In the aftermath of the devastating fire at Grenfell Tower which has claimed the lives and homes of so many people, the UK government does not only bear moral responsibility to the victims and their families to investigate the matter and ensure full transparency and accountability. In fact, the government bears a legal responsibility to investigate what took place and ensure full accountability for any wrong-doing; this duty emanates from the right to life enshrined in Article 2 of the European Convention on Human Rights, transposed into UK law by the Human Rights Act.
The right to life enshrined in Article 2 of the European Convention on Human Rights imposes a number of obligations on the State. The State must refrain from action which takes life except where this is no more than absolutely necessary in very narrow circumstances. But the State also bears positive obligations to protect life: these are duties to take positive steps to protect life or otherwise vindicate the right to life. There are general, operational, investigative and redress-focused positive obligations under Article 2:
- General positive obligations consist of the framework duty to protect the right to life by law and through establishing appropriate institutions and mechanisms for the protection of life and the prevention of unlawful takings of life.
- Operational positive obligations consist of duties to take steps to protect individuals against real and immediate risks to life, as well as duties to take steps to plan State operations in (potentially) life-endangering circumstances in a way that minimises risk to life.
- Investigative obligations consist of duties to investigate suspicious deaths.
- Redress-focused obligations encompass duties to secure redress, through compensation and/or through the criminal process, for breaches of the right to life.
I will focus on the investigative duty, in light of Theresa May’s announcement of an inquiry and the parallel launch of a criminal investigation into Grenfell. The investigative duty demands an investigation into any suspicious death which may involve either direct or indirect State responsibility. In the case of Öneryıldız v Turkey, decided in 2004 by the Grand Chamber of the European Court of Human Rights, the applicant lived in slum dwellings in Istanbul surrounding a rubbish tip. The tip exploded because of the decomposition of the refuse and killed nine of his relatives. The Court found that the case disclosed a failure by the State to protect life as the governmental authorities involved had not taken adequate measures to prevent a methane explosion and protect the nearby inhabitants from such risk. The Grand Chamber also found that a credible suspicion of such failure to protect life triggered an investigative duty, which the Turkish government had also failed to discharge. Similarly, the Grenfell disaster raises credible suspicion of governmental failings (I will not document these, as they now stand to be subject to a hopefully rigorous and thorough investigation) and clearly triggers the investigative duty under the right to life.
The components of an Article 2-compliant investigation are as follows:
the authorities must act of their own motion in initiating the investigation;
the investigation must be independent and impartial;
the investigation must be effective;
the investigation must be prompt and proceed with reasonable expedition;
the investigation must be sufficiently open to public scrutiny; and
the next of kin of the deceased must be involved in the investigation to the extent necessary to safeguard their interests.
(These elements have emerged out of a number of cases, prominent ones being cases involving Northern Ireland, such as: Hugh Jordan v UK (Application number 24746/94), 4 May 2001; McKerr v UK (Application number 28883/95), 4 May 2001; Kelly & Others v UK (Application number 30054/96), 4 May 2001; Shanaghan v UK (Application number 37715/97), 4 May 2001; McShane v UK (Application number 43290/98), 28 May 2002; Finucane v UK (Application number 29178/95), 1 July 2003.)
Failings which have led to the finding of a violation of the investigative duty under Article 2 by the European Court of Human Rights have included:
a lack of independence of the officers investigating the incident from the officers implicated in the incident;
a lack of public scrutiny, and information to the victim’s family concerning the investigation, including any reasons for non-prosecution;
the investigation did not allow for findings which might play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed;
non-disclosure of witness statements prior to witnesses’ appearance, which prejudiced the ability of the deceased’s family to participate in the proceedings;
non-compellability of key witnesses;
public interest immunity certificates preventing the examination of matters relevant to the outstanding issues in the case;
lack of prompt commencement and/or reasonable expedition of proceedings;
lack of investigation into allegations of collusion;
lack of legal aid for the representation of the victim’s family in the proceedings.
The State is expected to discharge the investigative duty by taking all reasonable steps to this end, a criterion which establishes both the requirement of positive steps and its limits, allowing for some concrete, unavoidable impediments to the investigation; at the same time, such reasonable steps must be adequate in ensuring that the investigation fulfils the criteria outlined above, notably the criterion of effectiveness. It is important to note that underlying these criteria is an expectation of good faith efforts on the part of the State and its institutions. If good faith can be shown to be lacking, arguments that reasonable steps have been taken are not going to be considered satisfactory.
For the investigation into the Grenfell disaster to be Article 2-compatible, the families of victims and the missing must be involved and represented, with legal aid support, throughout the proceedings, which should be thorough, prompt, and orientated towards establishing the full facts and all factors contributing to the loss of life, as well as pursuing accountability for any wrong-doing.
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