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

Introduction:

The following article will provide an overview and analysis of the recent case In the matter of an application by Rosaleen Dalton for Judicial Review (Northern Ireland). In judicial review cases, the Supreme Court will assess the lawfulness of an action made by a public authority, and possibly declare the action as incompatible with the rights provided in the Human Rights Act 1998. This case is concerned with the obligation on public bodies to investigate possible failures, and whether reviews can be conducted when potential rights infringement occurred before the passage of the 1998 Act.

Background of the case:

In Derry, 1988, Sean Dalton lost his life when he unintentionally set off a bomb at the house of his neighbour who he had gone to visit. The Provisional Irish Republican Army (IRA) later took responsibility for the bomb and the police conducted an investigation, but this did not lead to a charge or conviction. A 1989 inquest concluded that Sean Dalton died from injuries caused by the explosion and there was little further investigation.

In 2005 Sean Dalton’s son filed a complaint with the Police Ombudsman of Northern Ireland about the conduct of the police before his father’s death and their consequent investigation. The Police Ombudsman’s role is to impartially handle complaints about the actions of police officers, and in this case produced a report in 2013, finding that police had failed to correctly investigate Sean Dalton’s death. Moreover, the Ombudsman found that some police officers refused to cooperate in the report and some documents linked to the case were missing. Later in 2013, Sean Dalton’s family requested that a further inquest be conducted by the Attorney General of Northern Ireland, who is the chief legal adviser to the Northern Ireland Executive and can direct a coroner to hold an inquest into a death. However, the Attorney General refused this request in 2014.

Proceedings:

In 2015, Sean Dalton’s daughter, Rosaleen, challenged the Attorney General’s refusal in the High Court of Northern Ireland, on the grounds that the refusal to conduct an inquest goes against the state’s obligation to investigate deaths that occur in circumstances that potentially engage the state’s responsibility – an obligation found under Article 2 of the European Convention on Human Rights, which was implemented into UK law through the passage of the Human Rights Act 1998. Article 2 of the Convention protects one’s right to life, meaning that nobody, including the
Government, can try to end your life and that the Government should take measures to safeguard life by passing laws and, on occasion, taking steps to protect you if your life is at risk. The Attorney General argued against Rosaleen Dalton’s appeal to the High Court, stating that the Human Rights Act, which came into force in the year 2000, holds no obligation to investigate deaths that occurred more than 12 years before it’s passage. The High Court of Northern Ireland dismissed Rosaleen Dalton’s challenge, leading her to appeal to the Court of Appeal of Northern Ireland, and in 2020 her appeal was allowed. Following the Court of Appeal’s decision, the Attorney General appealed to the
UK Supreme Court, the highest court of appeal.

Ruling of the Supreme Court and Reasoning:

The Supreme Court allowed the appeal of the Attorney General, noting that the death of Sean Dalton occurred too long before the introduction of the Human Rights Act into UK law, and there would only be a limited practical benefit to a further inquest. However, the Supreme Court rejected the Attorney General’s proposal to depart from the decision in the case In re Finucane [2019] UKSC7, which held that the obligation to investigate deaths under Article 2 of the European Convention on Human Rights does not extend to deaths that occurred before the commencement of the Human Rights Act in 2000 unless there is a “genuine connection” between the death and the commencement date or the “Convention values” test was satisfied. A genuine connection is made up of two elements, the time connection between the event resulting in death and the critical date (the date the Human Rights Act 1998 came into force, 2nd October 2000), which is usually only satisfied when the event occurred 10 or less yeas before the critical date, and a condition that “much of the investigation into the death took place or ought to have taken place in the period following [the critical date]”, as stated in Janowiec v Russia (2014) 58 EHRR 30. The Convention values test is satisfied when there is a need to ensure the real and effective protection of the guarantees and the underlying values of the Convention. The Supreme Court noted that the reasoning in Finucane was confirmed in the earlier case re McQuillan (2021) and there was no reason to depart from this, however some of the justices did state that Finucane had left the law in an “unsatisfactory state” due to its adoption of the complex approach to extending the time limit
under the genuine connection test.

Broader Implications:

The decision in this case upheld the previous guidelines for investigating deaths under article 2 of the European Convention on Human Rights when the death occurred before the enactment of the Human Rights Act into UK law. As Lord Reed commented, many cases involving article 2 concern deaths that occurred in Northern Ireland during the Troubles, and changes made to the law could “affect the long and difficult process of reconciliation between the different sides of that community.”

Written by Eliza Liddicott