Supreme Court finds Attorney General of NI not compelled to investigate 1988 IRA bomb death

About this case:

• Citation:
  [2023] UKSC 36
• Court:
  UK Supreme Court

It was the position of the AGNI that the Human Rights Act 1998 did not impose any procedural requirement to investigate as the death occurred more than 12 years before it came into force. The respondent, Rosaleen Dalton, had succeeded in having the matter remitted to the AGNI on first appeal.

The appeal was heard by Lord Reed, Lord Hodge, Lord Sales, Lord Leggatt, Lord Burrows, Lady rose, and Dame Siobhan Keegan. Tony McGleenan KC and Nicholas Compton appeared for the appellant and Fiona Doherty KC and Malachy McGowan for the respondent. Four separate opinions were issued by the judges, who unanimously allowed the appeal, with differences on the approach to particular cases cited in submissions.

Absent exceptional circumstances

On 31 August 1988, the respondent’s father, Sean Dalton, died in a bomb explosion in Derry/Londonderry when he accidentally triggered the device. While the Provisional IRA took responsibility for the bomb, no-one was charged in connection with the incident. A 2013 report by the Police Ombudsman of Northern Ireland found that the police had failed to thoroughly investigate Mr Dalton’s death, and noted that his investigation was hampered by missing documents and police officers refusing to co-operate.

Mr Dalton’s family asked the appellant to open a fresh inquest into his death, reasoning that a coroner could compel people to answer questions, but this request was refused in October 2014. The respondent challenged the refusal in the High Court of NI, but had her cased refused by Deeny J, and succeeded on appeal to the Court of Appeal in having the matter remitted to the AGNI for re-consideration.

It was argued by the respondent that there was some flexibility in the 10-year cutoff date under the 1998 Act, relying on the decision of the Supreme Court in re Finucane (2019). The appellant sought for the court to depart from the reasoning in Finucane and maintained a contention that the Act did not impose a procedural obligation to investigate deaths that took place more than, at most, 12 years before 2 October 2000, in the absence of any justification from exceptional circumstances.

Limited practical benefit

It was unanimously held by the Supreme Court that the AGNI was correct not to investigate further, as Mr Dalton’s death not only occurred more than ten years before the commencement date. However, there was a difference of opinion between the judges as to whether Finucane had been wrongly decided.

In his judgment on the main issue of appeal, Lord Leggat explained: “Given the very limited practical benefit that any further inquest or other public inquiry could reasonably be expected to achieve, Deeny J was also right to take into account the costs involved of such an inquiry and the choices which must be made in terms of priorities and resources. This is plainly an important factor in the context where there have in recent years in Northern Ireland been many calls to hold fresh inquests in historic cases.”

He concluded: “Such proceedings, when undertaken, are inevitably made more difficult, time-consuming and costly by the passage of time and, in allocating resources, it is necessary to decide on priorities. The Attorney is well placed to make those decisions and was entitled to conclude that in the present case it would be disproportionate to hold a new inquest.”

In a judgment co-written by Lord Hodge, Lord Sales, and Lady Rose said of the Finucane case: “In our view, the adoption in Finucane of the multifactorial approach to extending the time limit under the genuine connection test was an error which left the law in an unsatisfactory state. Proper interpretation of the HRA involves application of a modified version of the mirror principle by applying the genuine connection test set out in the Strasbourg case law with the adaptation necessary to accommodate adjustment of the critical date to 2 October 2000, when the HRA came into effect.”

They continued: “It is far more appropriate that the genuine connection test should apply with a high degree of certainty as to time limit, so that all parties can know where they stand and the courts have a clear rule to apply.”

Long and difficult process

In support of the Finucane decision, Lord Reed said: “Virtually all the leading cases in our domestic case law on this issue have concerned deaths occurring in Northern Ireland during the Troubles. 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.”

He added: “Less than two years ago, an enlarged constitution of this court considered the reasoning in Finucane in the case of re McQuillan (2021). 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.”

Lord Burrows and Dame Siobhan concluded: “The rationalisation given in McQuillan remains valid and should not be departed from. Although strictly speaking obiter dicta, that rationalisation was carefully considered by the panel of seven justices of the Supreme Court. To depart from that now by insisting on a rigid ten-year period would not only undermine the rationalisation put forward by the Supreme Court but would have the unfortunate consequence of overruling Finucane. There is no justification or need to do so.”

The appeal was therefore allowed, with the court holding that the respondent could not challenge the AGNI’s decision.