Scottish Human Rights Law Group

The Lord Ordinary, Lord Mackay of Drumadoon held that Article 2 ECHR requires the holding of a public inquiry into the deaths of individuals infected with HCV from blood transfusions while in NHS care.  He held that both the Lord Advocate and the Scottish Ministers have acted in a manner incompatible with the Convention rights of the deceased in refusing any inquiry into the deaths of their relatives. Lord Mackay accordingly quashed the decisions of the Lord Advocate refusing to hold Fatal Accident Inquiries and has noted 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.   He refrained from making a positive order against either the Lord Advocate or the Scottish Ministers to set up an Article 2 compliant inquiry into these deaths instead giving the respondents time to come to the court to explain precisely what they intended to do to purge their breach of the families’ Convention rights.   Quite apart from the important issues of establishing in Scots human rights law the idea of the State’s responsibility to establish proper systems and structures to establish accountability for deaths occurring in the State’s  care this case is of fundamental constitutional importance in that it is the first time in which a court in Scotland has found a decision of the Lord Advocate in the exercise of her duties as head of the system of criminal prosecution and of inquiries into deaths in Scotland to be unlawful.  It is also the first time in which the court in Scotland has effectively made it plain that the Lord Advocate and Scottish Ministers have a positive duty to do something in the circumstances of these cases (that is to hold some form of an Article 2 compliant public inquiry) rather than the court simply quashing the original decision and remitting the matter back to the original decision makers to reconsider whether or not to hold such any such inquiry.[1]

2008 SLT 185

Full judgment here

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[1] Compare with Emms Petitioner, 2008 SLT 2, OH where the Lord Ordinary, Lady Smith – in something of a “Catch 22″ judgment – observed that it was liable to be fatal to a claim of breach of Article 2 in circumstances where the claimant had either not made use of a civil litigation avenue that was available or had used it but settled the claim out of court but that where it was accepted that there was no arguable case of individual negligence, Article 2 ECHR could not be used to place some further obligation on the State to hold some form of judicial inquiry into a death.

Art. 02 Right to Life