Article 2 ECHR does not impose an obligation on a contracting state to explain all suspicious or unnatural deaths
11 August 2009
In the case of Niven, Petitioner  CSOH 110, Lord Malcolm has determined that Article 2 of the European Convention on Human Rights ("ECHR") does not impose an obligation on contracting states to explain all suspicious or unnatural deaths. The case is important in highlighting that investigations are a means to ensuring compliance with the ECHR and not an end in themselves. What is required in any given case will be highly dependent on the individual circumstances of the case in question.
In 1995 an individual was found guilty at the High Court of murdering Dorothy Niven. An appeal against conviction was lodged on the basis that fresh evidence had emerged. The fresh evidence was subsequently admitted by the appeal court. The Crown conceded that in light of the fresh evidence, the conviction could not be supported. The murder conviction was quashed. There was no application for a fresh prosecution.
The family of Dorothy Niven subsequently sought an explanation as to the circumstances of her death. Correspondence took place between the family's solicitor and Crown Office. Dorothy Niven's family wished to have an inquiry into her death. The Lord Advocate determined that in the circumstances it was not appropriate to hold a fatal accident inquiry.
Dorothy Niven's mother presented an application for judicial review challenging the decision of the Lord Advocate which refused a request for a fatal accident inquiry to be held into the circumstances of the death her daughter. She sought declarator that she was entitled to an independent, effective and reasonably prompt public enquiry into the death of her daughter and argued that the failure to provide such an inquiry was incompatible with Article 2 ECHR and the state's obligation in light of the article to ensure that deaths are properly investigated such that full facts are brought to light.
Lord Malcolm held that Article 2 of the ECHR obliges the contracting state to ensure that the right to life is protected by law. This implies certain procedural safeguards. The key was whether, in circumstances such as those at the heart of the petition, the state had complied with this obligation. In the normal course of events, a criminal trial with an adversarial procedure before an independent and impartial judge must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and attribution of criminal responsibility. Failure to obtain a conviction or answers to main questions does not automatically lead to non-compliance with Article 2 ECHR.
Lord Malcolm stressed that it is necessary to focus on the particular circumstances under consideration and ask whether the investigations carried out to date have been effective investigations. The minimum standards required will vary according to the specific facts of the case. However, it would be wrong to assume that an investigation in the form of an inquest or a fatal accident inquiry is required in all cases where previous investigations have failed to explain the circumstances of a suspicious death. The purpose of Article 2 is not to ensure that all suspicious deaths are fully explained, but rather that the state is behaving in a manner which is consistent with its obligation to comply with the substantive provisions in Article 2.
In respect of Ms Niven's death an appropriate mechanism to enforce the criminal law was operated according to the information available to the Crown. It was done in good faith. The fact that the investigations carried out to date in respect of Dorothy Niven's death have reached no firm conclusion does not indicate non-compliance by the state with its Article 2 duties. In the absence of any significant additional information or new suggested lines of enquiry, the state was not obliged under Article 2 to order a further investigation into Dorothy Niven's death. The application for judicial review was therefore refused.
The case highlights that an investigation is to be assessed, not by the outcome, but by whether the state is respecting and fulfilling its obligations under Article 2 ECHR. In general, a criminal investigation which is capable of identifying responsibility for a death will be sufficient, even if it fails to identify a culprit or cause of the death. Therefore, Article 2 does not impose a blanket obligation on contracting states to explain all suspicious or unnatural deaths.
Ruth Crawford QC acted successfully for the Scottish Government Legal Directorate
A copy of the decision is available at:
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