees and the underlying values of the Convention would constitute a sufficient basis for recognising the existence of a connection (para 149). It stated at paras 150-151:

   “the Grand Chamber considers the reference to the underlying values of the Convention to mean that the required connection may be found to exist if the triggering event was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundations of the Convention. This would be the case with serious crimes under international law, such as war crimes, genocide or crimes against humanity … The heinous nature and gravity of such crimes prompted the contracting parties to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity to agree that they must be imprescriptible and not subject to any statutory limitation in the domestic legal order.”

The court also explained that the Convention values test could not apply to events which occurred before the Convention came into being on 4 November 1950 (para 151), and therefore could not apply to the facts of Janowiec itself.

1. The Grand Chamber returned to the subject of its temporal jurisdiction in relation to the procedural aspect of article 2 in Mocanu v Romania (2014) 60 EHRR 19 (“Mocanu”). It summarised its ruling on the temporal component of the genuine connection test in Janowiec as follows (para 206):

   “It found, in essence, that this temporal jurisdiction was strictly limited to procedural acts which were or ought to have been implemented after the entry into force of the Convention in respect of the respondent state, and that it was subject to the existence of a genuine connection between the event giving rise to the procedural obligation under articles 2 and 3 and the entry into force of the Convention. It added that such a connection was primarily defined by the temporal proximity between the triggering event and the critical date, which could be separated only by a reasonably short lapse of time that should not normally exceed ten years; at the same time, the court specified that this time period was not in itself decisive. In this regard, it indicated that this connection could be established only if much of the investigation - that is, the undertaking of a significant proportion of the procedural steps to determine the cause of death and hold those responsible to account - took place or ought to have taken place in the period following the entry into force of the Convention.” (emphasis added)

1. It is to be noted that this entire passage is concerned solely with the genuine connection test. The word “normally”, in the second sentence, is therefore not, in my view, alluding to the Convention values test, as Lord Hodge, Lord Sales and Lady Rose consider. It implies that ten years is not an absolute limit to the genuine connection test, but rather the outer limit which will normally apply. That supports the reading of para 146 of Janowiec suggested at paras 16-18 above.

1. The matter was considered again in Mučibabić v Serbia (2016) 65 EHRR 35 (“Mučibabić”), where the death in question occurred nine years before the respondent state ratified the Convention. The court set out at para 97 of its judgment “the principles concerning the temporal limitations of the court’s jurisdiction”, and stated, in sub para (ii), under reference to Mocanu and Janowiec:

   “in order for a ‘genuine connection’ to be established, the period of time between the death as the triggering event and the entry into force of the Convention in respect of that State must have been reasonably short (in principle, not exceeding ten years)”.

The words “in principle” are again expressive of a rule which applies generally but not absolutely. That is consistent with the interpretation of Mocanu and Janowiec suggested above. More recent decisions and judgments of the court have continued to use the expressions “normally” or “in principle” in relation to the ten year period.

1. The domestic case law

1. The issue arising under domestic law is different from the issue at the European level. A court such as the High Court, or this court, does not exercise a jurisdiction which is subject to a temporal limitation. The question which arises in relation to the procedural obligation under article 2, as given effect in our domestic law by the Human Rights Act, is whether the obligation applies in the particular circumstances before the court.

1. Initially, as in the case law of the European court, it was thought that the procedural obligation imposed by article 2 was consequential upon the substantive obligation to protect life. The latter obligation could only apply domestically in respect of deaths which occurred on or after the commencement date (2 October 2000), since the Human Rights Act did not in general have retrospective effect: section 22(4). Accordingly, it was held that the procedural obligation could also apply only in respect of deaths occurring on or after that date: In re McKerr [2004] UKHL 12; [2004] 1 WLR 807, followed in R (Hurst) v London North District Coroner [2007] UKHL 13; [2007] 2 AC 189 and Jordan v Lord Chancellor [2007] UKHL 14; [2007] 2 AC 226.

1. That position was reassessed, following the European court’s judgment in Šilih, in In re McCaughey [2011] UKSC 20; [2012] 1 AC 725 (“McCaughey”). That case concerned deaths which occurred on 9 October 1990, slightly less than ten years before the commencement date. An inquest was pending on the latter date, and remained pending at the date of the hearing. The issue was whether the inquest was subject to the procedural obligation imposed by article 2. The court, by a majority, held that it was.

1. All the members of the majority recognised that Šilih had made it clear that the procedural obligation imposed by article 2 was distinct from the substantive obligation to protect life imposed by the same article. Beyond that, they gave differing reasons for their decision. It is unnecessary for present purposes to consider the views expressed. It was, however, generally accepted that inquests held after the Human Rights Act came into force should comply with the relatives’ article 2 rights, even if the death occurred before the commencement date.

1. This court first considered Janowiec in the case of R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355 (“Keyu”), which concerned deaths that occurred in Malaya in 1948, before the Convention entered into force. Lord Neuberger of Abbotsbury, in a judgment with which the majority of the court agreed, began by considering whether any obligation had arisen under the Convention.In relation to the genuine connection test, he interpreted Janowiec as establishing “that one cannot, at least normally, go back more than ten years”: para 87. As I have explained, that statement is consistent with the language used in Janowiec, and follows the statement in the Grand Chamber’s judgment in Mocanu: para 22 above. In relation to the Convention values test, Lord Neuberger noted that Janowiec established that the test did not apply to events which occurred before the Convention came into existence: para 88. There was therefore no claim open to the claimants in Keyu based on article 2. Lord Neuberger also observed that “this is a topic on which clarity and consistency is highly desirable”: para 90.

1. The court returned to this topic in Finucane, which concerned the investigation of a death which occurred on 12 February 1989, 11 years and 8 months before the commencement date. The circumstances of the death were exceptionally serious from the perspective of the rule of law. The deceased was a solicitor who had been murdered, allegedly with the connivance of members of the police and the armed forces, because he acted in cases brought against the police and the government, and defended republican suspects in criminal cases. The murder had been the subject of multiple inquiries, the bulk of which, and the most important of which, took place after the entry into force of the Human Rights Act. In 2003, the inquiries up to that date were held by the European court not to meet the requirements of article 2 (Finucane v United Kingdom (2003) 37 EHRR 29). Following that decision, and the consideration of the case by the Committee of Ministers, the government established a further inquiry. One of the issues before this court was whether that inquiry was compliant with article 2, as given domestic effect by the Human Rights Act. In that regard, the respondent argued that the genuine connection test was not met, having regard to para 146 of Janowiec, since the death occurred more than ten years before the commencement date. Lord Hodge, Lord Sales and Lady Rose are critical of counsel for the Secretary of State for having submitted that the ten year period was a “pretty serious line”, but one which was “not entirely absolute” and “not entirely unporous”. However, that submission seems to me to be a reasonable description of the position after Janowiec.

1. The leading judgment was given by Lord Kerr of Tonaghmore, with whom the other members of the court agreed on this issue. Lord Kerr rejected the contention that the genuine connection test was subject to a strict ten year limit, pointing out that in Mocanu the Grand Chamber had referred to “a reasonably short lapse of time that should not normally exceed ten years” (Lord Kerr’s emphasis): para 107. Lord Kerr also referred to Mladenović, where, as explained earlier, the European court had found a violation of the procedural obligation in relation to a death which occurred 13 years before the critical date. He stated at para 108 that a period of ten years or less between the triggering event and the coming into force of the Human Rights Act was not an immutable requirement. The time which elapsed between the two dates was a factor of importance but, when taken into account with the circumstance that the vast bulk of noteworthy inquiry into the death had taken place since the Human Rights Act came into force, the significance of the time lapse diminished. In a sentence which is the subject of particular criticism by Lord Hodge, Lord Sales and Lady Rose, he stated (ibid) that “the decision as to whether there is a genuine connection involves a multi-factorial exercise and the weight to be attached to each factor will vary according to the circumstances of the case”. He also referred to passages in the judgments in McCaughey in which it had been accepted that an inflexible ten year limit was not essential and that the consideration that most of the investigation took place after the entry into force of the Human Rights Act was also a relevant factor, which could compensate for the length of the time lapse.

1. Both the decision in Finucane and the reasoning of Lord Kerr appear to me to be consistent with the approach adopted by the European court, and in any event a sensible approach to the application of the Human Rights Act. Lord Kerr was correct in proceeding on the basis that a period of time of ten years or less is not an immutable requirement of the European jurisprudence: see paras 16-18 and 22-24 above. He was also correct in his view that the lapse of time, although an important factor, is not in itself decisive: see para 147 of Janowiec (para 15 above). He was also correct in his view that the fact that the vast bulk of noteworthy inquiry had taken place subsequent to the commencement date was also important: see para 19 above. That is what I understand Lord Kerr to have meant when he stated that the decision as to whether there is a genuine connection involves a multi-factorial exercise. (If, as other members of the court consider, he is to be taken as meaning that the decision should be based on an evaluation not only of the factors to which he referred – the lapse of time between the death and the commencement date, and the extent of investigation before and after that date - but also of a potentially unlimited number of other unspecified factors, then I agree that that would be an approach which went beyond the European case law and could not be supported in the light of the subsequent reasoning in McQuillan. Lord Kerr would also, on that interpretation, have expressed himself more broadly than was necessary for his decision, since the only factors which he took into account were the two to which he referred.) On the facts, the decision in Finucane is consistent with Mladenović (para 13 above), and with the explanation of that case in Janowiec (para 20 above).

1. In the subsequent case of McQuillan, this court, sitting in an enlarged constitution of seven judges, considered two appeals. One concerned a death which occurred in 1972, and the other (in which the procedural obligation under article 3 was in issue) concerned the alleged torture of a number of suspected terrorists during 1971. On behalf of the Secretary of State, it was argued that the genuine connection test involved two requirements. First, there must be a temporal connection between the triggering event (the death or other act) and the critical date (domestically, the date when the Human Rights Act entered into force), which must remain reasonably short and should not normally exceed ten years. Secondly, a major part of the investigation must have been carried out, or ought to have been carried out, after the critical date. On behalf of the claimants, it was argued that the ten year limit was not inflexible and, in relation to the allegations of torture, that the Convention values test was met.

1. In a judgment given by Lord Hodge, Lord Lloyd-Jones, Lord Sales and Lord Leggatt with which the other members of the court agreed, the court did not depart from the decision in Finucane but observed at para 144:

   “With respect to Lord Kerr JSC, he did not identify any clear principle by which one could tell when and to what extent it might be appropriate to water down a strict ten-year requirement as the Grand Chamber of the Strasbourg court had appeared to lay down in Janowiec, para 146. We have reservations as to whether Lord Kerr JSC was right to interpret Janowiec as he did.”

   “This court has not been invited to depart from its decision in In re Finucane but we note that the extension beyond ten years allowed in In re Finucane involved less than two more years. It would significantly undermine the legal certainty which the Grand Chamber sought to achieve in Janowiec if longer extensions than this were to be contemplated or permitted. Moreover, in Janowiec, para 146, the Grand Chamber emphasised that the time factor is the ‘most crucial indicator’ in relation to the ‘genuine connection’ test and that the test requires that ‘the lapse of time between the triggering event and the critical date must remain reasonably short’.”

It continued (ibid):

1. Against that background, the court explained the circumstances in which the genuine connection test might be satisfied notwithstanding a lapse of time of more than ten years (ibid):

   “In our judgment, an extension beyond the normal ten year limit of up to two years is permissible where there are compelling reasons to allow such an adjustment constituted by circumstances that (a) any original investigation into the triggering death can be seen to have been seriously deficient and (b) the bulk of such investigative effort which has taken place post-dates the relevant critical date. If in these circumstances there is an extension of no more than two years beyond the ten-year limit mentioned in Janowiec, it remains possible to describe the lapse of time as ‘reasonably short’ in accordance with the guidance in that judgment at paras 146 and 148.”

The two circumstances identified by the court in that passage reflected the circumstances in Finucane (and the reasoning of Lord Kerr in that case), and also those in Mladenović, as explained in Janowiec.

1. The court went on to decide that the critical date for domestic purposes was the date of the commencement of the Human Rights Act, ie 2 October 2000 (para 168). It was therefore by reference to that date that the genuine connection test, and consequently the normal time limit of ten years, with a possible extension of up to two years in the circumstances described, fell to be applied.

1. The criticisms of Finucane and McQuillan

1. Lord Hodge, Lord Sales and Lady Rose consider that the judgment in Janowiec laid down a “strict”, “absolute” or “bright line” time limit of ten years for the genuine connection test to be satisfied. They recognise that such a rule is inconsistent with the approach adopted in Finucane and McQuillan. Applying the “mirror principle”, which seeks to align the application of the Human Rights Act by domestic courts with the application of the Convention by the European court, on the basis that the purpose of the Human Rights Act is to implement the Convention in domestic law, they conclude that the reasoning in Finucane was incorrect. The implication of their reasoning is that the approach adopted in McQuillan also failed properly to reflect the European case law.

1. I am not persuaded by this argument. In the first place, as I have explained above, it does not appear to me that the European court has adopted an absolute rule that the genuine connection test can only be satisfied where the death occurred within ten years of the critical date. On the contrary, both in Janowiec and in the subsequent case of Mocanu the Grand Chamber expressed its reasoning in terms which allow for a degree of flexibility, and the same is true of the more recent Section judgments such as that in Mučibabić. The correctness of the decision in Mladenović has also remained unquestioned. As the case law of the European court presently stands, it appears to me that the period between the death and the critical date “must” be “reasonably short”. It “should not normally” exceed ten years. “Should” does not mean “must”. “Not normally” does not mean “never”.

1. Secondly, this is not a situation to which the mirror principle applies. To begin with, that principle requires domestic courts to follow any “clear and constant jurisprudence of the Strasbourg court” (R (Ullah) v Special Adjudicator [2004] 2 AC 323, para 20; see also Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104, para 48), unless there is a good reason not to do so. There is no “clear and constant jurisprudence” establishing an absolute ten year limit beyond which the genuine connection test cannot be satisfied.

1. Furthermore, as was explained in R (AB) v Secretary of State for Justice [2021] UKSC 28; [2022] AC 487, paras 54-59, the mirror principle gives effect to the intended aim of the Human Rights Act: to enable the rights and remedies available in the European court to be asserted and enforced by domestic courts. The mirror principle achieves that objective by aligning the interpretation of the Convention rights under the Human Rights Act with the European court’s interpretation of the rights defined in the Convention. The rationale was explained in R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56; [2023] AC 559, para 87:

   “The Act … defines the Convention rights to which it gives effect in domestic law as the rights which are enforceable against the United Kingdom under international law. It follows that the rights given effect in domestic law have the same content as those which are given effect under international law, although they are enforceable before domestic courts rather than the European court, and against public authorities rather than the United Kingdom as a state. Since the rights have the same content at the domestic level as at the international level, it follows that the relevant articles of the Convention should in principle receive the same interpretation in both contexts. That is not to say that domestic courts are bound to follow every decision of the European court, but there should in principle be an alignment between interpretation at the international and domestic levels.”

1. That reasoning does not apply in the present context because the interpretation of article 2 of the Convention is not in issue. Cases such as Janowiec are instead concerned with the temporal jurisdiction of the European court: something which has no equivalent in our domestic law. The issue in domestic cases such as Finucane, McQuillan and the present case, on the other hand, is whether the defendant public authority was subject to a procedural obligation under article 2, as given domestic effect, in particular circumstances.

1. Nevertheless, in its decisions in relation to the scope of the domestic investigative obligation, this court has sought to follow the reasoning of the European court in relation to its temporal jurisdiction. The justification for doing so is pragmatic. The court is concerned with the approach which should be adopted by domestic courts when faced with the task of deciding whether the procedural obligation under article 2, as given effect in domestic law, applies in relation to deaths occurring before the Human Rights Act entered into force. An analogy has been drawn with the task faced by the European court when deciding whether it has temporal jurisdiction over complaints alleging a breach of the procedural obligation in relation to deaths occurring before the entry into force of the Convention, or before the right of individual application was recognised. The European court applies a genuine connection test based primarily but not exclusively on temporal proximity, set out in greater detail in cases such as Janowiec, Mocanu and Mučibabić. It also applies a Convention values test in particular circumstances. Domestic courts have followed an analogous approach. This has the pragmatic advantage of giving domestic courts a basis for establishing a temporal limit to the scope of the procedural obligation under article 2, in the absence of any relevant transitional provisions in the Human Rights Act itself. The decision in Finucane, as explained in McQuillan, reflects the element of flexibility which the European court appears to accept.

1. Following that approach, McQuillan should not be regarded as laying down a judicially legislated time bar. The court’s jurisdiction is to develop and apply legal principles, not to lay down precise time limits. It might find legislative authority for a time bar in the Human Rights Act, if a limitation period had been laid down by the European court and, on a proper interpretation of that Act, also fell to be applied by domestic courts. But, as I have explained, the European court has not adopted such an inflexible rule.

1. Against that background, the ten year and 12 year periods discussed in McQuillan should in my view be understood as marking points beyond which it is in practice inconceivable that the application of the principles laid down in the case law might result in the imposition of the article 2 procedural obligation in our domestic law. The ten year period fulfils that function in the general run of cases, and the 12 year period does so where the particular factors described in McQuillan are present. So understood, McQuillan provides legal certainty as to the limits of the principles governing the scope of the article 2 procedural obligation under domestic law, in circumstances where the Convention values test is not in issue.

1. Why the court should not depart from the decisions in Finucane and McQuillan in any event

1. As I explained earlier, the court should not in my view depart from Finucane and McQuillan in any event, for reasons which can besummarised in three propositions: (1) it is unnecessary to decide the point in order to decide the present case; (2) the earlier decisions are, to say the least, not clearly wrong; and (3) departing from the earlier decisions would have a damaging impact on legal certainty, in circumstances where maintaining a clear and consistent approach is particularly important.

1. It is unnecessary to decide the point

1. The first factor which bears on the application of the Practice Statement is that it is unnecessary, in order to decide the present case, to determine whether Finucane and McQuillan were correctly decided. As I have explained, the gap in time between the death of Mr Dalton on 31 August 1988 and the commencement of the Human Rights Act on 2 October 2000 exceeded 12 years, and is therefore beyond the outer limit indicated by McQuillan (the Convention values test not being in issue). This appeal would therefore have to be allowed, whether the court applied the approach adopted in Finucane and McQuillan or were to adopt a stricter ten year rule of the kind favoured by Lord Hodge, Lord Sales and Lady Rose. Although not entirely unknown, it would be unusual for the court to depart from one of its earlier decisions in a case where it was unnecessary to decide the point; especially where the members of the court had not themselves reached a clear and unanimous position on the question in issue: see, for example, Food Corpn of India v Antclizo Shipping Corpn [1988] 1 WLR 603, 607, Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, 343 and Mercedes Benz AG v Leiduck [1996] AC 284, 298.

1. The decisions in Finucane and McQuillan are not clearly wrong

1. As I have explained at para 5 above, this court will be very circumspect before accepting an invitation to invoke the 1966 Practice Statement, because it considers it to be important not to undermine the role of precedent and the certainty which it promotes. The court will not overrule a previous decision simply because the justices would decide the case differently today: Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36; [2021] AC 1014, para 49, citing Horton v Sadler [2006] UKHL 27; [2007] 1 AC 307, para 29. This principle is vitally important to the operation and reputation of a court which does not sit en banc, and whose composition consequently varies from one case to another. In such circumstances, the principle is essential to counter the risk that the outcome of cases might otherwise depend, or at least might appear to depend, on who happened to be sitting. It is also essential to enable the consistent application of the law, and its coherent development, to take place. As was said in R v National Insurance Comr, Ex parte Hudson [1972] AC 944 (“Ex parte Hudson”), pp 996-997, if a tenable view taken by a majority in the first appeal could be overruled by a majority preferring another tenable view in a second appeal, then the original tenable view could be restored by a majority preferring it in a third appeal, and finality of decision would be utterly lost. For all these reasons, there is great force in the observation made by Lord Hoffmann in relation to the Judicial Committee of the Privy Council in Lewis v Attorney General of Jamaica [2001] 2 AC 50, 90:

   “If the Board feels able to depart from a previous decision simply because its members on a given occasion have a ‘doctrinal disposition to come out differently’, the rule of law itself will be damaged and there will be no stability in the administration of justice”.

That observation is equally applicable to this court.

1. In the present case, it seems to me that the decision in Finucane, as explained in McQuillan, was correctly decided for the reasons given above. At the very least, the two decisions were based upon what Lord Pearson described in Ex parte Hudson, p 996 as “a tenable view, in the absence of any demonstration that it was arrived at per incuriam or is for some other reason clearly unmaintainable”. As was said in that case (ibid), that is a sufficient reason for not overruling the decisions.

1. Departing from the earlier cases would have an unacceptable impact on legal certainty

1. There are in addition particular reasons for maintaining the consistency of the court’s approach to the present issue. Virtually all the leading cases in our domestic case law on this issue have concerned deaths occurring in Northern Ireland during the Troubles: In re McKerr, Jordan v Lord Chancellor, McCaughey, Finucane, McQuillan and the present case. Decisions taken now about the investigation of deaths which occurred during the Troubles, whether taken by the legislature, the executive or the judiciary, can affect the long and difficult process of reconciliation between the different sides of that community. In that context, the court has to bear in mind that to hold that the reasoning in McQuillan is wrong and that Finucane was wrongly decided might affect ongoing proceedings in respect of Mr Finucane’s death, as Lord Burrows and Dame Siobhan Keegan explain at para 339 below. It might also affect inquests which are currently outstanding in respect of other Troubles-related deaths, and applications for the holding of an inquest.

1. Less than two years ago, an enlarged constitution of this court considered the reasoning in Finucane in the case of McQuillan. The correctness of the decision in Finucane was confirmed, and the correct approach to the application of the genuine connection test in our domestic law was authoritatively established. It is difficult to see what has changed since McQuillan. There has been no subsequent change in the case law of the European court. I am not persuaded that there is an adequate justification for departing from the decision in Finucane, as explained in McQuillan, even if this court disagreed with it.

1. Conclusion

1. For all these reasons, and those given by Lord Leggatt, Lord Burrows and Dame Siobhan Keegan, with which I am generally in agreement in all important respects, I would hold that this appeal should be allowed. Since Mr Dalton’s death occurred more than 12 years before the Human Rights Act came into force, and the Convention values test is not in issue, the Attorney General’s decision not to order a further inquest into his death cannot be challenged under that Act.

LORD HODGE, LORD SALES AND LADY ROSE:

1. Introduction

1. This appeal calls upon this court to look again at the important question of whether families who allege that there has been a failure to investigate the death of their relative in a way which complies with article 2 of the European Convention on Human Rights can bring proceedings before the domestic courts when that death occurred before rights under the Convention were “brought home” by the coming into force of section 6 of the Human Rights Act 1998 (“the HRA”).

1. Sean Dalton died in an explosion on 31 August 1988 when he accidentally triggered a booby-trap bomb that had been set by the Provisional Irish Republican Army (“the IRA”) in a flat at 38 Kildrum Gardens in Derry/Londonderry. The bomb was intended to kill members of the security forces who the IRA hoped would enter the premises. Mr Dalton and the two other people who were killed by the explosion were the entirely innocent victims of that terrorist attack. The investigations that were carried out in the aftermath of their deaths did not identify the perpetrators.

1. The daughter of Sean Dalton has brought these judicial review proceedings to challenge the decision taken by the Attorney General for Northern Ireland (“AGNI”) on 2 October 2014 not to order a further inquest into Mr Dalton’s death. She and the other members of Mr Dalton’s family rely on evidence that was investigated by the Police Ombudsman of Northern Ireland that shows that the police were aware that the IRA were trying to lure the security forces to a location at or near the premises in which the bomb had in fact been placed. The police directed their officers and the army to treat the area including Kildrum Gardens as being “out of bounds” to the security forces. But they did not take steps to warn the local residents or the leaders of the community of that danger. Ms Dalton believes that a fresh inquest would help to get to the bottom of what precisely the police knew and when, and why they took the decisions they did. She argues that the investigations so far have not satisfied the United Kingdom’s obligations under article 2.

1. The AGNI argues that whatever the merits of Ms Dalton’s claim under article 2, it is not a claim that she can bring before the domestic courts under section 7 of the HRA. Mr Dalton’s death occurred just over 12 years before the HRA came into force on 2 October 2000. The AGNI submits that according to the case law of the European Court of Human Rights (“the Strasbourg Court”), if properly applied by the domestic courts to the HRA, there is no right under section 7 to bring an action where the death to be investigated took place more than 10 years before the HRA entered into force.

1. The main issue in this appeal is how firm that 10 year cut off period is. Ms Dalton relies on the decisions of this court in In re Finucane [2019] UKSC 7; [2019] NI 292 (“Finucane”) and In re McQuillan, in re McGuigan, in re McKenna [2021] UKSC 55; [2022] AC 1063 (“McQuillan”) to argue that there is some flexibility in the application of the cut off date whether it is a 10 year or 12 year cut off . The AGNI argues that this court should depart from those cases because they are inconsistent with the case law of the Strasbourg Court. They are also inconsistent with the earlier decision of this court that established that the HRA was intended to operate in respect of deaths prior to commencement only to the same extent as the Convention has been held by the Strasbourg Court to operate in respect of deaths prior to the respondent State’s adoption of the Convention.

1. Mr Dalton’s death and the PONI Report

1. The explosion and its immediate aftermath

1. The deaths of Sean Dalton, Sheila Lewis and Thomas Curran as the result of the explosion in Derry/Londonderry on 31 August 1988 are among the many sad and terrible deaths that occurred during the Northern Ireland Troubles.

1. Mr Dalton, Mrs Lewis and Mr Curran all lived in a block of flats at Kildrum Gardens in the residential area of Creggan in Derry/Londonderry. Their neighbour, a vulnerable young man known as Person A, lived at 38 Kildrum Gardens. Person A went missing in mid-August 1988. His neighbours realised that they had not seen him around for a while and, concerned about his welfare, they went to his flat to check up on him. When Person A did not answer their calls, Mr Dalton was able to enter the property through a window. He looked around but could not see Person A. When Mr Dalton went through the flat and opened the front door, there was a large explosion, which was later identified as a bomb. Mr Dalton was killed instantly as was Mrs Lewis. Mr Curran died of his injuries on 31 March 1989.

1. The IRA later admitted that it had planted the bomb in Person A’s flat. Person A and a friend of his who had been visiting him at the time, a 15 year old boy known as Person B, had been abducted by masked members of the IRA on 25 August 1988. Person A and Person B were held by the IRA at another location. The bomb had been placed in the flat by the IRA some five days before the explosion and the flat had, the IRA said, been monitored on a 24-hour basis by IRA members to target security forces. Their operation had gone wrong. Person A and his friend were released onto a public road after the explosion on 31 August 1988.

1. A police investigation followed into the murders. It was conducted by a senior investigating officer of Detective Superintendent rank with about 22 officers assisting him. The police gathered about 47 witness statements, carried out forensic enquiries and made several arrests, two on the date of the incident and 11 later on. The deponents included Person A and Person B who had been abducted with him by the IRA. The police investigation did not result in any individual being charged. An inquest into Mr Dalton’s death was held on 7 December 1989. The coroner for Derry/Londonderry found that Mr Dalton died from injuries received when the bomb detonated at around 11:50 am on 31 August 1988. The inquest and the police investigation had run their course by 1990 and the matter rested there until 2005.

1. The PONI Report

1. In February 2005, Mr Dalton’s son Martin lodged a complaint with the office of the Police Ombudsman for Northern Ireland (“PONI”). Martin Dalton’s complaints focused on the failure of the police to alert the local community to the threat of a bomb which they knew had been planted in Kildrum Gardens. His concern was that the police had failed to warn in order to protect a police informant and had thereby failed to uphold his father’s right to life. He also complained that the police had failed properly to investigate his father’s death.

1. The Office of the PONI was established by the Police (Northern Ireland) Act 1998 for the purpose of carrying out independent investigations of complaints relating to, amongst other things, the conduct of the police. The PONI is empowered to investigate historical complaints by the Royal Ulster Constabulary (Complaints etc) Regulations 2001 (SI 2001/184) if the PONI considers that there are grave and exceptional circumstances.

1. The PONI, Dr Michael Maguire, issued a public statement on 10 July 2013 (“the PONI Report”). He described the work carried out by his investigation team, gathering documents including intelligence from various sources, launching a public appeal for witnesses and interviewing some of the witnesses. At the outset of his Report, the PONI stated that he was clear that the responsibility for the deaths of Mr Dalton, Mrs Lewis and Mr Curran rests with those who planted the bomb. The scope of his investigation was to determine if there was any evidence of police misconduct or criminality in relation to the matters raised by the complaints.

1. He found that during July and early August 1988, the police were very aware of potential terrorist activity in and around Kildrum Gardens as a result of phone calls and intelligence they had received (para 7.6). On 5 August 1988, Special Branch received intelligence, assessed as reliable, that republican paramilitaries intended to plant a booby-trap type bomb in a house in the Derry/Londonderry area, and then stage an incident designed to prompt police officers to carry out enquiries during which they would be targets of the concealed bomb. Various incidents were then analysed by the PONI, incidents which the Dalton family believe pointed the police to the fact that 38 Kildrum Gardens was that house.

1. First, there was an incident on 25 August 1988 where a car that might have been involved in an attack on a police barracks at Rosemount Police Station had been found late that evening outside the block of flats in Kildrum Gardens with its doors open. A call to the police told them that a man had been seen running from the car, shouting that there was a bomb in the car. The car then exploded in the middle of the night. The PONI found that the army officer tasked with dealing with the abandoned car viewed the incident as an attempt to lure security personnel into that area and to ambush them. The vehicle was not examined until daylight. The remains of an IRA improvised grenade were recovered from inside the car; probably that had detonated the larger bomb inside the car. The police were not able to determine if the car had been used in the attack on Rosemount Police Station but did record that it was clear that terrorists intended to kill security forces who would have examined the vehicle.

1. The second incident occurred two days later, just after midnight on 28 August 1988 when there had been a robbery at a fish and chip shop. One of the robbers had apparently dropped a charity event application form bearing the name and address of Person A. The form was handed to the police by one of the shop staff. A Detective Sergeant at the time, now retired, had been advised not to pursue enquiries with Person A.

1. Thirdly, on 25 August 1988 a member of staff at St Patrick’s Care Home where Person B lived reported to the police that he had absconded. The police were aware that on previous occasions this friend had gone to stay with Person A in Kildrum Gardens but they did not initiate any enquiries about the safety of Person B. There was no evidence to suggest that the police knew, prior to the explosion on 31 August, that Person A and Person B had been abducted. Early on the morning of 30 August, an anonymous call was made to the Care Home claiming that Person B was staying with Person A at 38 Kildrum Gardens and that he might be at risk there. The caller asked the staff member at the Care Home if it would be possible to pass the message on to the police but it appears the message was not passed on to the police.

1. The PONI found that the police interpreted these incidents as an attempt by the IRA to lure them into a trap. Of particular relevance to these proceedings was the decision of the police force at 4:56 pm on 26 August 1988 to declare that an area including Kildrum Gardens was placed “out of bounds” until further notice. The instruction directed that there were to be no police foot patrols, vehicular movement, stopping or transit in the area. This information was recorded in the local police station’s record and army operations were also informed: para 7.56. The PONI said that an area would be placed “out of bounds” for two reasons. First, if it was suspected or known that an explosive device or ambush was likely within the particular area; or secondly if a covert operation by security forces was taking place or planned to take place in that particular area: para 6.10. He said that in relation to the first reason:

   1. … the decision to designate an area as ‘out of bounds’ was taken by a Sub-Divisional Commander (or their deputy) on receipt of information to the effect that an imminent threat to life existed in a particular geographical area. The designation made it clear that no police patrols were to enter that area without the prior approval of the Sub-Divisional Commander, or where relevant from local Special Branch officers, who had consulted their supervisors before approving the same.

   1. Prior to lifting restrictions on an area that was ‘out of bounds’, the Sub-Divisional Commander had to decide whether a full clearance operation of the whole ‘out of bounds’ area was necessary. The areas were purposely kept as small as possible to contain the threat and to ensure that the scale of policing activity was maintained as far as possible. In respect of areas so designated, records were maintained to include details such as the parameters of the ‘out of bounds’ area imposed and parties notified.”

1. Applying Finucane as modified by McQuillan, this case falls outside the outer reaches of the 12 year temporal limit and so (given that there is no question of the “convention values” test being satisfied in this case) the court does not have (temporal) jurisdiction. If a further reason is needed not to overturn past precedents or to depart from obiter dicta, it is that overruling the decision in Finucane and departing from the rationalisation in McQuillan would make no difference to the decision on whether there was a genuine connection in this case (and, moreover, the appeal would be allowed in any event given our decision – see para 324 above - on Issue 3).

1. The AGNI therefore succeeds on Issue 1 albeit that we firmly reject the submissions put forward by Mr McGleenan, on behalf of the AGNI, that Finucane should be overruled and that the obiter dicta in McQuillan should be rejected.

1. It can be seen, especially from paras 333 – 334 and 337 above, that we agree with the summary of their conclusions on the “genuine connection” test set out by Lord Hodge, Lord Sales and Lady Rose, at para 172 of their judgment.

1. Conclusion

1. For the reasons we have given, we would allow the appeal.