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Cite as: [2008] ScotCS CSOH_21

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[e1] 

 

OPINION OF LORD MACKAY OF DRUMADOON

 

PETITIONS

 

BY

 

ROSALEEN KENNEDY and Jean Black

 

for

Judicial Review of Decisions of

 

THE LORD ADVOCATE AND

SCOTTISH MINISTERS

 

SUMMARY

5th February 2008

 

These petitions were raised by the relatives of two people, who died after they had become infected with the Hepatitis C virus. That infection occurred whilst they were under the care of the National Health Service in Scotland. The Lord Advocate refused to hold Fatal Accident Inquiries into the deaths of the deceased. The petitioners seek the judicial review of those decisions. The petitioners also seek review of the refusal of the Scottish Ministers to set up public inquiries into those deaths.

 

Lord Mackay of Drumadoon has held that both the Lord Advocate and the Scottish Ministers have acted in a manner incompatible with the Convention rights of the deceased. Lord Mackay has quashed the decisions of the Lord Advocate refusing to hold Fatal Accident Inquiries into the deaths of the deceased. He has also held that both the Lord Advocate and the Scottish Ministers have statutory powers under which they could set up public inquiries into the deaths of the deceased and that such enquiries would satisfy the Convention rights of the deceased.

 

Before making any further orders, Lord Mackay has arranged a further hearing in respect of each petition to allow the Lord Advocate and the Scottish Ministers a period of time within which to consider what action they intend to take in the light of his rulings.

 

The two petitions for judicial review were raised by Mrs. Rosaleen Kennedy, the daughter of Mrs. Eileen O'Hara, who died on 7 May 2003, and Mrs Jean Black, the widow of the Reverend David Black, who died on 31 October 2003. Some years prior to their deaths both Mrs. O'Hara and Mr. Black became infected with the Hepatitis C virus. In each instance, that occurred as a consequence of the medical treatment they received whilst patients of the National Health Service in Scotland.

 

The petitions were raised against the Lord Advocate and the Scottish Ministers. It is accepted on behalf of both the Lord Advocate and the Scottish Ministers that Mrs. O'Hara's death was contributed to by her having become infected with the Hepatitis C virus as a consequence of blood transfusions. It is also accepted that Mr. Black's death was contributed to by his having become infected with the Hepatitis C virus as a consequence of blood transfusions and treatment with blood products. Mrs. O'Hara and Mr. Black became infected because some of the blood donations used in blood transfusions and for the preparation of blood products had been contaminated with the Hepatitis C virus (paras. [4] - [7]).

 

Mrs. O'Hara and Mr. Black were amongst more than 4000 individuals who became infected with the Hepatitis C virus during the 1980s, as a consequence of their being transfused with blood or blood products contaminated with the Hepatitis C virus. The circumstances in which those individuals became infected with the Hepatitis C virus have given rise to public concern. The Scottish National Blood Transfusion Service and the National Health Service in Scotland did not introduce any form of heat treatment of blood products until April 1987. Such heat treatment could have eliminated the possibility of patients being treated with blood products being infected with the Hepatitis C virus. The Scottish National Blood Transfusion Service did not introduce any screening test for blood donations to determine whether they were contaminated with the Hepatitis C virus until 1 October 1991 (paras [8] - [19]).

 

The petitioners have never made any criticisms of any of the doctors and other medical staff who were directly involved in the care of their relatives. Their concerns relate to the circumstances in which blood donations from donors infected with the Hepatitis C virus came to be used in the blood transfusions, which Mrs. O'Hara and Mr. Black both received, and in the blood products with which Mr. Black was treated.

 

Over several years, the petitioners have called for public inquiries to be held into the deaths of their relatives. On 18 April 2006, the Health Committee of the Scottish Parliament called upon the Scottish Ministers to set up an inquiry into matters pertaining to Hepatitis C in Scotland.

 

On 15 June 2006, the Lord Advocate decided not to seek Fatal Accident Inquiries into the deaths of Mrs. O'Hara and Mr. Black. On 16 June 2006 the Health Minister of the Scottish Executive issued a press release giving notice of the decision of the Scottish Ministers refusing to hold a full judicial inquiry into the infection of patients with Hepatitis C in Scotland through NHS treatment (paras [18] - [29]).

 

Lord Mackay of Drumadoon has held that since the deaths of Mrs. O'Hara and Mr. Black, both the Lord Advocate and the Scottish Ministers have acted in a manner incompatible with the Convention rights of the deceased. Article 2 of the European Convention of Human Rights provides that " everyone's right to life shall be protected by law...".

 

When a person dies following upon treatment in hospital, obligations arise under Article 2 which require the United Kingdom to have in place a system that is capable of providing a practical and effective investigation of the facts relating to the death of that person and the determination of any civil liability relating to their death. That system can include the possibility of criminal, civil or disciplinary proceedings and the initiation of an investigation by the State, which in respect of a death in Scotland could include the Lord Advocate seeking a Fatal Accident Inquiry before the Sheriff or the setting up of a public inquiry by the Scottish Ministers.

In the present cases, factual issues arise as to when each of Mrs. O'Hara and Mr. Black became infected with the Hepatitis C virus and whether the Scottish National Blood Transfusion Service and the National Health Service in Scotland could have introduced the heat treatment of blood products and the screening of blood donations by earlier dates than they did (paras. [91] - [97]).

 

On the basis of the submissions he received, Lord Mackay has reached the conclusion that there has never been any possibility of criminal proceedings founded upon the circumstances leading up to the death of either Mrs. O'Hara or Mr. Black. No disciplinary proceedings have ever been taken against any individual involved in the collection of blood donations or the supply of blood and blood products for the transfusion of Mrs. O'Hara and Mr. Black (paras. [102] - [105])

 

Lord Mackay has also reached the conclusion that whilst it would have been open to the each of the petitioners to have raised civil proceedings seeking damages, in the particular circumstances leading up to the deaths of Mrs. O'Hara and Mr. Black, there has never been any realistic prospects that such civil proceedings would have led to practical and effective investigations of the facts relating to those deaths (paras. [106] - [125]).

 

In the particular circumstances of these cases, Lord Mackay has reached the conclusion that the only means by which a practical and effective investigation into the death of either Mrs. O'Hara or Mr. Black could be achieved would be if the State were to initiate a public inquiry. That could be done by the Lord Advocate seeking the holding of a Fatal Accident Inquiry before a Sheriff or by the Scottish Ministers setting up a public inquiry under the provisions of the Inquiries Act 2005.

 

 

Given the continuing refusal of the Lord Advocate and the Scottish Ministers to set up such public inquiries, Lord Mackay has reached the conclusion that, in the particular circumstances relating to the deaths of Mrs. O'Hara and Mr. Black, the system in place to meet the State's obligations under Article 2 has not proved capable of providing a practical and effective investigation into either death. As a consequence both the Lord Advocate and the Scottish Ministers have acted in breach of the Convention rights of the deceased (paras. [126] - [128])

 

Lord Mackay quashed the decisions of the Lord Advocate not to hold Fatal Accident Inquiries into the deaths of Mrs. O'Hara and Mr. Black. He did so because the Lord Advocate had acted in breach of the Convention rights of the deceased and also on account of errors of law on the part of the Lord Advocate that were apparent in the letter of 15 June 2006 giving notice of the Lord Advocate's decisions (paras [127] - [134]) .

Lord Mackay refrained from setting aside the decision of the Scottish Ministers of16 June 2006, on account of the fact that the decision of the Scottish Ministers had been taken as being their response to a call for a public inquiry made by the Health Committee of the Scottish Parliament, rather than their reply to calls from the petitioners for inquiries into the deaths of Mrs. O'Hara and Mr. Black. In reaching that decision Lord Mackay also had regard to the fact that on 16 June 2007 the Scottish Government re-affirmed its commitment to hold a "general public inquiry" to "find out why people were infected with Hepatitis C through NHS Treatment". The remit, scope, and form of that inquiry have yet to be determined (paras. [16] and [146])

 

Lord Mackay took the view that it would be premature to grant any further orders against the Lord Advocate and the Scottish Ministers. He continued the petitions to a further hearing, to allow the Lord Advocate and the Scottish Ministers the opportunity to consider what action they intend to take in light of the terms of his Opinion.

 

A date for this hearing will be fixed in due course.

 

NOTE

This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document.

 

 


 

OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 21

 

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD MACKAY OF DRUMADOON

 

in the petitions of

 

 

ROSALEEN KENNEDY

Petitioner;

 

against

 

THE LORD ADVOCATE AND SCOTTISH MINISTERS

 

Respondents:

 

___________

 

JEAN BLACK

Petitioner;

 

against

 

THE LORD ADVOCATE AND

SCOTTISH MINISTERS

Respondents:

 

_______________

 

Petitioners: O'Neill, QC, Caskie; Thompsons

Respondents: Dewar, QC, Ennis; Solicitor to the Scottish Executive

 

5 February 2008

 

Introduction

 

[1] This Opinion follows upon continued first hearings in two petitions for judicial review. Dealing with those petitions in the order in which they were raised, the petitioner in the first petition is Mrs. Roseleen Kennedy. She is the daughter of Mrs. Eileen O'Hara, who lived in Scotland and died here on 7 May 2003, at the age of 72. In the first petition the Lord Advocate is the first respondent and the Scottish Ministers are the second respondent.

[2] The petitioner in the second petition is Mrs. Jean Black. She is the widow of the Reverend David Charles Black, who lived in Scotland and died here on 31 October 2003, at the age of 66. In the second petition the Lord Advocate is the first respondent and the Scottish Ministers are the second respondent.

[3] In this Opinion, I will refer to Mrs. Roseleen Kennedy as "the first petitioner", to Mrs. Jean Black as "the second petitioner", to the Lord Advocate as "the first respondent" and to the Scottish Ministers as "the second respondent".

[4] In her petition the first petitioner summarises the medical history of the late Mrs. O'Hara. During 1985 and again on 24 July 1991, Mrs. O'Hara received blood transfusions, whilst she was under the care and treatment of the National Health Service in Scotland ("the NHS in Scotland"). During November 1990, it was recorded in Mrs. O'Hara's medical notes that the functioning of her liver was giving rise for some concern, but that her blood had tested negative when screened for Hepatitis C. In October 1994 Mrs. O'Hara underwent further liver function tests. In March 1995 she was diagnosed as having screened positive for the Hepatitis C virus and she was advised of that diagnosis. It is averred on behalf of the first petitioner that when that diagnosis was made, it was ascribed by Mrs. O'Hara's consultant as having "presumably" been caused by the blood transfusions she had received.

[5] When Mrs. O'Hara died on 7 May 2003 no post-mortem examination was carried out. Her death certificate contained no reference to Hepatitis C. Mrs. O'Hara's death was not reported to the Procurator Fiscal until 26 May 2004, when the first petitioner's solicitor wrote to the Procurator Fiscal requesting that a Fatal Accident Inquiry ("FAI") be held. In her petition the first petitioner avers that her late mother's death was caused, or materially contributed to, by her infection with the Hepatitis C virus in the course of the blood transfusions. For the purposes of these proceedings both respondents accept that Mrs. O'Hara's death was contributed to by her becoming infected with the Hepatitis C virus during the blood transfusions she received whilst under the care of the NHS in Scotland.

[6] In her petition the second petitioner summarises the medial history of her late husband, the Reverend David Charles Black. Mr. Black was a haemophiliac. During the late 1980s and subsequently, he received treatment by way of Factor VIII blood products and blood transfusions, whilst he was under the care of the NHS in Scotland. It is averred by the second petitioner that during a medical examination in 1985 Mr. Black was found to be generally well. In October 1987, however, he was found to have ulcers on his oesophagus, consistent with infection with hepatitis. Around 1989 he was diagnosed as having Non A Non B Hepatitis. Prior to the development of a test for the isolation and identification of the Hepatitis C virus during the Spring of 1989, that was how the medical profession referred to the virus that subsequently came to be known as the Hepatitis C virus. The history of the identification and naming of the Hepatitis C virus is summarised in A and others v National Blood Authority and another [2001] 3 All E R 289, (per Burton J. at pages 300-1). Around 1990 Mr. Black was diagnosed as suffering from Hepatitis C.

[7] When Mr. Black died a post-mortem examination was instructed by the Procurator Fiscal at Falkirk. The consultant pathologist, who carried out the post-mortem examination, certified that the cause of Mr. Black's death was Hepatocellular carcinoma in his liver; due to Hepatitis C; due to the transfusion of blood products; due to haemophilia. A copy of the post-mortem report was sent to the Procurator Fiscal. For the purposes of these proceedings both respondents accept that Mr. Black's death was contributed to by his having been infected with the Hepatitis C virus during treatment with blood products and blood transfusions, whilst he was under the care of the NHS in Scotland. It is averred on behalf of the petitioner that Mr. Black was infected with the Hepatitis C virus during the course of blood transfusions and Factor VIII treatment he received between 1985 and 1987.

 

Infection with the Hepatitis C virus in Scotland

[8] It is a matter of public record that over a period of years from around 1980 a large number of individuals, who had been under the medical care of and receiving treatment from the National Health Service in Scotland, received blood transfusions, blood products and tissue transfer, which infected them with the Hepatitis C virus. Over 4000 individuals were infected. Some of those individuals were haemophiliacs. Others were not. A number of those individuals have died, including Mrs. O'Hara and Mr. Black. Amongst those who remain alive, some have developed serious medical conditions, which have caused continuing pain and disability and have led to reduction of life expectancy.

[9] It is also a matter of agreement that the circumstances in which those individuals came to be infected with Hepatitis C virus, the consequences of their infection and the National Health Service's handling of the public health issues involved have given rise to public concern, including continuing calls in the Westminster Parliament, in the Scottish Parliament and in the media for the holding of a public inquiry in Scotland. Those calling for an inquiry have included Mr. Frank Maguire, a principal in the firm of solicitors that acts for both petitioners. Those calling for a public inquiry have maintained that a number of issues of public concern should be investigated at a public inquiry. These include (a) the failure of the Scottish National Blood Transfusion Service ("SNBTS") and the NHS in Scotland to introduce any screening test for blood donations used in the preparation of blood products and for blood transfusions in Scotland until 1 October 1991, (b) the failure on the part of the NHS in Scotland to introduce prior to April 1987 any form of heat treatment in the preparation of blood products for routine clinical use; and (c) alleged systemic failures on the part of the NHS in Scotland in (i) investigating the reasons why the widespread infection of individuals with the Hepatitis C virus from blood and blood products occurred, (ii) locating and diagnosing those individuals who might have been infected with the Hepatitis C virus, (iii) ensuring that the individuals concerned received the appropriate treatment, counselling and support and (iv) taking steps to minimise the risk of such individuals cross-infecting others with the Hepatitis C virus.

[10] The SNBTS has always been a public body. It is currently a division of the Common Services Agency, which is a Non-Departmental Public Body constituted under the provisions of the National Health Service (Scotland) Act 1978. The Common Services Agency is known as NHS National Services Scotland and is accountable to the Scottish Government. Its statutory duties include the provision of supplies of human blood for blood transfusion and the production of blood products (see Article 3(a) of the National Health Service (Functions of the Common Services Agency) (Scotland) Order 1974).

[11] There was, as I have indicated, no dispute during the hearing before me as to the existence of a level of public concern about the circumstances in which individuals had come to be infected with the Hepatitis C virus and the consequences for such individuals of having developed such infection. That public concern is also clear from the contents of certain of the productions placed before me, including the "Report on Hepatitis C and the heat treatment of blood products for haemophiliacs in the mid-1980s" prepared by officials within the Scottish Executive's Health Department during 1999-2000, the "Report of the Expert Group on financial and other support" dated 2003, which was commissioned by the Scottish Executive and prepared by a group chaired by Lord Ross, the retired Lord Justice Clerk, and Official Reports of meetings of the Health Committee of the Scottish Parliament (and papers placed before that Committee). On 18 April 2006, the Committee took a decision calling upon the Scottish Executive to hold a public inquiry into matters pertaining to Hepatitis C in Scotland, with particular reference to the adequacy of the steps taken, once the screening of blood donors had been introduced in 1991, to trace those patients in Scotland who had previously been supplied by the SNBTS and the NHS with blood transfusions and blood products derived from infected donors.

[12] The first of these reports was published in October 2000, after the Minister for Health and Community Care in the Scottish Executive had asked Scottish Executive officials to investigate the facts surrounding the heat treatment of blood products for haemophiliacs in the mid 1980s. The officials were asked to examine the evidence available to assess, amongst other issues, "whether patients in Scotland with haemophilia were exposed to the risks of the Hepatitis C virus longer than they should have been, given the state of knowledge at the time". The findings of the group of officials included that the SNBTS had been around 18 months behind the Bio Products Laboratory in England in producing a heat-treated product which was subsequently found to have eliminated the Hepatitis C virus but that "there were understandable technical reasons why that was the case".

[13] From these papers it would appear that amongst the principal issues that give rise to general public concern are (i) why the NHS in Scotland did not introduce heat treatment for blood products in Scotland until April 1987, which was approximately 18 months later than the Bio Products Laboratory in England had introduced such treatment for blood products in England, and (ii) why the SNBTS had delayed the introduction of screening blood donations in Scotland for the Hepatitis C virus until September 1991, in particular when such screening had been introduced in certain parts of England with effect from 1 July 1991. Later in this Opinion, in para. [130], I refer to the factual issues as to when Mrs. O'Hara and Mr. Black may have become infected with the Hepatitis C virus.

[14] I should also refer briefly to an inquiry that is currently underway in England. On 19 February 2007 Lord Morris of Manchester announced that a privately funded independent public inquiry was being set up under the chairmanship of a former Solicitor General, Lord Archer of Sandwell QC. The terms of reference of this inquiry are:-

"To investigate the circumstances surrounding the supply to patients of contaminated NHS blood and blood products; its consequences for the haemophilia community and others afflicted; and further steps to address both their problems and needs and those of bereaved families".

[15] Lord Archer is being assisted in the inquiry by Lord Turnberg, immediate past President of the Royal College of Physicians, as Medical Assessor, by Dr Judith Willetts, Chief Executive Officer of The British Society for Immunology and by Dr Norman Jones, Emeritus Consultant Physician at St Thomas's Hospital. Lord Archer has called on patients, bereaved dependants, former health ministers and others to assist the inquiry, and hopes to receive the co-operation of the relevant Government departments. He has of course no power to compel witnesses and any findings or recommendations will have no binding or legal force. The parties setting up this inquiry have noted that "independent Public Inquiries have already been conducted into this very important issue of public health concern in Canada, Ireland and New Zealand, which have all achieved the unravelling of the facts surrounding this tragedy". It was originally envisaged that Lord Archer's inquiry would be concluded by November 2007, but there remains a measure of uncertainty as to when the report will be ready.

[16] Some time after the hearings before me concluded, the media carried reports that the second respondent had given a commitment to set up a public inquiry relating to the infection of individuals with the Hepatitis C virus. I arranged a By Order hearing so that I could be fully informed what the second respondent's intentions are. These were explained to me at the By Order hearing on 22 August 2007 and subsequently confirmed in writing on behalf of each of the first and second respondents. It is clear that the Scottish Government, which assumed office in May 2007, has given a commitment to hold a public enquiry to "find out why people were infected with Hepatitis C through NHS treatment". That commitment was re-affirmed at a meeting on 16 August 2007 between the Cabinet Secretary for Health and Wellbeing and members and representatives of the Scottish Haemophilia Forum and the Haemophilia Society, including Mr. Maguire, the solicitor who acts for the petitioners in the present petitions. It was explained to me that the proposed inquiry is to be a "general public inquiry". However, the remit, scope and form of the inquiry have yet to be determined. These matters will be considered further by the second respondent after the conclusion of Lord Archer's enquiry.

[17] At the By Order hearing it was also made clear that the parties wished me to finalise my Opinion, notwithstanding the second respondent's commitment to hold a public inquiry.

 

Steps taken by the petitioners to obtain public inquiries into the deaths of Mrs. O'Hara and Mr. Black

[18] I now turn to the history of events as far as the calls made for inquiries into the deaths of Mrs. O'Hara and Mr. Black and the raising of the present petitions are concerned. On 26 May 2004, the first petitioner's solicitor wrote on her behalf to the Lord Advocate calling upon him to request that a FAI be held in terms of section 1(1)(b) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 ("the 1976 Act") into the circumstances of the death of the Mrs. O'Hara. The letter indicated that the first petitioner's solicitor would regard the holding of a FAI as sufficient to fulfil the State's obligation in terms of Article 2 of the EU Charter of Fundamental Rights. The letter gave notice to the Lord Advocate that if he failed to respond to the letter within 14 days, or in the event that he decided that a FAI should not be held, the solicitor would seek instructions to raise proceedings for judicial review. Prior to the date of the letter, 26 May 2004, there had been no contact between the first petitioner and the Procurator Fiscal at Glasgow or the Crown Office.

[19] On 30 April 2004 the second petitioner's solicitor had written in similar terms on her behalf to the Lord Advocate. The second petitioner had had no contact with the Procurator Fiscal at Falkirk, following upon the post-mortem examination of the body of her late husband.

[20] Following dispatch of the letters of 30 April 2004 and 26 May 2004, correspondence ensued between the petitioners' solicitor on the one hand and officials of the Procurator Fiscal at Glasgow, the Crown Office and the Minister for Health and Community Care on the other hand. In that correspondence the petitioners continued to press the first respondent to hold FAIs into the deaths of Mrs. O'Hara and Mr. Black and the second respondent to hold a public inquiry into the deaths of Mrs. O'Hara and Mr. Black and indeed the deaths of other individuals, who had become infected with the Hepatitis C virus, whilst there were under the care of the NHS in Scotland. That correspondence was continuing when the petitions for judicial review were lodged and served on the respondents during May 2005. As at that date the first respondent has not intimated to the petitioners whether any decisions had been reached in respect of the requests to hold FAIs into the deaths of Mrs. O'Hara and Mr. Black and the second respondents remained unwilling to hold any public inquiries into those deaths.

[21] By letter dated 5 July 2005, Jim Brisbane, the Deputy Crown Agent, advised the petitioner's solicitor that he anticipated that the Lord Advocate would have made his decisions on whether or not to hold FAIs into the deaths of Mrs. O'Hara and Mr. Black by September 2005.

[22] First hearings in the petitions took place on 7 July 2005. The petitioners and respondents were represented by counsel. At these first hearings the Court was advised that the first respondent expected to take his decisions on the matters raised in the petitions by September 2005. The respondents were ordained to lodge answers to the petitions within 21 days and the petitioners were given a period of 7 days to adjust the petitions in response to these answers. Answers were intimated on 29 July 2005.

[23] Continued first hearings were held on 24 August 2005 and were further continued, in part to enable the first respondent to take decisions within the timescale indicated to the Court by his counsel on 7 July 2005. No decisions were made (or in any event intimated) by the end of September 2005.

[24] Continued first hearings were then fixed to enable the Court to consider the question of whether the Court should make orders in relation to the potential liability for expenses of the petitioners. The orders that were sought were comparable to the protective costs orders which are available in public interest litigation in England and Wales (see R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600). The motions were heard by Lord Glennie and refused by him on 15 December 2005 (McArthur v Lord Advocate 2006 SLT 170), on the grounds that on the basis of the information placed before him it would not have been reasonable for him to have held, in respect of either petitioner, (a) that having regard to the financial resources of the petitioner and the respondents it was fair and just to make an order and (b) that if an order was not made the petitioner would probably discontinue with her petition and would be acting reasonably in so doing. It is clear from what was said by Lord Glennie in para. [15] of his Opinion that only a limited amount of information was placed before the Court as to the financial position of either petitioner.

[25] In January and February 2006 the Health Committee of the Scottish Parliament held public hearings into the question of whether a public inquiry should be held into the infection of individuals with the Hepatitis C virus whilst they were in the care of NHS in Scotland. On 18 April 2006 the Health Committee came to the decision to call upon the second respondent to cause an independent public inquiry to be held. Details of the Health Committee's deliberations are to be found in the Official Reports of the Scottish Parliament for 31 January 2006 and 18 April 2006.

[26] During April 2006 further first hearings were fixed in these cases for 29 and 30 June 2006. By letter dated 15 June 2006 sent by the Deputy Crown Agent to the petitioners' solicitor, intimation was given of the Lord Advocate's refusal to seek FAIs under the 1976 Act into the deaths of inter alia Mrs. O'Hara and Mr. Black.

[27] The letter dated 15 June 2006 was in the following terms:-

"

ROSALEEN KENNEDY v LORD AVOCATE AND SCOTTISH MINISTERS

JEAN BLACK v THE LORD ADVOCATE AND SCOTTISH MINISTERS

 

PETITIONS FOR JUDICIAL REVIEW

 

I refer to the above matter and to the concurrent enquiry that has been made by the Crown into the circumstances of each of these deaths.

The Lord Advocate is deeply conscious of the extent of loss and suffering that has been caused through the transmission of the Hepatitis C virus over many years through blood products and the transfusion of blood. It is a matter of deep regret that so many individuals became innocent victims at a point prior to full screening for the virus becoming available and he would wish to extend his condolences to the next-of-kin in these cases and others who have been similarly affected. He also recognises that there has been continuing interest in the fate of those so affected and the deep and lingering sense of dissatisfaction that they may feel about the past events.

The Lord Advocate has, however, in the exercise of his duty to investigate deaths, decided that a Fatal Accident Inquiry is not merited in respect of any of these deaths. In reaching that conclusion, he has had regard to inquiries carried out by the Procurator Fiscal, a further consideration of the issues by Crown Office personnel, and a review by Crown Counsel of that material, and other relevant information available on the issue of Hepatitis C infection. Regard has also been had to the representations which have been made by the next of kin, and by you on their behalf, during the discussions with the Procurator Fiscal, in correspondence, and indeed in the pleadings.

The circumstances of each of these deaths have been examined individually. None of them falls into the category of being sudden, suspicious, accidental, unexpected or unexplained. In the light of the representations that you have made, consideration has focused on the relevance of Hepatitis C infection and the possibility that that may have occurred as a result of receiving infected blood.

In respect of the late David Charles Black, it is known that he was a haemophiliac who received blood products over an extensive period of his life. The issue of Hepatitis C in heat treatment of blood products for haemophiliacs has already been the subject of substantial investigation both in terms of the Scottish Executive Health Department's report of October 2000 and the investigation into allegations of criminality conducted by Crown Office in 2004.

In relation to the late Eileen O'Hara, it appears from the information available, that she contracted Hepatitis C as a result of a blood transfusion but at a point in time when no practical, preventative measures were available. Transfusion would have been appropriate at a point when it was believed to be essential for the patient's care.

In relation to the late Mr. Alexander McArthur, although it can be established that he became infected with Hepatitis C, this does not appear to have contributed to his death.

The deaths of these three individuals came under tragic circumstances, and naturally I would like to express our sincere condolences to the families and friends of all three. That said, none of the deaths falls into a category in which a Fatal Accident Inquiry is mandatory. Accordingly, the Lord Advocate could only order an Inquiry if it appeared to him to be expedient in the public interest to do so, on the grounds that the death occurred in circumstances such as to give rise to serious public concern. There are no issues surrounding the circumstances of these individual deaths which can be said to have caused such public concern, or which would otherwise necessitate a rehearsal of the relevant facts in a public forum.

Any wider issues of public concern surrounding the prevalence of the Hepatitis C virus, its isolation, the development of a screening test, and the management of infected patients, would be unlikely, in any event, to receive consideration within the remit of a Fatal Accident Inquiry. In addition, any such consideration would be a historical exercise which would be unlikely to produce any recommendations of relevance to modern circumstances. Any public concern that there may be in relation to the issue of Hepatitis C appears to relate to broader areas and to the circumstances of infection generally.

Having regard to the extent of the inquiry that has already been carried out into the issue of Hepatitis C infections, both within Scotland and elsewhere, to the examination of the individual circumstances of these deaths, and to the existence of other mechanisms available to affected parties, the Lord Advocate is satisfied that, insofar as Article 2 of ECHR may be engaged, the obligations of the State have been discharged. The actual nature of the process required, if Article 2 rights are engaged, varies according to context. There is no suggestion here of any use of force, lethal or otherwise, or of any other circumstances which would suggest an enhanced level of responsibility on the part of the State such as to justify any wider investigation than has taken place. The duty to make inquiry in respect of any death notified to the Procurator Fiscal as a result of Hepatitis C infection is particularly acute if there is uncertainty as to the circumstances of infection and a prevailing consequential risk to others as a result of these deaths. Neither factor is present in these cases.

Intimation of this decision would normally be made directly to the next-of-kin but, standing your position in this matter, and the fact that they are currently litigants against the Crown, I thought it appropriate to give intimation through you."

[28] By press release dated 16 June 2006 the second respondent made public their decision to refuse to hold an inquiry into the deaths of persons such as Mrs. O'Hara and Mr. Black, who had died consequent upon their infection with the Hepatitis C virus whilst under the care and treatment of the National Health Service in Scotland. By 16 June 2006 the provisions of the Inquiries Act 2005 ("the 2005 Act") were in force.

[29] That press release was in the following terms:-

"News Release

No public inquiry on Hepatitis C

16/06/2006

A public inquiry into infection with Hepatitis C through NHS treatment would be unlikely to uncover any new relevant evidence or information and would bring little benefit to the patients involved, Health Minister Andy Kerr said today.

The Minister has written to the Health Committee in response to their call in April for a full judicial inquiry. Mr. Kerr's detailed response sets out:

ˇ        the background to the UK-wide 'look back' exercise carried out between 1995-1997 to trace as many patients as possible who had contracted Hepatitis C through blood transfusions'

ˇ        continuing Scottish National Blood Transfusion Services (SNBTS) investigations of new cases;

ˇ        testing for Hepatitis C;

ˇ        communication with patients;

ˇ        the case for a public inquiry.

He said:

'I have put on record on a number of occasions our sympathy for those who have contracted Hepatitis C through NHS treatment. I want to reiterate those comments again today.

This has had serious consequences for the lives of many people, and we do not underestimate them. It is for this reason that the Scottish Parliament and Scottish Ministers took the lead in ensuring that payments were made under the Skipton Fund to those patients affected, recognising the suffering and hardship involved. The creation of a UK payments scheme has been a significant achievement and step forward.

The UK-wide look-back exercise was decided by UK Ministers prior to devolution, based on professional advice, and reflected considerations of proportionality and practicability. There can be no case for reopening these issues now. This exercise was a complex undertaking which was carried out in a targeted and robust way.

The look-back exercise was fully communicated at the time to the public and to doctors. There was advice available through a helpline to those who were concerned about the risks from transfusion, and advice to doctors on counselling for people at risk and how to arrange for testing. I would like to emphasise that testing and counselling are still available for anyone who considers they are at risk as a result of a transfusion before 1991. Anyone who has concerns can raise those with their GP and request testing.

A full judicial inquiry would be a major and time-consuming exercise which would depend on the recollections of witnesses about events which took place twenty or more years ago. This would make it difficult to construct a clear and detailed picture of what took place.

An inquiry would not add significantly to our understanding of how the blood supply became infected with Hepatitis C, or the steps needed to deal with problems of this kind now or in the future. The transmission of Hepatitis C through the blood supply took place in the period before testing was introduced in 1991, and at a time when there was limited scientific and medical knowledge about the condition and the outlook for patients. There is already substantial published evidence on how the understanding of Hepatitis C and its implications for blood donation, blood products and blood transfusion developed over time. A public inquiry would not add to this.

Practice in terms of communication between health professionals and patients, and assessing and communicating the risks of medical treatment, has changed significantly since the 1980s when these infections occurred and important lessons have been learned. It is highly unlikely that an inquiry would identify new issues or areas for improvement in practice for the future which have not already been discussed or implemented.

I have considered very carefully the points which were put before the Committee, and discussed by it on 18 April. I do not believe a public inquiry would either uncover any new evidence or information that is relevant to the causes of the infection of NHS patients through blood and blood products, or lead to significant lessons for the future.

It would be a diversion of effort from delivering and improving health services today. I cannot see that there is any possible justification for the efforts and costs that would be involved, or that this would bring any benefit to the patients involved. "

[30] After the letter of 15 June 2006 was received and the press release dated 16 June 2006 was issued, all the parties to the petitions engaged in extensive revisal of their written pleadings, in preparation for the continued first hearings which in due course came before me.

[31] Whilst that process was underway, by interlocutor dated 27 June 2006, the parties were ordered to lodge lists of the issues which they considered would require to be determined by the Court. The respondents did so, in respect of each of the petitions, in the following terms:-

"1. Whether, having regard to section 1(1) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, Article 2 of the European Convention on Human Rights, section 57(2) of the Scotland Act 1998 and section 6(2) of the Human Rights Act 1998, the first respondent was obliged to order a fatal accident inquiry (FAI) in the circumstances of this case.

2. Whether, in exercising his decision not to hold a FAI in the circumstances of this case, the first respondent exercised his discretion reasonably.

3. Whether, having regard to section 48(5) of the Scotland Act 1998, the Second Respondents had any power to order any such inquiry or an analogous inquiry (it not being clear what type of inquiry the petitioner seeks).

4. Whether, having regard to section 28(2) of the Inquiries Act 2005, the second respondent has any power to order any such inquiry or an analogous inquiry."

[32] The petitioners refrained from doing so. By letter dated 31 January 2007, addressed to the solicitor to the Scottish Executive (now the Scottish Government), who acts for both respondents, the solicitors for the petitioners intimated that senior counsel for the petitioners considered that the only issue that should be debated at the continued first hearings was whether or not the actions of the respondents since the deaths of Mrs. O'Hara and Mr. Black had been compatible with the obligations on them under Article 2 of the European Convention on Human Rights in relation to the each of the petitioners. It was explained that senior counsel took the view that the other issues raised by the respondents were premature and/or academic, pending a ruling by the Court as to whether the respondents had acted in breach of Article 2.

[33] As set out in their written pleadings the orders sought by the petitioners in each of the petitions are in the following terms: -

"(a) Reduction of the decision of the first respondent intimated by letter dated 15 June 2006 from the Deputy Crown Agent to the petitioner's solicitor to refuse to order an inquiry under the 1976 Act into the death of the late Eileen O'Hara (David Black).

(b) Reduction of the decision of the second respondents intimated by press release dated 16 June 2006 and circulated in the name and under the authority of the Health Minister, Mr. Andy Kerr MSP, to refuse to order an inquiry under the 2005 Act into the death of persons such as the late Eileen O'Hara (David Black) who died consequent upon her infection with Hepatitis C through NHS treatment in Scotland;

(c) Declarator that the petitioner is entitled to an independent, effective, and reasonably prompt public inquiry into the death of Eileen O'Hara (David Black), and at which her (his) next of kin can be legally represented, provided with the relevant material and able to cross-examine the principal witnesses, and that a failure on the part of the respondents to provide such an inquiry is incompatible with Article 2 of the European Convention on Human Rights and accordingly ultra vires of section 57(2) of the Scotland Act 1998;

(d) An order ordaining the respondents to cause such an inquiry to be held, by such procedure, and within such period, as the Court may determine."

[34] In the event, in the written submissions which were lodged on behalf of the petitioners, to which senior counsel for the petitioners referred during his submissions before me, the motions made on behalf of the petitioners were as follows:-

(1) Under and in terms of plea in law 4 in each petition for an order repelling the defences of each of the respondents on the grounds of their fundamental irrelevance and lack of specification;

(2) Under and in terms of plea in law 1 and 4 in each petition, for an order for reduction of the decision of the first respondent, the Lord Advocate, intimated by letter dated 15 June 2006 from the Deputy Crown Agent to the petitioners' solicitor to refuse to order an inquiry under the 1976 Act into the deaths of the late Eileen O'Hara et separatim of the late David Black respectively;

(3) under and in terms of Plea in law 2 and 4 in each petition, for reduction of the decision of the second respondents, the Scottish Ministers, intimated by press release dated 16 June 2006 and circulated in the name and under the authority of the Health Minister, Mr. Andy Kerr MSP, to refuse to order an inquiry under the Inquiries Act 2005 into the death of persons such as the late Eileen O'Hara et separatim of the late David Black respectively who died consequent upon their infection with the Hepatitis C virus ("Hepatitis C virus") through NHS treatment in Scotland; and

(4) Under and in terms of Plea in law 3 and 4 in each petition, for an order ordaining the respondents to hold inquiries into the deaths of the late Eileen O'Hara et separatim of the late David Black under procedure which is compliant with the minimum requirements of Article 2 of the European Convention on Human Rights."

[35] During the continued first hearings senior counsel for the respondents invited me to deal with all the issues specified in the Lists of Issues previously lodged on behalf of the respondents.

[36] Before the continued first hearings got underway, however, another preliminary issue arose. This was whether the Advocate General should be represented during the continued first hearings. That issue had first been raised by Lord Clarke, who presided over By Order hearings in both petitions, which took place on 21 February 2007. At the outset of the hearings before me, I raised the issue again. I was advised by senior counsel for the respondents that the Advocate General was fully aware of the continued first hearings and of the terms of the parties' written pleadings and that he did not intend to be represented during the hearings before me. He was not.

[37] During the hearings, and again during the preparation of this Opinion, I was much assisted by the extensive written submissions which counsel for the parties prepared and which were lodged in process and exchanged, in anticipation of the continued first hearings getting underway. I am very grateful to senior and junior counsel for the parties, and indeed to their solicitors, for the considerable effort that must have gone into the preparation of those documents.

 

Statutory framework

[38] Article 2 of the European Convention on Human Rights provides:-

"1. Everyone's right to life shall be protected by law. ....."

[.....]

 

The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 ("the 1976 Act") provides that:-

"Investigation of death and application for public inquiry

1. - (1) Subject to the provisions of any enactment specified in Schedule 1 to this Act and subsection (2) below, where-

(a) .....

(b) it appears to the Lord Advocate to be expedient in the public interest in the case of a death to which this paragraph applies that an inquiry under this Act should be held into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern, the procurator fiscal for the district with which the circumstances of the death appear to be most closely connected shall investigate those circumstances and apply to the sheriff for the holding of an inquiry under this Act into those circumstances.

(2) .....

(3) An application under subsection (1) above-

(a) shall be made to the sheriff with whose sheriffdom the circumstances of the death appear to be most closely connected;

(b) shall narrate briefly the circumstances of the death so far as known to the procurator fiscal;

(c) may, if it appears that more deaths than one have occurred as a result of the same accident or in the same or similar circumstances, relate to both or all such deaths."

.....

Sheriff's determination etc.

6. - (1) At the conclusion of the evidence and any submissions thereon, or as soon as possible thereafter, the sheriff shall make a determination setting out the following circumstances of the death so far as they have been established to his satisfaction-

(a) where and when the death and any accident resulting in the death took place;

(b) the cause or causes of such death and any accident resulting in the death;

(c) the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided;

(d) the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and

(e) any other facts which are relevant to the circumstances of the death."

.....

(3)      The determination of the sheriff shall not be admissible in evidence or be founded on in any judicial proceedings, of whatever nature, arising out of the death or out of any accident from which the death resulted.

[.....]

 

The Scotland Act 1998 ("the Scotland Act") provides:

" 48(5) Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.

.....

57(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law. "

[.....]

 

The Human Rights Act 1998 ("the Human Rights Act") provides:

"6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if -

(a) as the result of one or more provisions of, or made under, primary legislation, the authority could not have acted differently; or

(b)in the case of one or more provisions of, or made under, primary legislation that cannot be read or given effect to in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

.....

(6) "An act" includes a failure to act ...."

[.....]

 

The Inquiries Act 2005 provides:-

"Power to establish inquiry

1. (1) A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that-

(a) particular events have caused, or are capable of causing, public concern, or

(b) there is public concern that particular events may have occurred.

(2) In this Act 'Minister' means-

(a) a United Kingdom Minister;

(b) the Scottish Ministers;

(c) a Northern Ireland Minister;

and references to a Minister also include references to the National Assembly for Wales.

(3) References in this Act to an inquiry, except where the context requires otherwise, are to an inquiry under this Act.

No determination of liability

2 (1) An inquiry panel is not to rule on, and has no power to determine, any person's civil or criminal liability.

But an inquiry panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes.

.....

Setting-up date and terms of reference

5 (1) In the instrument under section 4 appointing the chairman, or by a notice given to him within a reasonable time afterwards, the Minister must-

(a) specify the date that is to be the setting-up date for the purposes of this Act; and

(b) before that date-

(i) set out the terms of reference of the inquiry;

(ii) state whether or not the Minister proposes to appoint other members to the inquiry panel, and if so how many.

(2) An inquiry must not begin considering evidence before the setting-up date.

(3) The Minister may at any time after setting out the terms of reference under this section amend them if he considers that the public interest so requires.

(4) Before setting out or amending the terms of reference the Minister must consult the person he proposes to appoint, or has appointed, as chairman.

(5) Functions conferred by this Act on an inquiry panel, or a member of an inquiry panel, are exercisable only within the inquiry's terms of reference.

(6) In this Act 'terms of reference', in relation to an inquiry under this Act, means-

(a) the matters to which the inquiry relates;

(b) any particular matters as to which the inquiry panel is to determine the facts;

(c) whether the inquiry panel is to make recommendations;

(d) any other matters relating to the scope of the inquiry that the Minister may specify.

.....

United Kingdom inquiries

27 (1) This section applies to an inquiry for which a United Kingdom Minister is responsible.

(2) The Minister may not, without first consulting the relevant administration, include in the terms of reference anything that would require the inquiry-

(a) to determine any fact that is wholly or primarily concerned with a Scottish matter or a Welsh matter;

(b) to determine any fact that is wholly or primarily concerned with a matter which is, and was at the relevant time, a transferred Northern Ireland matter;

(c) to make any recommendation that is wholly or primarily concerned with a Scottish matter, a Welsh matter or a transferred Northern Ireland matter.

(3) Unless the Minister gives written permission to the chairman, the powers conferred by section 21 are not exercisable-

(a) in respect of evidence, documents or other things that are wholly or primarily concerned with-

(i) a Scottish matter or a Welsh matter, or

(ii) a matter which is, and was at the relevant time, a Northern Ireland matter;

(b) so as to require any evidence, document or other thing to be given, produced or provided by or on behalf of the Scottish Ministers, the National Assembly for Wales or a Northern Ireland Minister.

(4) Before granting permission under subsection (3) the Minister must consult the relevant administration.

(5) Permission under subsection (3) may be granted subject to such conditions or qualifications as the Minister may specify.

(6) Permission under subsection (3) is not required for the exercise of powers in circumstances in which subsection (6) of section 30 would prevent the powers from being exercised in the case of an inquiry to which that section applies.

(7) In this section-

.....

'the relevant administration' means whichever of the following the case requires-

(a) the Scottish Ministers;

(b) the National Assembly for Wales;

(c) such one or more Northern Ireland Ministers as appear to the Minister to be appropriate;

'the relevant time' means the time when the fact or event in question occurred (or is alleged to have occurred);

'Scottish matter' means a matter that relates to Scotland and is not a reserved matter within the meaning of the Scotland Act 1998 (c. 46);

.....

Scottish inquiries

28 (1) This section applies to an inquiry for which the Scottish Ministers are responsible.

(2) The terms of reference of the inquiry must not require it to determine any fact or to make any recommendation that is not wholly or primarily concerned with a Scottish matter.

(3) The powers conferred by section 21 are exercisable only-

(a) in respect of evidence, documents or other things that are wholly or primarily concerned with a Scottish matter, or

(b) for the purpose of inquiring into something that is wholly or primarily a Scottish matter.

(4) Those powers are not exercisable so as to require any evidence, document or other thing to be given, produced or provided by or on behalf of Her Majesty's Government in the United Kingdom, the National Assembly for Wales or a Northern Ireland Minister.

(5) In this section 'Scottish matter' means a matter that relates to Scotland and is not a reserved matter (within the meaning of the Scotland Act 1998).

.....

Joint inquiries
32 (1) The power under section 1 to cause an inquiry to be held, or to

convert an inquiry under section 15, is exercisable by two or more Ministers acting jointly.

(2) In this Act 'joint inquiry' means an inquiry for which by virtue of this section, or section 34, two or more Ministers are responsible.

(3) In the case of a joint inquiry-

(a) powers conferred on a Minister by any provision of this Act (except section 41) are exercisable by the Ministers in question acting jointly;

(b) duties imposed by this Act on a Minister are joint duties of those Ministers.

(4) Subsection (3)(b), so far as relating to obligations under section 39, is subject to any different arrangements that may be agreed by the Ministers in question.

Inquiries involving more than one administration

33 (1) This section applies to a joint inquiry for which the Ministers
responsible ('the relevant Ministers') are not all United Kingdom Ministers and are not all Northern Ireland Ministers.

(2) A limitation imposed by section 27(2), 28(2), 29(2) or 30(2) or (3) on the terms of reference of an inquiry for which a particular Minister is responsible has effect only to the extent that it applies in relation to all of the relevant Ministers.

(3) A limitation imposed by section 27(3), 28(3) or (4), 29(3) or (4) or 30(4) or (5) on the powers conferred on the chairman of an inquiry for which a particular Minister is responsible has effect only to the extent that it applies in relation to all of the relevant Ministers.

(4) Subsections (6) and (7) of section 30 do not apply if at least one of the relevant Ministers is a United Kingdom Minister."

[.....]

 

Submissions on behalf of the petitioners
[39] The petitions are brought by the petitioners as the relatives of two individuals who died after they had become infected with the Hepatitis C virus, whilst under the care of the NHS in Scotland. It is argued that in terms of Strasbourg jurisprudence the petitioners have the status of victims. The petitioners thus have sufficient title and interest to raise the present proceedings, which seek to found on the failures of the respondents to order inquiries into the deaths of their relatives. Those failures are alleged to be incompatible with the Convention rights of Mrs. O'Hara and Mr. Black under Article 2 and, as a consequence, outwith the powers of the respondents under the Scotland Act. As such they constitute a failure to comply with the obligations placed on the United Kingdom under Article 2.

[40] Senior counsel for the petitioners explained that the petitioners sought public inquiries into the deaths of their relatives. They had no private financial or other legal interest in the outcome of the petition proceedings. Whilst at an earlier stage following upon the deaths of Mrs. O'Hara and Mr. Black it would have been open to the petitioners to have raised civil proceedings against individuals employed within the NHS, or against statutory bodies or agencies operating as parts of the NHS in Scotland, the petitioners had never had the inclination nor the financial resources to do so. Any rights to claim compensation they might have had were now time-barred and, in any event, at least in the case of the first petitioner, any compensation that might have been recoverable would have been minimal. What the petitioners now sought were orders from the Court that would require the respondents to respect the Convention rights of Mrs. O'Hara and Mr. Black, by holding inquiries into the circumstances in which Mrs. O'Hara and Mr. Black came to be infected with the Hepatitis C virus and of their subsequent deaths. Those circumstances included the acts and omissions of those responsible for the collection and subsequent supply of the blood donations with which Mrs. O'Hara and Mr. Black had been transfused and in the preparation of the blood products with which Mr. Black had been treated.

[41] Senior counsel for the petitioners explained that there were no non-governmental organisations or other interest groups, which could be accorded the status of victims in respect of the deaths of Mrs. O'Hara or Mr. Black or which could otherwise establish sufficient title and interest to raise judicial review proceedings challenging the respondents' refusal to hold public inquiries into those deaths. In presenting this branch of his submissions, senior counsel for the petitioners freely acknowledged that the petitioners also consider that they have raised their petitions in the public interest. That is because many other persons were infected with the Hepatitis C virus in similar circumstances to Mrs. O'Hara and Mr. Black. Some of those individuals have died and others remain under the care of the NHS in Scotland.

[42] Senior counsel for the petitioners submitted that the effect of section 57(2) of the Scotland Act 1998 was that the respondents did not have power to act in a manner incompatible with any of the Convention rights of Mrs. O'Hara and Mr. Black and the petitioners. Any purported actings (or failures to act) on the part of either of the respondents in contravention of a Convention right were ultra vires. That included situations when the respondents had been taking discretionary decisions in the exercise of their statutory powers.

[43] The submissions advanced on behalf of the petitioners in respect of Article 2, were extensive. It was stressed, amongst other points, that the Strasbourg Court has held (a) that an individual's rights under Article 2 to have his life protected by law can impose a correlative duty on the State to provide for a public inquiry into his death (see McCann v United Kingdom (1995) 21 EHRR 97, Anchovy and others v Bulgaria (2006) 42 EHHR 43, and Öneryildiz v Turkey ECtHR (Grand Chamber), 30 November 2004); (b) the persons responsible for carrying out such an investigation require to be independent in practice, as well as in theory, from those implicated in the events relating to the death (Trubnikov v Russia, ECtHR (Grand Chamber), 5 July 2005 and Edwards v United Kingdom (2002) 35 EHRR 487, (c) that is so even where there was no direct or indirect State responsibility for the death (see Menson and others v United Kingdom (Application no.47916/99) ECtHR non-admissibility decision of 6 May 2003 (2003) 37 EHRR CD 220 and Pereira Henriques v Luxembourg, ECtHR, 9 May 2006); and (d) a State's obligations under Article 2 include the obligation to investigate the death of an individual who had been under the care and responsibility of the medical profession (see Erickson v Italy 29 EHRR CD 152, 156 (ECtHR 26 October 1999), Powell v United Kingdom (2000) 30 EHRR CD 362, Reports of Judgments and Decisions 2000-V, p.397, Sieminska v Poland App No. 37602/97 (29 March 2001, unreported), Calvelli and Ciglio v Italy ECtHR 17 January 2002 and Vo v France (2005) 40 EHRR 259, ECtHR (Grand Chamber), 8 July 2004).

[44] When referring to Strasbourg jurisprudence, senior counsel for the petitioners founded in particular on the case of Öneryildiz v Turkey. It was an important part of his submission that in the particular circumstances of the present cases the absence of any inquiry initiated by the respondents meant that the obligations of the United Kingdom under Article 2 had not been fulfilled.

[45] The case of Öneryildiz v Turkey arose out of a methane explosion at a household refuse tip which was operated by a local authori