Kennedy & Anor v The Lord Advocate [2008] ScotCS CSOH_21 (05 February 2008)

Kennedy & Anor v The Lord Advocate [2008] ScotCS CSOH_21 (05 February 2008)

The respondents' refusal to hold a Fatal Accident Inquiry into the deaths was incompatible with the United Kingdom's obligations under Article 2 ECHR. The decision of the first respondent dated 15 June 2006 refusing to order an inquiry under the 1976 Act is reduced. It is premature to grant declarators or orders compelling the respondents to hold an inquiry at this stage.

Citation
[2008] ScotCS CSOH_21
Parties
Petitioner: First Petitioner; Petitioner: Second Petitioner; Respondent: First Respondent; Respondent: Second Respondent
Jurisdiction
Scotland
Judgment Date
05 February 2008
Procedural Posture
Judicial Review / Judgment
Outcome
decision of first respondent refusing inquiry reduced; further orders deferred
Legal Topics
Public Inquiry, Article 2 ECHR, Scotland Act 1998, Ultra Vires, Fatal Accident Inquiry
Public Law Human Rights Law Constitutional Law Public Inquiry Article 2 ECHR Scotland Act 1998 Ultra Vires Fatal Accident Inquiry

Case Brief

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Parties

First Petitioner

Petitioner

Second Petitioner

Petitioner

First Respondent

Respondent

Second Respondent

Respondent

Procedural Posture

Judicial Review / Judgment

Legal Issues

  1. 1 Whether the petitioners are entitled to a public inquiry into the deaths under Article 2 ECHR
  2. 2 Whether the respondents' refusal to hold an inquiry was incompatible with Article 2 ECHR and ultra vires under section 57(2) of the Scotland Act 1998

Ratio Decidendi

The respondents' refusal to hold a Fatal Accident Inquiry into the deaths was incompatible with the United Kingdom's obligations under Article 2 ECHR. The decision of the first respondent dated 15 June 2006 refusing to order an inquiry under the 1976 Act is reduced. It is premature to grant declarators or orders compelling the respondents to hold an inquiry at this stage.

Court Disposition

decision of first respondent refusing inquiry reduced; further orders deferred

Orders

  • Sustain first plea in law for petitioners
  • Repel third plea in law for first respondent