Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 110
P1787/08	OPINION OF LORD MALCOLM in the petition of MRS IVY NIVEN (AP) Petitioner; for JUDICIAL REVIEW OF A DECISION OF THE LORD ADVOCATE DATED 8 MAY 2008 _______________

Petitioner: O'Neill, Q.C., Caskie; Thompsons

Respondent: Crawford, Q.C.; Scottish Government Legal Directorate

24 July 2009

[1] In this application for judicial review the petitioner challenges a decision of the Lord Advocate, dated 8 May 2008, refusing a request that a fatal accident inquiry be held into the circumstances surrounding the death of Dorothy Niven, the petitioner's daughter. The application is resisted by the Lord Advocate (the respondent). There is a lengthy and complicated background which it is appropriate to set out in some detail.

The background to the petition
[2] On 19 December 1995 Richard Karling was found guilty by a jury in the High Court of the following charge, namely that:

"On 27 June 1995 at the Pancake Place, Union Street, Glasgow and at the house of 2 Silven Place, Busby you did assault Dorothy Bernadette Niven, then residing at 2 Silven Place, and did at The Pancake Place, administer temazepam to her whereby she became intoxicated and thereafter did convey her in a taxi from The Pancake Place, to the house of 2 Silven Place, and there did force her face into a pillow and asphyxiate her and murder her and you did previously evince malice and ill-will towards her".

Mr Karling appealed against his conviction and on 10 March 1999 the High Court issued an Opinion of the Court delivered by the then Lord Justice Clerk, Lord Cullen, Karling v HMA 1999 SCCR 359. That Opinion sets out many of the facts and circumstances relevant to the current application, and I refer to it for its full terms. It can be summarised as follows.

[3] Prior to 27 June 1995 there had been a relationship between Mr Karling and

Ms Niven. However by that date Ms Niven had another boyfriend who normally lived with her in Busby. Nonetheless she agreed to meet Mr Karling at The Pancake Place at about 4.30 pm. Shortly after she met Mr Karling she appeared to become very unwell. She was described by witnesses at the trial as becoming floppy, like a rag doll, and sleepy. They both left in a taxi, Ms Niven still in a collapsed state, which took them to Ms Niven's home. The next day at about 4.30 pm, after a 999 call made by Mr Karling for an ambulance to come to her house, ambulance men found her dead, lying in her bed face down on a pillow and partially clothed. The attending police surgeon considered that she had been dead for between 12 and 36 hours. In due course it was found that there was temazepam in her bloodstream at the level of 0.41mgs per litre of blood and that she had taken some paracetamol. There was no sign of forcible entry to the house.

[4] At the trial the Crown case was based on evidence given by a number of pathologists that Ms Niven had been smothered, and that her ability to resist had been reduced by the temazepam in her system. The Crown relied on a number of pieces of circumstantial evidence pointing to the appellant as the perpetrator, maintaining that he had administered temazepam to her in a drink which she had consumed at The Pancake Place. The circumstantial evidence consisted essentially of matters of opportunity and influence, taken together with motive. The relationship between Ms Niven and Mr Karling had been of long-standing and at times it was stormy. Some years before her death she had obtained an interdict against him. He was found near her house on a number of occasions. She had told others that he was being a nuisance and would not leave her alone. There was evidence that he had said that if he could not have her, no one could. By the time of her death he had been replaced as her boyfriend by someone else. A video recording taken outside The Pancake Place suggested that after ordering coffee and orange juice Mr Karling had surreptitiously put something in a refuse bin outside the premises. He had the opportunity to put temazepam in her orange juice and to smother Ms Niven after he returned with her to her house. No temazepam was found in her handbag nor elsewhere within her house. The taxi driver gave evidence that he did not hear any conversation between them, and in particular did not hear Mr Karling make any suggestion that she should go to hospital or to a doctor. Ms Niven appeared to be asleep. There was also evidence that Mr Karling had said to another man that his girlfriend had committed suicide.

[5] At the trial a special defence of incrimination naming the then current

boyfriend of Ms Niven was lodged on behalf of Mr Karling. Mr Karling

gave evidence that when Ms Niven came into The Pancake Place she was sweating and her eyes were bloodshot (an observation not accepted by members of the staff). He gave her sugar because on an earlier occasion she had told them that she was diabetic. In the taxi she resisted his suggestion that she should go to a hospital or to see her doctor. Mr Karling continued that at her house she remained unwell and lay down. He remained in the house, looking in to see if she was alright at fifteen minute intervals. At one stage she got up and went into a back bedroom where she fell heavily against a calor gas heater. When she arrived at The Pancake Place she told him that she had a headache, and that she wanted to sleep and would take something to help her to do so. He then left the house. He telephoned her place of work at her request. He went to her house the following afternoon with a set of keys which she had given to him the day before. When he went into her bedroom and saw her body he was aware of a smell. He tried to waken her by shaking her. He noticed a mark on one of her arms. Her underpants were stained at the crotch. He pulled up her pants to cover her buttocks and put her skirt over her to preserve her modesty.

[6] None of the pathologists who gave evidence at the trial had examined the body of Ms Niven in the place where it was found. The attending police surgeon, Dr McNaught, stated in evidence that he was not able to arrive at a cause of death, but it did not appear to him that Ms Niven's death was suspicious. A number of photographs were taken. However this was after Dr McNaught, with the assistance of two police officers, had lifted the body. He said that the body had been replaced where it had been, but there had been some alteration in the position of Ms Niven's hair. The first post-mortem examination was carried out by Dr Louay al-Alousi at about 2.30 pm on 30 June 1995. Since the death was not treated as suspicious he carried out this examination alone. At that time he considered the cause of death to be "acute pulmonary oedema and congestion". This was stated to be subject to a full toxicological report, including full drug analysis. However he later produced a report dated 11 October 1995 in which he gave the cause of death as follows:

"1a. (i.e. disease or condition directly leading to death) acute pulmonary oedema and congestion;

1b. (i.e. due to or as consequence of) inhalation of gastric contents;

1c. (i.e. due to or as consequence of) temazepam toxicity and smothering."

As can be seen from his report, this arose out of his consideration of the photographs, the level of temazepam which had been found in Ms Niven's bloodstream, and a number of pieces of information about the actions of the appellant and the deceased which had been related to him. In his report he expressed the opinion that temazepam could have predisposed the deceased to inhalation of gastric contents and death. He also stated:

"The photographs of the scene were suggestive of the face of this woman being compressed and buried in the pillow which could raise the possibility of asphyxia by smothering. There was, in the post-mortem examination, a paucity of marks of asphyxia, apart from suffusion of the eyes which could be a reflection of the drug toxicity or ingestion. However, smothering of a weakened victim, for example through a drug influence, was less likely to be associated with classical signs of asphyxia as the victim was not expected to show struggles or efforts to breath."

[7] Dr Marie Cassidy, along with Dr Marjorie Black, carried out a further post‑mortem examination of the body on 13 July 1995. In the course of their examination they found that Ms Niven has sustained a fractured rib, which they considered was likely to have been caused by a heavy fall. In their report dated 24 October 1995 they gave the cause of death as "unascertained". Dr Cassidy was later asked to review the case in the light of further information. In her report on that review she expressed the cause of death as "asphyxia due to suffocation". Dr Cassidy said in evidence that the position of the body, its external appearance and the absence of other findings made her come to conclusion that death was due to smothering or suffocation. She had never encountered the upturning of the nose and upper lip in deaths associated with accidental suffocation or smothering. She accepted that there was a possibility that the death had occurred in the course of some sexual activity. However photographs raised the question of whether the body had been moved. She referred to the appearance of one of the arms, the presence of faecal material near the left foot, and her view that the deceased's underpants were on back to front and inside out.

[8] The third pathologist who gave evidence in the Crown case was Professor Peter Vanezis. He had not examined the body but was asked to review the post-mortem findings to date. In his report he observed that the upturning of the nose and the upper lip could have not occurred after the deceased had died.

"To achieve this type of displacement of the features one would need the face to be pushed into the pillow and then the person to succumb in this position."

He also stated that it was highly significant that the deceased's underpants had been placed in an inside out/back to front position. Faecal staining on the underpants was commonly seen in asphyxia. It was also occasionally seen in other types of death, particularly if associated with violence. His overall view of the case was that the deceased had been suffocated by her head being pushed down into the pillow whilst she was incapacitated with temazepam.

[9] During the trial the defence suggested that the death of Ms Niven could have occurred either naturally or in the course of sexual passion. It was disputed that her underpants were on inside out and back to front, and evidence was led from employees of Marks & Spencer and British Homes Stores designed to show that what the pathologist had interpreted as a label on the back of the underpants was in fact a bow on the front. Evidence was also given by one of the waitresses at The Pancake Place that Ms Niven had told her that she was diabetic. However, Ms Niven's parents and her doctor denied that she had such a condition, and she had been tested twice for the presence of diabetes as a matter of routine. Her colleagues at work described her as a normal, healthy woman with no indication of a medical condition. The only indication to the contrary came in the evidence of Julie McCormack who said that one morning she appeared disoriented after she had been experiencing sleeping difficulties.

[10] The defence led the evidence of Dr Basil Purdue, who had performed a further post-mortem examination on 22 August 1995. He gave evidence that the first impression from the scene, as opposed to what was shown in the photographs, suggested a sexual implication. According to Dr Purdue's report the cause of death was "acute pulmonary oedema and congestion (to be amended according to toxicology and histology results)". He said that the photographs, which he understood showed the undisturbed view of the body, were informative. The position of the body and the way in which the nose and upper lip were drawn up strongly suggested that there had been some sort of pressure. The appearances were strongly suggestive of her having met her death in that position and that there were asphyxial changes due to suffocation. The faecal staining of the underpants, which he understood to have been put on inside out and back to front, made him highly suspicious. He regarded the temazepam as contributing to the death but it was not the main cause. He would now express the cause of death as:

"1a. Suffocation and smothering

2. Temazepam intoxication".

[11] The submission that the jury was not entitled to conclude that the deceased had been smothered by an assailant was rejected by the court. The court considered that the views reached by the Crown pathologists supported the jury's verdict. The reasons which they gave for those views were not self evidently inadequate, ill‑founded or ambivalent. Moreover the evidence of Dr Purdue supported the view that the deceased had been forcibly suffocated. If the jury discarded death by a natural cause, for which diabetes was suggested, they were left with suffocation resulting from some form of sexual activity or from an intention to smother the deceased. Having regard to the evidence given by the pathologists the jury was entitled to reach the latter conclusion.

[12] The court then required to consider the ground of appeal directed to evidence which had not been heard at the trial. This concerned a number of reports by additional experts in pathology, toxicology and diabetes. These related, broadly speaking, to the basis for the view that the deceased was smothered, including the part played by temazepam, and alternative causes of death. They also raised criticisms with regard to the quality and the extent of the post‑mortem investigations. So far as concerns the question of smothering, the court was referred to reports from Professor Bernard Knight, Professor Derek Pounder, Dr A. C Hunt and Professor N. A. Green, all forensic pathologists. Professor Knight stated that the report of Dr al-Alousi contained essentially negative findings. It was "extraordinary" for him a state that smothering was a cause of death. There was "nothing in the objective findings which supports or even indicates such a speculative diagnosis". The cause of death should have been "unascertained". What had been taken as a sign of asphyxia, namely the suffusion of the eyes, was a common result of a body being face down after death. Also inhalation of the gastric contents was not an uncommon observation. It did not provide a diagnosis as to what happened, and it was not sinister. Likewise for Professor Vanezis to state that the deceased's head would have to be pushed into the pillow amounted to unsubstantiated speculation. There was nothing about the upturn of the nose and upper lip which was inevitably sinister or homicidal. He stated:

"The head does not even have to fall onto the pillow or bed, it can merely lie against the surface and the dead weight of the head, which is considerable when all muscle tone is lost after death, can allow the features to be squeezed into the surface, causing distortion."

With regard to the views of Dr Purdue, it was suggested that again he drew the same untenable conclusion from virtually non-existent facts.

[13] Professor Pounder stated that the autopsy findings on the deceased, taken alone or with the evidence from the scene, did not permit a diagnosis of cause of death.

"There is no scientific basis for offering suffocation as the cause of the death. The evidence in this case does not allow a diagnosis of suffocation with reasonable medical certainty. The diagnosis is a speculation and the presentation of medical evidence to support it reflects bias".

He added:

"In my view this distortion of the facial features, including the face and the upper lip, could also be readily achieved spontaneously following loss of consciousness, from whatever cause (such as diabetic coma, drug intoxication) when facing into the pillow. This is a mechanical rather than a purely medical issue. The distortion is readily achieved because of the softness of the tissues of the lips; contrary to the evidence given, it is not fixed by rigor mortis, and once the pressure is removed the distortion will begin to resolve, as illustrated in the series of police photographs."

[14] Dr Hunt concluded that the cause of death was not ascertained by the examinations of the forensic pathologists who gave evidence at the trial. There was no evidence whether or not the deceased died of smothering. What little evidence there was which possibly related to smothering was, at least slightly, against this having occurred. He referred to the absence of petechiae, marks on the face and staining on the pillow. The views expressed in evidence by the pathologists at the trial were not orthodox. The evidence which they put forward indicating suffocation was speculative and unfounded. Professor Green expressed the opinion that the upturning of the nose could well have been simply postural, particular as the body's position was changed slightly by the police surgeon. He believed that the nose could well have assumed the position shown on the photographs if the body had been left lying face down for several hours after death. Faecal incontinence occasionally accompanied asphyxia or other violent deaths, but it was also seen in many natural deaths. Deliberate suffocation of a young healthy adult was relatively uncommon and usually occurred in association with some form of lip or tongue injuries, neither of which were present in this case.

[15] The new reports covered two additional matters. Firstly, Professor Pounder and Dr Hunt expressed the view that the underpants were in the normal position. This was based on the examination of a number of such items of underwear. Secondly the pathologists expressed the view that the level of temazepam in the bloodstream of the deceased, which was below a therapeutic dosage, could not have been a factor incapacitating her. Professor Pounder also observed that this level was not consistent with having caused her to behave in The Pancake Place in the manner described by witnesses. Counsel for Mr Karling also tendered a report by Dr Michael Osselton, a consultant forensic scientist. According to him there was no toxicological evidence to support a claim that the deceased had died as result of temazepam toxicity. The level found in her bloodstream might well have been elevated as part of the process of post-mortem change, so that the true concentration in her blood immediately prior to her death could have been significantly lower.

[16] Reliance was placed on a report by Professor Forest, a forensic toxicologist. According to his report the level of temazepam in the bloodstream of the deceased was entirely typical of the sort of concentration found in a person who had taken a therapeutic dose within the last few hours. He would not expect a woman, even one who was not used to taking temazepam, to have become as rapidly and profoundly affected after the surreptitious administration of a therapeutic dose of temazepam as was apparent from the description of her condition by the staff at The Pancake Place. To produce such an effect, a greater than therapeutic dose of temazepam would have had to be taken either shortly before or shortly after her arrival there. He would expect that the concentration in the blood of such a person, who had been incapacitated to the extent that she was unable to defend herself successfully against an assault on her life, would have been significantly higher than 1mg per litre.

[17] The other main branch of evidence on which counsel for Mr Karling relied related to:

(a) criticism that alternative causes of death were not sufficiently investigated; and

(b) diabetes as an alternative cause of death.

As regards (a), the forensic pathologists indicated that there was a range of possible causes which were not sufficiently investigated. Dr Hunt referred to pneumothorax due to the fractured rib, cardiomyophathy, acute pelvic sepsis and diabetes. As regards (b), a further report from Professor Ian Campbell, an expert in diabetic medicine, was tendered. He concluded that the evidence given by the witnesses in The Pancake Place contained details which could be attributed to hypoglycaemia, i.e. a low plasma glucose level. In his report he explained that hypoglycaemia, possibly leading to coma, can commonly occur in insulin treated patients due to insulin overdose, excessive exercise or inadequate carbohydrate intake. Symptoms such as significant drowsiness, abnormal behaviour, confusion and eventually coma can occur. Professor Campbell also concluded that if hypoglycaemia did occur in the case of Ms Niven, it could be a major contributory factor to her losing consciousness and dying overnight in her sleep. He referred to this as the "dead in bed syndrome". Professor Forrest stated that a very low blood glucose level could give rise to impairment of the function of the brain. Such subjects are usually pale. They may sweat and may present an appearance difficult to differentiate from alcohol intoxication. This condition could develop relatively rapidly. His opinion was consistent with the descriptions of the deceased at The Pancake Place.

[18] The appeal court required to consider whether the appellant had provided a reasonable explanation as to why this fresh evidence was not heard at the trial. It concluded that there was a reasonable explanation as to why evidence that there was no scientific basis for a finding of suffocation was not led at the trial. It was plain that the evidence and the advice given to the defence by Dr Purdue provided ample confirmation of the evidence given by the Crown pathologists that the deceased had been suffocated. The court's conclusion applied to the evidence which Professor Knight, Professor Pounder, Dr Hunt and Professor Green would have given on that question and any matter incidental to it. The court considered that it would not be appropriate to exclude consideration of what those witnesses would say with regard to the effect of temazepam and whether the deceased's underpants were on inside out and back to front. Those matters were so closely related to the question of whether there was positive evidence that the deceased was the victim of a homicidal attack that it would not be in accordance with justice to exclude them from consideration. The same conclusion applied to the report by Professor Forrest in so far as it was concerned with temazepam.

[19] The court also concluded that there was a reasonable explanation as to why evidence was not given at the trial to the effect that alternative causes of death were not sufficiently investigated prior to the trial. There was nothing in the report and advice of Dr Purdue to suggest this. However different considerations applied to the report by Professor Campbell, which was concerned with whether the deceased displayed symptoms relating to diabetes and died as result of a diabetic coma. It was plain that the issue of diabetes was raised at the trial. There was conflicting evidence as to whether the deceased had given any indication that she suffered from that condition. The appellant did not seek to lead any evidence designed to assert that as a matter of fact the deceased suffered from it, but rather to demonstrate that if the deceased had diabetes, that could account for her behaviour in The Pancake Place and for her dying in a coma in her sleep. However the court took the view that there was no explanation as to why such evidence was not led at the trial.

[20] The court then considered whether the evidence in respect of which there was

a reasonable explanation could amount to significant evidence, applying the test set out in Cameron v H.M. Advocate 1987 SCCR 608. The court was not persuaded that the evidence which the pathologists could give could not amount to:

"important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or a material part to play, in the jury's determination of a critical issue at the trial" (Cameron at page 619).

The court stated:

"The pathologists whose evidence the appellant seeks to lead clearly state that it is their view that there was no scientific basis for the conclusion that the deceased was suffocated. It does not seem to us to be appropriate to treat the difference between them and the pathologists at the trial as merely relating to the question of the comparative weight to be attached to post-mortem signs. In this connection we do not consider that it would appropriate to exclude the evidence which these witnesses would give in regard to temazepam and the position with regard to the underpants, as each of these matters is involved with the question whether there was any indication that the deceased had died at the hands of a third party".

[21] The court did not wish to exclude the evidence which the pathologists would give in regard to the steps which should have been taken to investigate alternative causes of death. However it concluded that Dr Osselton's report would not provide significant evidence. At the trial it was not suggested that the deceased had died as a result of temazepam toxicity. In the result the court gave the appellant an opportunity to lead the evidence of Professor Knight, Professor Pounder, Dr Hunt, Professor Green and Professor Forrest, excluding evidence as to diabetes. The appeal was continued for the purpose of their evidence being led before a member of the court.

[22] An eight day hearing of evidence before Lord Kirkwood was concluded on 30 June 2000. On 15 March 2001 Lord Kirkwood issued a report. The terms of that report are not before me. The appeal was set down for a procedural hearing on 16 May 2001. At that hearing the Crown conceded that in light of the fresh evidence the conviction could no longer be supported. The court accepted the Crown's concession and quashed the conviction for murder. There was no application for a fresh prosecution.

[23] The reasons for the Crown's position were set out in a written outline submission presented to the court. It indicated that in order to justify the conviction for murder on the indictment it was essential that the Crown established that the appellant administered temazepam to the deceased prior to her death and that he thereafter caused her to be asphyxiated by pressing her face into a pillow, her ability to resist having been overcome by the administration of the temazepam. Notwithstanding the additional evidence it was the Crown's view that there remained a substantial body of circumstantial evidence incriminative of the appellant. Nevertheless, the additional evidence adduced included evidence that prior to the trial diet a sample of the deceased's blood was submitted to the toxicology laboratory of Guy's Hospital, London for examination. The tests on examination of that sample were negative of the presence of temazepam. However the result of that examination was not known to the appellant nor the Crown at the trial. Further, notwithstanding the opinions expressed by Dr Anderson and Dr Oliver of the University of Glasgow, Forensic Laboratory, there was additional evidence from Dr Forrest and Dr Oakley to the effect that the Glasgow laboratory tests were insufficient to establish that the samples examined by them contained the drug temazepam and thus the results may have been obtained in error.

[24] The Crown submission continued that at the trial the Crown and defence pathologists thought that there was no basis upon which the toxicology report from the Glasgow laboratory could be challenged. The new evidence disclosed that there was a material dispute between the eminent pathologists called on behalf of the appellant, namely Dr Knight, Dr Green, Professor Pounder and Dr Hunt and in addition the Crown pathologist Dr Margorie Black on the one hand, and the Crown pathologists Professor Vanezis, Dr Maria Cassidy and Dr al-Alousi on the other, as to whether the features shown on photographs of the deceased could properly be a basis for concluding that the death was due to asphyxiation at the hands of a third party, particularly as the photographs had been taken after the deceased's body had been moved by the police doctor called to the scene.

[25] It was accepted that the evidence of the pathologists called on behalf of the appellant was evidence which, had it been available, would have been bound to have a material bearing on the decision of the jury. Further the decision of the jury was taken in ignorance of the evidence that the sample of the deceased's blood examined at Guy's Hospital did not contain temazepam, and this constituted a miscarriage of justice. The Crown accepted that the evidence from Guy's Hospital that the sample of blood examined by them did not contain temazepam and the evidence of the defence toxicologists Dr Forrest and Dr Oakley, when taken along with that of the toxicologist instructed to advise the Crown for the purposes of this appeal, was such that the conviction should be quashed. The Crown stated that it did not seek leave to bring a fresh prosecution.

[26] The present petition avers that the petitioner and her family subsequently sought an explanation as to the circumstances of the death of Dorothy Niven. They instructed solicitors to represent them in the matter. Correspondence took place between the solicitors and the Crown Office. The petitioner also received assistance from her MSP. Some of the relevant correspondence has been produced. Margaret Curran MSP wrote to both the Chief Constable of Strathclyde Police and the Lord Advocate. In her letter of 16 June 2006 to the Chief Constable she said:

"I have been approached by relatives of Dorothy Niven who are understandably very distressed and horrified by the release of Richard Karling, who was convicted for Dorothy's murder in December 1995 and who was released recently and awarded £892,000.

My understanding is that the appeal was based on flawed evidence in the original court case but the police are not looking for anyone else in relation to the original murder of Dorothy Niven.

I am clearly not aware of all the details surrounding this case but I am trying to get to the bottom of what the key issues are as my constituents have asked me to pursue this as thoroughly as I can. In order to do this I believe I need a full report from the police as to how this case was pursued.

It would seem that this woman has been murdered and for a variety of reasons her murderer has not been brought justice and this is unacceptable, and on behalf of her family it is incumbent on me to get a full explanation for this."

[27] Ms Curran received a reply from the Assistant Chief Constable (crime) by letter dated 13 October 2006. It was in the following terms:

"I write the following in response to your letter dated 16 June 2006, addressed to Sir William Rae, Chief Constable in relation to the above. I hope that the following provides you and Mrs Niven's relatives with some explanation of the attendant circumstances.

Ms Dorothy Niven died on 27 June 1995. The initial police enquiry into her death and subsequent forensic examination led to the conclusion that her death had occurred in suspicious circumstances. The matter was reported to the Procurator Fiscal and Mr Richard Karling was charged with her murder.

The Crown commenced proceedings against Mr Karling on that charge and he stood trial at the High Court in Glasgow in 1996. On conviction of Ms Niven's murder he was sentenced to a period of life imprisonment.

Mr Karling subsequently lodged an appeal against his conviction and part of that process involved the leading of further evidence. During that appeal hearing at the High Court in Edinburgh in June 2000, the Crown withdrew its opposition and Mr Karling's conviction was overturned. Consequently he was released from custody. The basis upon which the Crown took its decision is not something which is known to me, nor the enquiry officers, and I cannot offer any comment on that matter.

Crown Office has not, subsequent to those proceedings, directed any further investigation by officers of this Force, nor of any other Force, into the circumstances of Ms Niven's death.

Mr Karling's claims regarding the initial police enquiry into the circumstances of Ms Niven's death were themselves the subject of a full investigation. That investigation did not uncover, or otherwise indicate, any impropriety or negligence in relation to the original police enquiry.

Your letter also makes reference to Mr Karling having been awarded £892,000. I believe that this was a sum of money, paid in a number of instalments between 2003 and 2005, awarded in terms of an ex gratia scheme established some years ago by the then Secretary of State for Scotland, in consequence of an undertaking enacted by Parliament on 23 January 1986.

Following conviction and subsequent appeal, Mr Karling sought damages and raised two civil actions against the Chief Constable of Strathclyde Police at the Court of Session. The first of these actions was raised before the conclusion of his appeal and broadly related to the way in which certain aspects of the investigation into the circumstances of Ms Dorothy Niven's death had been conducted.

The second action was raised after the conclusion of Mr Karling's appeal and was based on claims, advanced on his behalf, as to the way in which information was alleged to have been ingathered. Both actions sought substantial sums of damages from the Chief Constable and defences were immediately lodged by this Force.

The first action was sisted and the second action was more actively pursued on Mr Karling's behalf. At a later stage in proceedings, Mr Karling expanded his action to include both the Lord Advocate and a Principal Procurator Fiscal Depute as additional defenders. Similarly they also opposed Mr Karling's claims.

Mr Karling's civil action called at the Court of Session on 6 June 2006. At that hearing his action against the Chief Constable, the Lord Advocate and the Principal Procurator Fiscal Depute was abandoned: that is to say, Mr Karling accepted that there was no liability to him by any of the defenders.

Furthermore Mr Karling was found liable to the Chief Constable for a substantial proportion of his legal expenses and likewise to the Lord Advocate and Principal Procurator Fiscal Depute.

Media reporting and speculation regarding Mr Karling's civil action may have given the impression that the payments made to Mr Karling by the Scottish Executive had in fact been obtained from or otherwise made by the Chief Constable. This is without foundation and I hope that I have clarified this matter.

I trust that this information is of assistance to you."

[28] In and around the same period Ms Curran received two letters from the Lord Advocate. The first was dated 16 August 2006 and was in the following terms:

"Thank you for your letter of 6 July on behalf of your constituent, the mother of Dorothy Niven, concerning proceedings against Richard Karling in relation to the death of her daughter. I would be grateful if you could convey my sympathies to your constituent, not only for the loss of her daughter but also for the difficulties arising with the criminal case which have caused her additional distress.

In your letter, you ask several questions about the criminal proceedings against Richard Karling. It may be helpful if I set out for you in some detail the circumstances surrounding the original trial and subsequent appeal proceedings.

On 19 December 1995, Richard Karling was found guilty, by a majority verdict of the jury, of the following charge:

'On 27 June 1995 at The Pancake Place, Union Street, Glasgow and at the house of 2 Silven Place, Busby you did assault Dorothy Bernadette Niven, then residing at 2 Silven Place, and did at The Pancake Place, administer temazepam to her whereby she became intoxicated and thereafter did convey her in a taxi from The Pancake Place, to the house of 2 Silven Place, and there did force her face into a pillow and asphyxiate her and murder her and you did previously evince malice and ill-will towards her'.

The Crown case was based on the evidence given by a number of pathologists that the deceased had been smothered and that her resistance had been affected by the temazepam in her system. The Crown relied on several pieces of circumstantial evidence pointing to Richard Karling as the perpetrator, maintaining that he had administered temazepam to her in the drink which she had consumed at The Pancake Place.

Richard Karling appealed against his conviction. His conviction was based on a number of grounds, the most important and subsequently significant ground involving a claim that there had been a miscarriage of justice, based firstly on the proposition that there was insufficient evidence to entitle the jury to convict him and, secondly, on the existence and significance of evidence which was not heard at the trial.

At the initial appeal hearing the Court of Appeal held that they were satisfied that there had been sufficient evidence to entitle the jury to conclude that Dorothy Niven was smothered and that this resulted from the acts of Richard Karling. However, after considering a number of expert reports presented on Richard Karling's behalf, which had not been available at the original trial and challenged the forensic pathology evidence at the trial, the Court were satisfied that this was potentially important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or a material part to play in the jury's determination of a critical issue at the trial.

Accordingly, the Court of Appeal decided to afford Richard Karling the opportunity to present the newly available evidence before the court. This took place at a hearing in June 2000, which lasted for 8 days.

At the time of the original investigation, the Crown received evidence from the University of Glasgow Forensic Science Laboratory to the effect that there had been temazepam in Dorothy Niven's blood at the time of her death. However, it was decided that it would also be useful to analyse her blood for poisons. Testing for poisons was not something which could be done by the Glasgow University Laboratory, so a sample of her blood was sent by Strathclyde Police to Guys Hospital in London, who had the appropriate equipment and expertise to carry out this work.

The Procurator Fiscal was subsequently advised, orally, that no poisons had been found, although he did not ever see the report itself. As Guy's Hospital had not been asked by the Procurator Fiscal to check for the presence of temazepam, he had no reason to doubt the accuracy of the results he had received from the Glasgow Laboratory, and he proceeded on that basis.

However, while the Crown were preparing for the appeal hearing in June 2000, it was decided to write to Guy's Hospital to find out whether a specific check for any date rape drug had been carried out. The hospital responded by sending their original report, containing details of all of their findings, to the Crown. This was the first time the Crown had ever had a sight of this report, and it was noted immediately that the report concluded that there was no temazepam in the blood of Dorothy Niven at the time of her death. This was obviously contrary to the information the Procurator Fiscal had initially been provided with by the University of Glasgow Forensic Science Laboratory and was clearly of significance, as the original Crown case had been based upon the premise that Richard Karling had administered temazepam to Dorothy Niven, after which he had been able to overcome her resistance.

At the appeal hearing this report and four newly available reports from forensic pathologists were fully considered by the Crown. After a careful analysis of all of the evidence in the case, that presented at the original trial and the newly available evidence, it was accepted that the new reports, particularly the toxicology report from Guy's Hospital, was evidence which, had it been available, would have been bound to have had a material bearing on the decision of the jury. The conviction was therefore quashed in May 2001.

It is most unfortunate that the Crown were not aware of the toxicology results from Guy's Hospital at the time of the original trial. The very experienced Procurator Fiscal who worked on the case at that time is clear that at no stage prior to the appeal proceedings was he made aware of or given sight of the toxicology report from Guy's Hospital. However, once the Crown did become aware of this evidence, the case had to be re-assessed in light of that, and it was on that basis that the conviction required to be quashed.

You ask about the justification for an award of compensation to Richard Karling. Compensation is paid in cases where a conviction is reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. Ministers may also be prepared to make a payment of compensation ex gratia (without acceptance of liability) following a wrongful conviction or charge where this has resulted from serious default on the part of a member of a police force or some other public authority. There may also be exceptional circumstances that justify compensation in cases outside these categories.

In all cases applications for compensation are submitted by individuals and considered by the Scottish Ministers. If an application is accepted as a valid claim the amount of compensation paid is determined by an independent assessor. The assessment is based on a memorandum prepared by the Justice Department, compiling information submitted by the applicant, other relevant papers and taking account of comments from the applicant. In considering claims, the assessor applies principles similar to those on which claims for damages arising from civil wrongs are assessed.

Under the statutory scheme the Scottish Ministers have no power to vary the determination. In ex gratia claims the assessor's role is strictly to advise Ministers of the amount to be paid, but Ministers have agreed previously to be bound by the assessor's recommendation.

Scottish Ministers will not normally make any public or other statement about the amount of an award in a particular case. However I can confirm that Mr Karling made a successful application for compensation to Ministers and this claim has been settled.

I fully understand your concern about the lack of information provided to your constituent in this case. The trial and the appeal both pre-date the establishment of our dedicated service for victims and bereaved relatives, Victim Information and Advice (VIA). Specially selected and trained VIA staff now provide information to bereaved relatives in all cases involving criminal deaths, about the criminal justice system in general, and about what is happening with their particular case. While VIA is not designed to offer support, VIA staff can give advice about available support agencies and are happy to make contact with agencies on behalf of victims and their families.

Your constituent may be aware of the support group People Experiencing Trauma and Loss (PETAL) which offers long term support to families in the Strathclyde area who have been bereaved in similar circumstances. They can be contacted at their Hamilton office, telephone 01698 336646.

I hope that this reply has been helpful in addressing understandable concerns. I fully accept and regret the distress that the outcome of the criminal proceedings and lack of information and advice about what was happening in the case must have caused".

[29] The second letter from the Lord Advocate to Margaret Curran, MSP was dated on 30 October 2006 and was in the following terms:

"Thank you for your letter of 19 September 2006 on behalf of Mrs Niven and Dorothy's brother Paul, about the criminal proceedings against Richard Karling.

I can fully appreciate the family's desire to have the fullest of information in this case and I hope the following details answer their remaining questions.

As you are aware, many of Dorothy's clothes were destroyed at the mortuary. This was because they were considered to be a biohazard by mortuary staff, due to the fact they were heavily soiled. Normally in cases such as this, the police retain clothing as evidence. It is regrettable that this was not done, however, at the time of the trial there was still sufficient evidence to allow the Crown to prove their case.

Guy's Hospital were not asked to ascertain the levels of temazepam in Dorothy's blood because the evidence in relation to that matter had already been obtained, in line with normal procedures, from the Glasgow University Laboratory. Procurators Fiscal do not, as a matter of course, carry out checks on work completed by experts they have instructed and there was no reason in this particular case to doubt the accuracy of the results from the Glasgow Laboratory.

It is most unfortunate that the Procurator Fiscal did not see the report prepared by Guy's Hospital at an earlier stage. Had he done so, he would, as you point out, have become aware of the inconsistencies at that time. However, as he was advised orally that no poisons had been found and as such considered the information to be of no assistance to the prosecution, he did not believe there was any need for him to request the written report. It has to be accepted, with hindsight, that he should have asked for sight of the report, but I believe that given the information available to him, his actions at the time were understandable.

The four new reports presented at the appeal came from experienced forensic pathologists instructed by the defence. These pathologists were Professor Bernard Knight, Professor Derek Pounder, Dr Albert C Hunt and Professor M A Green. As you know, the Crown required to prove that

Dorothy Niven's death was due to asphyxiation at the hands of Richard Karling. The Crown pathologists, at both the original criminal trial and the appeal, maintained that the case of death was asphyxiation. However, the defence pathologists held contrary views or at least believed that other causes could not be sufficiently excluded to enable the cause of death to be certified as asphyxiation. This difference of opinion on such a fundamental matter between eminent pathologists, along with the difficulty in relation to the presence of temazepam, led to the quashing of Richard Karling's conviction.

The presence of temazepam was central to the conviction at the trial - indeed the trial judge directed the jury that they could not convict Richard Karling unless they were satisfied that he had administered temazepam to Dorothy Niven.

The final point in your letter which I can answer relates to Mrs Niven's perception of the Procurator Fiscal as extremely unsympathetic and ignorant. I am sorry that this was their perception, particularly given the very tragic circumstances the family found themselves in at the time of both the original trial and the appeal process. However, I would wish to assure Mrs Niven that Mr Green is a very experienced prosecutor who is aware of the need to liaise with and provide information to victims of crime and their relatives in a professional but sensitive manner. I know that the last thing he would want to do would be to cause distress to family members in such a position, and clearly would be concerned if any victim or next kin felt that they had received such treatment.

Finally, in your letter you ask for information about the award of compensation to Mr Karling. As you are aware, these awards are made by the Justice Department but I am passing a copy of your letter to Cathy Jamieson so that you can receive a reply on that matter.

I hope this information is helpful to Mrs Niven and Dorothy's brother".

[30] On 20 February 2008 the solicitor for the petitioner wrote to the Lord Advocate in the following terms:

"We act on behalf of the mother of Dorothy Niven who died on 28 June 1995.

On December 1995 a Richard Wilhelm Karling was convicted of murdering Ms Niven. On 16 May 2001 that conviction was quashed following an appeal to the High Court of Justiciary. You will be aware of the outline submission on behalf of the Lord Advocate, the conclusion of which was that the Crown's position was that the conviction falls to be quashed. In particular the original charge Mr Karling had faced was that he did 'administer temazepam to her whereby she became intoxicated and...did force her face into a pillow and asphyxiate her and murder her...'. The Crown required to establish those matters beyond a reasonable doubt but, in light of highly disputed evidence as to temazepam being in Ms Niven's body and highly disputed evidence of asphyxiation, the Crown did not seek to uphold the conviction.

There have been communications between yourself and the Solicitor General after the quashing of the conviction and the award of compensation to Mr Karling. In particular there have been communications with Ms Margaret Curran MSP on behalf of the family. There was also recently a meeting between the Solicitor General, Ms Margaret Curran MSP, our client and the brother of the deceased. In none of these communications or meetings has the question of an inquiry into the death of Dorothy Niven ever been raised. It is our position that the question should have been raised and considered having regard to your duties under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. The death was sudden, suspicious and unexplained and gives rise to serious public concern.

The 1976 Act provides that:

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

(a) ...; or

(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 in 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 the most closely connected shall investigate those circumstances and apply to the sheriff for the holding of an inquiry under this Act into the circumstances'.

It is clear that the trial of Mr Karling and subsequent appeals have not resulted in a full examination of the circumstances of the death of Dorothy Niven. There has been an investigation into whether all of the available evidence has established beyond reasonable doubt that Mr Karling caused the death in the manner alleged in the charge against him. It has only been decided that the evidence has not established that. In particular it has not resolved.

(1) whether there was actually temazepam in the blood of Ms Niven at the time of her death

(2) whether Ms Niven actually suffered from diabetes

(3) whether the death was more likely to have occurred as a result of natural causes or a result of the intervention of a third party

(4) which of the alternative causes of Ms Niven's death is more likely to be true.

Indeed, it can be said that the trial of Mr Karling and the subsequent appeals and evidence have only served to, at least, leave her death all the more unexplained.

We would also draw to your attention article 2 of the European Convention for Human Rights 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; that negligent, culpable or discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing is unjustified, is allayed and dangerous practices and procedures are rectified; and those who have lost their relatives may at least have the satisfaction of knowing that the lessons learned from the death may save the lives of others. In the outline submission for the Lord Advocate, paragraph (5) stated 'notwithstanding additional evidence there remains a substantial body of circumstantial evidence incriminative of the appellant'. The article is engaged by the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.

Our position is that an inquiry should be held. We are aware however of certain apparent failures on the part of the state in respect of the death of Dorothy Niven:

(1) the movement of the body at the scene of the crime

(2) failures in procedures in taking samples of blood

(3) destruction of her clothes at the mortuary

(4) failure of the Crown to obtain the written report from Guy's Hospital, London at the time of the trial and not until some years later. The report disclosed negative tests for temazepam (notwithstanding opinions expressed on the basis of tests at Glasgow University at the time of the trial).

It may be in light of the foregoing that it would be considered inappropriate for you to come to the decision regarding an inquiry under the 1976 Act and that the decision should be referred to the Scottish Ministers to consider an inquiry under the Inquiries Act 2005 and in particular to enable such a decision to made as independently as possible.

We should be pleased to hear from you as soon as possible and a decision made within 28 days of this request for an Inquiry".

[31] After a reminder dated 2 April the Deputy Crown Agent replied on behalf of the Lord Advocate in a letter dated 8 May 2008 in the following terms:

"Thank you for your letters dated 20 February and 2 April 2008 to the Lord Advocate, on behalf of your client Mrs Niven. I have been asked to reply on the Lord Advocate's behalf.

In your letter, you firstly request that a Fatal Accident Inquiry be held into the circumstances surrounding the death of Mrs Niven's daughter, Dorothy Niven, and you helpfully highlight section1(1)(b) of the Fatal Accident and Sudden Deaths Inquiries (Scotland) Act 1976. I note your position that you consider the death to have been sudden, suspicious and unexplained and that it gives rise to serious public concern.

Crown Counsel have considered the circumstances of this death and have instructed that a Fatal Accident Inquiry should not be held into the circumstances surrounding Dorothy Niven's death. There are a number of reasons for this, as follows;

·       There has been an extensive criminal investigation, resulting in both a criminal trial and criminal appeal. During the investigation and subsequent proceedings, there was a full examination into the circumstances of the death and in particular into the cause of the death;

·       All of the available evidence was led at the trial, the appeal proceedings or both, which were in public, and there is no new information available at this time about any aspect of the death (including the cause of the death);

·       The family have been advised of all of the available evidence, and the background and decision-making in both the trial and the appeal;

·       The family have met with the Solicitor General to discuss the death, and this provided them with the opportunity of asking any questions they might have about the evidence and the outcome of the proceedings;

·       No systemic failings have been identified which are associated with the death which could be investigated at an Inquiry;

·       There are no public interest issues which could be investigated at an inquiry, such as changes to legislation or particular policies operated by parties involved; and

·       There are no identifiable public concerns or fears about the death which could be allayed by the holding of a Fatal Accident Inquiry.

It is deeply regrettable that despite the extensive criminal investigation, and the subsequent criminal trial and appeal proceedings, it has not been possible to judicially determine culpability for Dorothy Niven's death. Crown Counsel are aware of the distress such an outcome can cause. As previously mentioned, the Solicitor General met personally with the family for that reason, to discuss with them the extent of the investigation, the evidence in the case and the difficulties which had arisen in relation to that evidence, and also to afford them the opportunity to ask any questions which they had.

However, Crown Counsel do not consider that it is necessary in the public interest, as referred to in section 1(1)(b) of the 1976 Act, to hold a Fatal Accident Inquiry on this occasion. Of course, should any new information become available consideration would be given to that and the decisions taken in the case to date would be reviewed in light of that information.

In your letter you also make reference to article 2 of the European Convention on Human Rights and you state, in the final paragraph on page 2 of your letter, that this article is engaged by the 1976 Act. You also list a number of what you consider to be apparent failures on the part of the state in respect of the death.

The basis upon which you consider article 2 to be engaged in this case is not clear. Article 2 does, of course, impose on the state certain general obligations - including obligations to make adequate provision in their law for the protection of human life, to ensure the effective enforcement of the law and to ensure the proper investigation of deaths. Crown Counsel are satisfied that these general obligations have been met, but as this death did not occur at the hands of the state, there would not appear to be any basis for the suggestion that article 2 is engaged on this occasion. I would be happy to hear from you further with any clarification you might be a position to offer as to why you consider article 2 might have been engaged in the circumstances of this case.

In the meantime however I note that, towards the end of your letter, you also make reference to an Inquiry under the Inquires Act 2005. You seem to suggest that such an Inquiry should be considered if Crown Counsel believe it inappropriate to make a decision on a Fatal Accident Inquiry. Crown Counsel have, however, been able to reach a decision on a Fatal Accident Inquiry.

I appreciate that this decision may be disappointing for your client, but I hope my letter is helpful in explaining the reasons for this".

The remedies sought
[32] In this application for judicial review the petitioner challenges the decisions contained in the Deputy Crown Agent's letter of 8 May 2008 written on behalf of the Lord Advocate, and which set out the decisions taken on her behalf by Crown counsel. The petitioner seeks declarator that she is entitled to an independent, effective and reasonably prompt public inquiry into the death of her daughter, and at which her next of kin can be legally represented; that she be provided with the relevant material and be able to cross-examine the principal witnesses; and that the failure on the part of the respondent 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. The petitioner also asks for declarator that the decision of 8 May 2008 to refuse to order a fatal accident inquiry under section 1(1)(b) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, and separately a public inquiry in terms of the Inquiries Act 2005, section 1, was unreasonable and irrational. The petitioner seeks reduction of those decisions. The court has also been asked to grant declarator that the Lord Advocate is obliged to order a fatal accident inquiry under either the 1976 or the 2005 Act, along with an order ordaining her to cause an inquiry to be held, by such procedure, and within such period, as the court may determine.

The submissions on behalf of the parties
[33] Mr O'Neil's submissions on behalf of the petitioner focussed on the passage in the decision letter questioning the engagement of article 2 of ECHR. He submitted that this showed that article 2 had not been properly considered. He interpreted the letter as proceeding upon the basis that article 2 did not apply because Ms Niven's death occurred before the commencement of both the Scotland Act 1998 and the Human Rights Act 1998, although it seems to me that on the face of the letter the concern was that her death "did not occur at the hands of the State". Nevertheless counsel for the respondent confirmed that, given the date of Ms Niven's death, there was an issue between the parties concerning the applicability of article 2 to the state's obligations.

[34] Mr O'Neil provided the court with a lengthy written document containing a chronology of events; the remedies sought; the statutory framework; the common law case; the Convention rights case; a detailed submission on the retrospectivity of the Human Rights Act; and a general discussion on the sufficiency of different systems for the investigation of deaths. It contains extensive reference to the case law. I will not attempt to summarise it. The main thrust of his approach was that:

(a) article 2 was engaged,

(b) the respondent failed to appreciate that, and

(c) the engagement of article 2, with the consequential obligation to have regard to the article 2 jurisprudence, meant that the respondent's decision not to hold an inquiry was open to challenge.

[35] Mr O'Neil submitted that there remained a large number of unanswered questions as to the circumstances of Ms Niven's death and as to the subsequent investigation and trial. It was in the public interest that they be fully investigated. Article 2's engagement underlines the importance of the views and interests of the next of kin, and in learning the appropriate lessons from what happened. He considered the case of R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 to be the central authority in support of his submission. Reference was also made to Moss v HM Coroner for the North and South District of Durham and Darlington [2008] EWHC 2940 (Admin), Menson v UK [2003] 37 EHRR 220, R (L) v Home Secretary [2008] 3 WLR 1325, and Pereira Henriques v Luxembourg ECtHR 9 May 2006. Initially Mr O'Neil's submission was that if I upheld his case then I should quash the respondent's decision and remit the matter to her for reconsideration in the light of "the full gamut of her article 2 obligations," but by the end of the hearing he invited me to order that an inquiry be held.

[36] For the respondent Ms Crawford said that she would present a submission on the retrospectivity issue; however her principal position was that the Lord Advocate's decision was compatible with the requirements of article 2 of ECHR, thus, on the assumption that article 2 was engaged, there was no illegality. According to Ms Crawford one must consider both the full circumstances of the case and the purpose of any obligation to investigate under article 2. The purpose of an article 2 obligation to investigate informs the answer to the question whether the Lord Advocate correctly exercised her discretion in refusing to hold an inquiry.

[37] Ms Crawford drew attention to the part of the decision letter which states:

".......article 2 does, of course, impose on the state certain general obligations ‑ including obligations to make adequate provision in their law for the protection of human life, to ensure the effective enforcement of the law and to ensure the proper investigation of deaths. Crown Counsel are satisfied that these general obligations have been met...".

The remainder of the sentence states:

"...but as this death did not occur at the hands of the State, there would not appear to be any basis for the suggestion that article 2 is engaged on this occasion".

Ms Crawford accepted that a more extensive level of inquiry may be required where a death has occurred at the hands of the state. However, in the present case the investigations which had been carried out were more than sufficient to meet the relevant article 2 obligations.

[38] Ms Crawford focussed on the purpose of article 2 of ECHR. Fundamentally it imposes a positive obligation on signatory states to take all available steps to safeguard human life, including the prohibition of the unlawful taking of life. Reference was made to Edwards v UK 2002 35 EHRR 19, paras 54 and 69. The decisions in Menson and Penreira Henriques were to similar effect. Ms Crawford submitted that the positive duty under article 2 entailed a primary duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to life, backed up by law enforcement machinery for the suppression and punishment of breaches of those provisions. Where the state's deterrent machinery had not worked, there required to be appropriate law enforcement procedures. However article 2 did not require a mechanism to answer all questions a bereaved family may wish to have answered. Reference was made to Keenan v UK (2001) 33 EHRR 38, paragraphs 88/9, and to Angelova v Bulgaria (2008) 47 EHRR 7 at paragraphs 93/4.

[39] Ms Crawford observed that, apart from a statement by Mr Karling, there was no evidence that Ms Niven was other than fit and healthy at the time, nor that she had diabetes. No one had suggested that she died of temazepam toxicity, but rather that it allowed Mr Karling to overcome her ability to resist him. The deterrence of the unlawful loss of life was secured in the UK by the law of murder and culpable homicide, backed up by a system of criminal justice capable of preventing, suppressing and punishing intentional loss of life. In other cases the deterrence of acts threatening loss of life may be secured by other laws, for example civil, administrative or disciplinary measures, supported by appropriate proceedings to prevent or suppress breaches of those deterrent measures. The investigatory obligation has its proper focus on loss of life - to see that the state has implemented the measures and systems designed to protect the life of the deceased. It follows that the Lord Advocate does not of necessity have to answer every question which may be put by relatives. Reference was made to Emm's Pets. 2008 SLT 2, paragraphs 48 to 50, and to Banks v UK (2007) 45 EHRR SE 2, paragraph 23.

[40] Ms Crawford submitted that in the present case it is of importance that there is no question of state accountability for Ms Niven's death. The UK has sufficient protections in the relevant framework at common law and in the criminal justice system, including deterrents and punishment, to meet its article 2 obligations to safeguard human life in general. This could be described as the state's "general obligations".

[41] According to Ms Crawford, the real issue is not article 2, but whether the Lord Advocate exercised her discretion correctly under and in terms of the 1976 Act. In that regard she had addressed all the relevant issues, had taken a decision which cannot be described as unreasonable or irrational, and had given clear and adequate reasons. My own clear impression from the debate as a whole was that this proposition was not under serious challenge. What was called "the petitioner's common law case" was not pressed with any vigour. However Mr O'Neil submitted that the additional requirements of article 2 of ECHR are critically important, in that they overcome what would otherwise amount to a good defence to the petition had it been presented solely in the context of the 1976 Act and on the basis of purely domestic administrative law review principles.

[42] Reverting to Ms Crawford's submissions, under reference to Ramsahai v The Netherlands (2008) 46 EHRR 43, and in particular at paragraph 410, it was submitted that relatives of a deceased do not have a free-standing right to an inquiry into an unexplained death. The proper issue, at least when the heightened level of investigation explained in Edwards does not arise, is whether there is any good reason to explore possible failures in the UK's article 2 obligations in respect of the safeguarding of life in general. In the present case a conviction was not obtained, and questions do remain unanswered, but it does not follow that in the absence of a new inquiry there has been a failure of the state to comply with its article 2 obligations. Reference was made to Taylor Family and Others v UK, Application No 23412/94 which emphasised the different considerations arising in respect of possible state accountability for a death. Such would justify a greater level of scrutiny. But that would still be a different thing from doubts or questions raised over the efficacy or otherwise of a particular investigation. Such concerns do not create separate article 2 obligations to enquire into the efficacy of a particular criminal investigation and prosecution. Ms Crawford submitted that if a trial collapses because of a mistake by the prosecution, it does not follow that article 2 triggers a requirement for a separate inquiry. That would fall outwith the scope and purpose of article 2. Reference was made to Amin, and in particular to the opinion of Lord Bingham at paragraphs 23/25 and 31, and to R (L) v Home Secretary, [2008] 3 WLR 1325. at paragraphs 24, 29, 31, 39 and 78. Ms Crawford cited McKerr v UK (2002) 34 EHRR 553, paragraph 13; Brecknell v UK, (2008) 46 EHRR 42, at paras 65 and 70; and Szula v UK (2007) 44 EHRR SE 19. According to Ms Crawford the family had been sufficiently involved in the whole matter. There had been public proceedings and the family had a meeting with the Solicitor General for Scotland to discuss the case and pose questions. So far as the refusal of a fatal accident inquiry is concerned, it was reasonable to take account of the investigations already carried out and that the circumstances had been discussed with the family.

[43] On behalf of the Lord Advocate Ms Crawford presented a detailed submission in reply to Mr O'Neill's submissions on the retrospectivity issue. However, as indicated above, her main position was that assuming article 2 did apply, its requirements did not render the decisions unlawful. The Lord Advocate was entitled to conclude, having regard to the purpose of article 2, that the previous investigations into Ms Niven's death had been effective and sufficient. In general the Lord Advocate had properly exercised the discretion afforded to her and the application for judicial review should be refused.

[44] In response to Ms Crawford's address Mr O'Neill provided the court with a further written submission. He stressed that the Convention is a "living instrument" which has been subject to significant development in recent years, particularly on the issue of the procedural investigative duties implicit in article 2. Greater weight should be placed upon the more recent pronouncements of the Strasbourg court. Mr O'Neill suggested that the respondent's submissions involved an illicit re-writing of the plain terms of her decision. It was clear that the respondent did not consider that article 2 was engaged. It follows that she did not have regard to the obligations and requirements of article 2 in her decision to refuse an inquiry. In any event her decision was simply incompatible with the requirements of article 2 and falls to be reduced. In particular, if and insofar as it was based on a distinction being drawn between deaths involving collusion or action by state agents and those involving no state agency, then this was an error in law. The Strasbourg jurisprudence allows for no distinctions based on whether the state is or is not implicated in the death.

[45] Mr O'Neill reviewed the cases in relation to the nature and forms of effective official investigation into deaths when considering the requirements of article 2. It was submitted that article 2 does not distinguish between intensive and non-intensive cases. There are no discrete categories. Everything is fact dependent. Reference was made to the speech of Lord Steyn in Amin. The cases in general show that article 2 is being interpreted ever more broadly, applying initially to killings by state agents; then applying to failures on the part of the state to prevent killings by third parties; then to investigations into deaths in public hospitals; then deaths in custody; and most recently to investigations into any suspicious deaths within the jurisdiction, even where there is no suggestion of any state involvement in the deaths nor any specific failure on the part of the state to prevent the deaths occurring. With regard to this final aspect, particular reference was made to the cases of Öneryildiz, Menson and Pereira Henriques. It was submitted that fundamentally the state is obliged to explain what has happened; it is not just about accountability and culpability. The Strasbourg court applies a flexible fact specific test to the cases which come before it to the effect that where a death occurs in a situation which raises issues of public concern, regardless of questions of direct or indirect state involvement, or matters of clinical negligence (gross or otherwise), then a failure on the part of the state to ensure a full inquiry into the facts will constitute a breach of article 2.

[46] Mr O'Neill urged the court to reject any rigid scheme or classification of different types of cases and avoid the creation of any hard and fast rules. He asked for a simple application of a general principle of public interest. He suggested that it is this general principle of public interest which should be applied to the variety of factual scenarios encompassing unexplained deaths that may come before the courts. In doing this the court should have at the forefront of its mind the developing nature of the Convention. Mr O'Neill stressed that the relatives of Ms Niven simply want to find out how and why she died.

[47] Under reference to the case of McKerr at paragraphs 113 and 134, it was submitted that it is clear that there were deficiencies in the investigations carried out so far. There has been insufficient public scrutiny to secure both accountability and an appropriate level of participation by the next of kin to safeguard their legitimate interests, all as required by Lord Bingham in his speech at paragraph 20 in Amin. The cases show that the fact that there has been a criminal trial will not always be sufficient to constitute sufficient investigation. The correct approach was articulated in the speeches of Lord Steyn and Lord Hope in Amin.

[48] Mr O'Neil submitted that the suggestion from the respondent's counsel that there should be less intense scrutiny when the state is not involved in the circumstances of the death was to misunderstand and misrepresent the jurisprudence of the European Court of Human Rights. Reference was made to Šilih v Slovenia ECtHR, 28 June 2007, and in particular the court's observation that article 2 imposes an obligation on the state "to set up an effective judicial system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter .....in the court's view, this obligation has an autonomous scope and is not confined to cases where it is apparent that the state could have been responsible, either directly or through its positive obligations, for the death of an individual" (paragraph 94). It was observed that Lord Phillips in R (L) v Home Secretary [2008] 3 WLR 1325 at paragraph 26 of his opinion, under particular reference to the case of Menson, stressed that the duty to investigate imposed by article 2 can arise even where there is no question of any direct involvement of a state agent. Lord Phillips continued:

"It seems to me that the obligation to have an investigation in circumstances such as these is not so much a secondary procedural obligation but rather part of the positive obligation, also noted by the court, to have in place 'effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions'".

[49] Mr O'Neill submitted that the respondent's claim that there are more stringent duties in deaths involving state agents as opposed to other cases should be rejected, as should her claim that the procedural obligation may vary in intensity or purpose depending on whether state agents are involved.

[50] In a further short submission Ms Crawford observed that there was no Strasbourg case where it had been said that an intensity of review of the kind desired by the petitioner is required in respect of an unnatural death at the hands of a third party, for example a suspected murder. Mr O'Neill, despite the very large number of cases lodged with the court, had been unable to point to any concrete example of a decision reflecting the case now put forward.

Discussion, review of the case law and decision
[51] Article 2 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), when read along with article 1, obliges the contracting states to ensure that everyone's right to life is protected by law. It is now well established that this implies certain procedural safeguards, including a duty to carry out an effective investigation whenever the circumstances of a death so require. As the debate before me progressed it became clear that the key issue is whether the state has complied with the obligations arising under article 2 of ECHR. If it has, there is no sound basis for quashing the decision of 8 May 2008. The issue of retrospectivity arises only if the state has not complied with its article 2 obligations.

[52] The first part of this opinion demonstrates that to date extensive investigations have occurred into the circumstances of Ms Niven's death. They led to a criminal trial and an appeal, both held in public, the latter including the examination of new expert evidence over eight days before an Inner House judge. Relatives of Ms Niven have had full written explanations from Strathclyde Police and the Crown Office, and a meeting with the Solicitor General for Scotland. Nonetheless it is equally apparent that a large number of legitimate and important questions remain outstanding. This must be a matter of considerable concern and distress to Ms Niven's family and friends. Most importantly, how and why Ms Niven died remain unknown; and there are many subsidiary unanswered questions, for example, was there temazepam in her blood, and if so, how much?

[53] It is an important factor in this case that it is not suggested that the state in any of its guises bears any responsibility, however indirect, for Ms Niven's death. There is no reason to suspect that the state is incriminated in any way. Even a casual glance at the large number of cases put before me shows that, in the main, the courts have become involved in a dispute over the investigatory aspects of article 2 when the state may be accountable, at least in part, for a death or deaths. Further, as Ms Crawford pointed out, no case has been cited in which the state has been criticised for failing to get to the bottom of a suspected murder carried out by a third party.

[54] Some of the decisions relate to circumstances involving the use of deliberate and lethal force by agents of the state, or to alleged collusion by state authorities in murders committed by others. Others deal with alleged failures in safeguarding the life of someone in the state's custody or care, for example, a prisoner who has committed suicide, or a hospital which has failed to provide appropriate care for a patient. More recently there has been an increase in cases which focus on systemic failures in the state's machinery designed to protect life, or where the state is undermining confidence in such machinery, for example by dragging its heels or turning a blind eye to important matters. The common feature in these cases is that the state has a conflict of interest as between its investigatory obligation and its potential involvement in the subject matter of the investigation. In such circumstances judges have emphasised the need for an independent and public investigation, with appropriate involvement by the next of kin, carried out in circumstances which allow for adequate public scrutiny. Thus, for example, an investigation by the RUC into allegations that it had colluded with paramilitary organisations who murdered relatives of the complainants was not sufficient to meet the state's article 2 obligations.

[55] Many of the cases talk of a "heightened intensity of investigation" or "particular stringency" when the state is involved or has an interest in the outcome, and it is not uncommon for judges and commentators to refer, in a loose sense, to article 2 being engaged if and when the state is implicated in some way. Nonetheless it is also clear that article 2 is engaged more generally when an unnatural or suspicious death occurs. However, so far as the content of the state's obligations under article 2 is concerned, and particularly in respect of any specific investigatory obligations, the case law teaches that everything depends upon the particular facts of the case, and this is so even when the state is directly involved. It is apparent from a review of the decisions that the nature and extent of the state's procedural obligations under article 2 is extremely fact sensitive. It has often been said that 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 the attribution of criminal responsibility. The Strasbourg Court has stressed that the obligation to investigate is "one of means, not result". In other words the issue is whether the form and nature of the investigation is appropriate in all the circumstances. A failure to achieve a conviction or to obtain answers to the main questions does not automatically lead to non-compliance with article 2. There will be other situations where a conviction after a criminal trial is not sufficient.

[56] In addition to the state itself desisting from the unjustified taking of life, it fulfils its more general obligations to abide by and promote the terms of article 2 by instituting and operating an appropriate framework of laws and law enforcement institutions. The state is obliged to provide mechanisms whereby the criminal, disciplinary or civil responsibility of persons who may be held answerable for a death can be established. Often an investigation in some shape or form will be an important element in the state's duties. I agree with Mr O'Neill's submission as to the dangers of any rigid classification of different types of cases or as to a hierarchy of intensity of inquiry. There have been, and no doubt in the future will be cases where the most intensive investigation and public scrutiny is required even when there is no question of direct state involvement in what happened. The Piper Alpha disaster and the subsequent inquiry before Lord Cullen was perhaps a good example. Nonetheless when it comes to legal duties under article 2, the guiding principle is whether the need for an effective inquiry demands further investigation, perhaps at the hands of an independent person in public, and with greater opportunity for the involvement and participation of relatives, in order that the state's fundamental duty to protect and safeguard human life is fulfilled. Thus the efficacy of an investigation is judged by whether it has fulfilled the purpose of demonstrating compliance with the state's duties under article 2. The issue in the present case is whether that guiding principle points to a need for an inquiry of the kind desired by the petitioner. Even at this remove in time, I must assume that it is at least possible that some or all of the unanswered questions will be resolved. The question is whether the state is under an obligation to order a further attempt to do so. The answer turns upon whether a failure in this regard would amount to a breach of the state's duties under article 2 of the ECHR.

[57] With these general observations in mind I now turn to consider some of the cases. McCann and Others v United Kingdom 21 EHRR 97 arose out of the killing by members of the security forces of three IRA terrorist suspects in Gibraltar. The court talked of the need for particularly careful scrutiny when lethal force was used by the state, and the discussion provides a good example of the nature and extent of the detailed scrutiny appropriate in such cases. The European Court of Human Rights carried out that scrutiny itself. It decided that the killing of the terrorists constituted the use of force which was more than was absolutely necessary to defend persons from unlawful violence within the meaning of article 2(2)(a) of the Convention. Accordingly there had been a breach of article 2.

[58] During the discussion before me there was considerable reference to Edwards v United Kingdom (2002) 35 EHRR 19. The applicants' son died after being attacked by a fellow prisoner. Relying upon article 2 they complained that the authorities had failed to protect their son's life and were responsible for his death, and further that the investigation into his death was neither adequate nor effective. The decision in the case was based on the circumstance that the deceased was a vulnerable individual who had lost his life in an horrendous manner due to a series of failures by public bodies and servants who bore a responsibility to safeguard his welfare. As a result the public interest attaching to the issues thrown up by the case was such as to call for the widest exposure possible. The court noted that there had been an inquiry into the circumstances which heard from a large number of witnesses and which reviewed in detail the way in which those involved were treated by the various medical, police, judicial and prison authorities. The report of the inquiry ran to 388 pages. It reached numerous findings of defects and deficiencies, and made recommendations for future practice. It was described as a meticulous document and the court had no hesitation in relying on its assessment as to the facts and issues in the case. Nonetheless it found that the lack of power to compel witnesses and the private character of the proceedings, from which the applicants were excluded save when they were giving evidence, failed to comply with the requirements of article 2 of the Convention to hold an effective investigation into the death. Accordingly there had been a violation of the procedural obligations of article 2 in those respects.

[59] In R (Khan) v Secretary of State for Health [2004] 1 WLR 971, the Court of Appeal considered the state's duty to investigate the circumstances of a three year old girl suffering a cardiac arrest and dying while undergoing dialysis in an NHS hospital. Following a police investigation and report, the Crown Prosecution Service decided not to initiate any criminal proceedings. The NHS Trust which ran the hospital carried out its own private investigation and admitted liability. The claimant and his family played no part in those investigations. In 2002 an inquest into the death was opened and then adjourned in order to enable the claimant to seek funding for legal representation, since his means were such that he did not qualify for publicly funded representation. In response to a request, the Secretary of State maintained that he had no power to provide the claimant with funding, and refused to hold a separate inquiry into the death, in respect of which the claimant would qualify for public funding. The Court of Appeal held that the state had not yet discharged the procedural obligations imposed upon it by article 2 and that, in all the circumstances of the case, the judicial investigation required by article 2 would not be an effective investigation unless the claimant and his family could play a full part in it. At paragraph 62 of the judgment of the court delivered by Brooke, L.J. it was said, at paragraph 62:

"It is possible to derive from these Strasbourg cases the following principles. (i) Where agents of a state bear potential responsibility for the loss of a human life, the state should provide a procedural mechanism whereby the cause of death may be investigated and responsibility for the death ascertained through an investigation held in public which must be both judicial and effective.

(ii) The Convention is not prescriptive about the manner in which this investigation should take place, but the more serious the events that call for inquiry, the more intensive should be the process of public scrutiny. In such cases the families of the deceased should be involved in the procedure to the extent that is necessary to safeguard their interests".

[60] Keenan v United Kingdom (2001) 33 EHRR 38 concerned the suicide of a prisoner with a mental disorder. The court emphasised the need for proportionality, but also particular stringency when a prisoner dies in custody. Stress was placed upon the importance of the primary duty on the state to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of those provisions.

[61] Counsel for the petitioner described the case of R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 as the central decision in support of the present petition. It is therefore appropriate to consider it in some detail. The deceased, while serving a custodial sentence in a Young Offenders Institution, was murdered by his cell mate, who had a history of violent and racist behaviour. A number of investigations into the death took place. An inquest was opened but adjourned when the cell mate was charged with murder, and not resumed after he was convicted. An internal prison service investigation recommended changes to the regime, but also that no individual member of staff should be disciplined. The police investigation advised that no prosecution should be brought against the prison service. The Commission for Racial Equality (CRE) conducted an investigation into racial discrimination in the prison service, with the circumstances of the deceased's death as one of the terms of reference, but declined, save to a minimal extent, to hold the inquiry's hearings in public or to permit the family to participate. The Secretary of State refused the family's request for a public inquiry into the death on the grounds that such an inquiry would add nothing of substance and would not be in the public interest.

[62] The claimant, the deceased's uncle, challenged the Secretary of State's decision in judicial review proceedings. The judge granted a declaration that an independent public investigation with the deceased's family legally represented, provided with the relevant material, and able to cross examine the principal witnesses, should be held in order to satisfy the state's procedural duty under article 2 to investigate the deceased's death. The Court of Appeal upheld the Secretary of State's appeal, concluding that the series of inquiries already held satisfied the state's investigative duty under article 2. The case progressed to the House of Lords. Lord Bingham of Cornhill carried out a careful analysis of the jurisprudence on the state's investigatory duties under article 2. He observed that by implication it requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, amongst others, agents of the state. It is essential that a killing by the state be subject to some form of open and objective oversight. Where an individual is taken into police custody in good health and found to be injured on release it is incumbent on the state to provide a plausible explanation of how the injuries were caused. Where the individual dies in custody, the obligation to account is "particularly stringent". "Where the facts are largely or wholly within the knowledge of the state authorities there is an onus on the state to provide a satisfactory and convincing explanation of how the death or injury occurred".

[63] Lord Bingham continued to the effect that the need for an effective official investigation is not confined to cases where it is apparent that the killing was caused by an agent of the state. He noted that the essential purpose of the investigation was defined by the court in Jordan as follows:

"to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. We cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures".

Investigation must be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified and to an identification and punishment of those responsible. This was described as an obligation not of result, but of means. In relation to alleged unlawful killing by state agents the person or persons responsible for the investigation must be truly independent from those implicated in the events. There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. The next of kin must be involved to the extent necessary to safeguard the victim's legitimate interests. Whatever the procedures used they must be sufficient to ensure the accountability of agents of the state so as to maintain public confidence and allay the legitimate concern that arises from the use of lethal force.

[64] Lord Bingham observed that the propositions which he had summarised were, in the main, laid down in cases involving the deliberate killing or alleged killing by agents of state. However the decision in Edwards was of central importance because it was not such a case, though it bore strong similarities to the case before their Lordships. In considering the adequacy of the investigations which had been carried out into the death of Christopher Edwards, the Strasbourg court had applied essentially the same principles as in the cases which his Lordship had considered. He continued:

"In my respectful opinion, the court was fully justified in doing so, for while any deliberate killing by state agents is bound to give rise to very grave disquiet, such an event is likely to be rare and the state's main task is to establish the facts and prosecute the culprits: systemic failure to protect the lives of persons detained may well call for even more anxious consideration and raise even more intractable problems".

He noted that in Edwards the ECHR defined the essential purpose of the duty of investigation as to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. Concepts of practical independence; the capability of achieving accountability and punishment; promptness and reasonable expedition; and a sufficient element of public scrutiny, including the involvement of the next of kin to the extent necessary to safeguard the victim's legitimate interests, were all emphasised. At paragraph 31 Lord Bingham said:

"The state's duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred: Menson v United Kingdom. It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or an unimportant duty. In this country effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing, if unjustified, is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others".

His Lordship then proceeded to examine in detail the nature and extent of the investigations which had been carried out into the death. He concluded at paragraph 37:

"Whether singly or together, the investigations conducted in this case are much less satisfactory than the long and thorough investigation conducted by the independent Queen's Counsel in Edwards case, but even that was held inadequate to satisfy article 2(1) because it was held in private, with no opportunity for the family to attend save when giving evidence themselves and without the power to obtain all relevant evidence".

He therefore agreed with the decision of Jackson J that on the facts there had not been an effective official investigation into the death of the deceased and that there should be an independent investigation, to be held in public, at which the family should be represented.

[65] It is apparent that the key issues of independence and of accountability underpinned Lord Bingham's reasoning. It was the state's involvement in the circumstances of the death which removed the case from the procedural requirements of article 2 applicable in more typical circumstances where the state's general framework of inquiry, enforcement, identification of culpability, etc are likely to be sufficient. Mr O'Neill for the petitioner placed central importance on the decision in Amin. However in Amin the court was considering the requirements of article 2 in the context of very different circumstances from those in the present application, and in particular against a background which triggered a need for the heightened intensity or level of investigation required when the state is in some way involved in or is responsible for the death, either directly or indirectly. Thus a criminal trial was insufficient because it did not address the state's potential responsibility for systemic failures which may have contributed to what happened. There was a need for a public and independent investigation into that aspect of the matter, with an appropriate role for the relatives. It followed that a private inquiry by a prison official was also inadequate. The CRE report was confined to race related issues and again was generally conducted in private.

[66] In the present case, the relevant issues and facts concerning the death have been explored, albeit in the context of the criminal trial. To date no new information concerning the circumstances of the death has been obtained by any party. No additional issues have arisen for further exploration, for example relating to state responsibility for the death, or to failures which potentially undermine the state's commitment to its article 2 obligations. Nothing of that nature arises in the present case.

[67] In his speech in Amin Lord Steyn explored the reasoning of the Court of Appeal. He emphasised that it was in error in distinguishing so clearly between deaths at the hands of the state where the state had used lethal force, and those where a negligent omission by the state had led to death at the hands of another in custody. He said:

"The Court of Appeal plainly thought that in the case of acts by state agents causing death in custody there is a more exacting and rigorous duty to investigate than in cases of negligent omissions leading to death in custody. That cases in the former category may be a greater affront to the public conscience than cases in the latter category can readily be accepted. But the investigation of cases of negligence resulting in the death of prisoners may often be more complex and may require more elaborate investigation. Systemic failures also affect more prisoners. The European Court of Human Rights has interpreted article 2 of the European Convention on Human Rights as imposing minimum standards which must be met in all cases. And in the decision in Edwards the European Court of Human Rights applied the same minimum standards to a case of omissions as it had previously applied in Jordan v United Kingdom to acts by state agents. A distinction drawn by the Court of Appeal infected its analysis of the Strasbourg decisions. Relying on this distinction the Court of Appeal in effect departed from the requirements as explained in Edwards. Given the crucial public importance of investigating all deaths in custody properly, I consider that full effect must be given to the Strasbourg jurisprudence".

[68] Lord Steyn stressed that there is an imperative for an independent and fully effective investigation not only into deaths directly at the hands of the state by the use of lethal force, but also when a prisoner dies in custody in circumstances which call out for a full explanation; the accountability of those concerned; and the learning of appropriate lessons for the future. All of that is not controversial in the present case. However there is no suggestion in Amin or elsewhere that the minimum standards required for cases involving the death of prisoners in custody must be imposed in all circumstances. It is clear that the minimum standards required in procedural terms will vary greatly according to the specific facts of the case. Contrary to the submissions made on behalf of the petitioner, I consider that it would be wrong to assume from decisions such as Amin that an investigation in the form of an inquest or a fatal accident inquiry under the 1976 Act is required in all cases where previous investigations have failed to explain the circumstances of a suspicious death. [69] An important element in the court's reasoning in Amin, and in cases like it, is the need to identify whether the circumstances of the death give rise to major issues of systemic or general failures in state activities which undermine its primary obligation under article 2 to respect and safeguard human life. A good example of the importance of this kind of reasoning is to be found in the recent decision of Lord Mackay of Drumadoon in Kennedy & Another v The Lord Advocate 2008 SLT 195. In that case the daughter and widow of two people who died following their infection with hepatitis C during the course of receiving blood products and blood transfusions petitioned for judicial review of the refusal by the Lord Advocate to hold fatal accident inquiries. The parties were agreed that there were reasonable grounds for taking the view that the deaths might have resulted from wrongful actings on the part of those responsible for providing the relevant supplies of blood. The state required to put in place a system that provided for the practical and effective investigation of the facts of such a death and the determination of civil liability. His Lordship held that, in the absence of a fatal accident inquiry, the investigations which had been carried out did not constitute a practical and effective investigation of the facts relating to the deaths. While the circumstances of Ms Niven's death are no less tragic, the wider public interest elements so prevalent in the case of Kennedy are notably absent. There are questions which can be posed as to certain matters concerning the subsequent investigation into Ms Niven's death, but they are separate from the circumstances of the death itself, and in any event, in themselves they do not raise issues of a wider nature such as might justify the present petition.

[70] In R (L) v Home Secretary [2008] 3 WLR 1325 the House of Lords dealt with the state's duty to investigate the attempted suicide of a prisoner in a Young Offenders Institution who, as a result, suffered permanent brain damage. The Court of Appeal had ordered the Secretary of State to order a full public inquiry. That decision was upheld by the House of Lords. At paragraph 113 Lord Mance said:

"In common, I understand, with all of your Lordships, I would reject the Secretary of State's submission that an article 2 investigation is only required where the state is in arguable breach of its substantive article 2 duty to protect life, in the sense that it ought arguably to have known of a real and immediate risk of a prisoner committing suicide and failed to take reasonable preventive measures. While it is dangerous to generalise and I confine myself for the present to circumstances such as those of the present case, I agree that the relationship between the state and prisoners is such that the state is bound to conduct an article 2 compliant inquiry whenever its system for preventing suicide fails and as a result the prisoner suffers injuries in circumstances of near suicide significantly effecting his or her ability to know, investigate, assess and/or take action by him - or herself - in relation to what has happened".

Again it can be noticed that emphasis was placed upon the importance of a proper investigation whenever there was a failure of a system designed by the state for protecting life. The decision took place against a background of "grim statistics" of many similar incidents in prison and the large numbers of prisoners with mental health problems. In the circumstances an internal investigation was insufficient - an impartial inquiry going beyond the issues of fault in the specific case and addressing the wider lessons, if any, was required.

[71] Counsel for the petitioner placed importance upon the case of Pereira Henriques v Luxembourg. It concerned a death caused by an industrial accident. There were allegations of serious breaches of work safety legislation. Such reports as had been obtained demonstrated discrepancies in the evidence as to the circumstances and the cause of the fatal accident. The authorities did not commission a building expert to view the site and provide an opinion. Investigations by the police and judicial authorities were simply abandoned with no outcome after it was decided that there would be no criminal prosecution. It was held that the absence of direct liability by the state did not exclude the application of article 2. An effective official investigation must, where appropriate, obtain evidence from relevant witnesses, including expert opinion if such is clearly required. The court concluded that the investigation was not effective in that an expert report had not been obtained. This prevented clarification of lingering grey areas.

[72] In my view it is important when considering this decision to note the context, namely an industrial accident in respect of which there was a clear public interest in a proper investigation, not only to identify any criminal responsibility, but also to address wider public interest concerns, for example as to the state's commitment to measures designed to promote safety at work, and in which there was an obvious need for the involvement of an expert witness. Whatever else, in the present case there has been no lack of expert reports.

[73] In Moss v HM Coroner for the North and South Districts of Durham and Darlington [2008] EWCH 2940 (Admin) Underhill J dealt with a case of alleged deliberate unlawful killing by a general practitioner working in the public health service. The GP was found not guilty of murder, manslaughter having been withheld from the jury. The judge held that it was clear that additional issues required to be explored, namely gross negligence on the part of the doctor and, importantly, third party acts and omissions contributing to the death, for example, the acts and omissions of officials in the relevant health authority. If simple negligence on the part of the doctor had been the only issue, the court would not have ordered further investigation. That matter could be explored in civil proceedings. Also, although there had been no inquest, the criminal trial fulfilled the necessary function of investigating and exposing in public the primary facts relating to the doctor's care of the deceased. In my view much the same can be said in the present case in relation to the criminal proceedings concerning Ms Niven's death, albeit unanswered questions remain. The reasons for the court's decision in Moss are set out at paragraph 27 as follows:

"It is my conclusion, after careful consideration, that the material relied on by Mr Cragg is sufficient to require investigation as part of any proper investigation into the causes and circumstances of Mr Moss's death. That material raises a real question as to whether the relevant authorities took sufficient steps to investigate repeated reports of inadequacies in Dr Martin's practice, including at least one report of concerns about his treatment of terminally ill patients, or to ensure that the initiative taken through Dr Sensier was carried through. That potential failure is quite distinct from any individual negligence on the part of Dr Martin himself. It may turn out that the steps taken, or not taken, were in fact entirely correct, or that any deficiencies may have had no impact on the circumstances of Mr Moss's death; but whether that is so will only appear once the facts have been properly investigated".

The coroner was ordered to resume his inquiries for this purpose. The decision is not authority for the proposition that the unsuccessful prosecution in the present case and the resultant unanswered questions, of themselves, trigger further procedural and investigatory obligations under article 2. The state was not directly involved in the deaths of Dr Martin's patients, but the circumstances indicated potential indirect responsibility and a need for an investigation into general failures, not only so that proper accountability could be addressed, but also to minimise the chances of the same happening again, all in line with the state's primary obligations under article 2.

[74] Pausing at this point I observe that while recent decisions do demonstrate that the procedural obligations under article 2 are being invoked in a wide variety of circumstances, in every case it remains necessary to focus on the particular circumstances and ask whether the investigations carried out to date have or have not been effective investigations. That question can only be answered on a proper understanding of the purpose of the procedural aspects of article 2. Unfortunately for the petitioner, that purpose 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. The case law demonstrates that in circumstances such as the present, the application of the state's general machinery for respecting and protecting human life, for example appropriate prohibitions in the criminal law and the operation of a suitable criminal justice system, are likely to be sufficient.

[75] In the decisions frequent reference is made to the case of Menson v United Kingdom [2003] 37 EHRR 220, and reliance has been placed upon it by the petitioner. The applicants were the siblings of Michael Menson, a black man who was killed as a result of being set on fire by assailants in a racist attack in London in 1997. The deceased was single and 33 years old. He suffered a mental breakdown in 1991 and was subsequently diagnosed and treated in hospital for schizophrenia. When not in hospital he lived in his own accommodation. However two months before his death he had moved into accommodation for persons with mental health problems. On 21 January 1997 he was given leave from Chase Farm Hospital and went to stay at this accommodation, namely Holden Lodge, North London. Late that evening his sister telephoned him to say that she had received a message from the hospital that he was to return there as soon as possible. Shortly after that call, Michael Menson left the lodge with the intention of returning to the hospital. However he took the wrong bus and ended up in Edmonton, North London. He was subsequently attacked by four white youths who had got off the bus with him. They set his back on fire, probably whilst he was lying face down on the ground. Subsequently he was found on fire by an off-duty fireman. He was in a state of severe shock with severe burns to his body. The fireman flagged down a passing police car and an ambulance was summoned. The police officers did not treat the circumstances of the discovery as suspicious and wrongly assumed that the injured party had set fire to himself. Consequently they failed to investigate the crime scene. They did not instigate any attempts to identify and arrest the attackers. It was only after specific instructions from his family at a later stage that the police began to investigate and treat the matter as suspicious.

[76] The court set out the events of the days after the attack. On 3 February Michael Menson had a cardiac arrest and died. Later that month the inquest into his death before the coroner's court was opened. The police reported to the coroner on several occasions, but copies of those reports were not disclosed to the family. In January 1998 an examination into the procedures and practices during the first stage of the investigation into Michael Menson's death was carried out by the Metropolitan Police Service (MPS). In March 1998 the results of this examination were produced. The family were informed that the examination confirmed some of the doubts that the inquiry was not handled as well as it could have been, and that an investigating officer had been appointed to look into the matter. The examination was made available to the coroner but was kept from the family as being confidential.

[77] Later that year the family sent a letter of complaint to the Police Complaints Authority (PCA) concerning the decision to withhold evidence from Michael Menson's family prior to the inquest. In September a verdict of unlawful killing was returned by a jury at the coroner's court following a hearing lasting just over one week, during which evidence had been given by a number of witnesses, including fire experts on behalf of the MPS. The family lodged a further letter with the PCA setting out the particulars of their complaints from the time that Michael Menson was discovered by the police until shortly after the inquest. It was said that there were major errors in the police investigation of his death which substantially diminished the chance of detecting and prosecuting those responsible; that there was a concerted effort by all key officers up to deputy assistant commissioner level to minimise and obscure those errors and deflect criticism from the police; and that the police investigation into the death was influenced by racism, the subsequent internal investigation having failed even to address this issue.

[78] The PCA appointed the Chief Constable of the Cambridgeshire Constabulary to investigate this complaint. In January 1999 the applicants were advised by counsel that there were no reasonable grounds for advising the grant of legal aid to bring proceedings against the police in the light of the domestic law in respect of actions of negligence and claims of racial discrimination against the police. In February 1999 the report of an inquiry chaired by Sir William McPherson of Cluny, a retired High Court judge, was published into matters arising from the death of Stephen Lawrence, a black 18 year old youth who was murdered by a group of youths on 22 April 1993. He found that institutional racism existed both in the MPS and in other police services and institutions countrywide.

[79] In March 1999 the family of Michael Menson, with the assistance of campaigners, leafleted the area within which the suspects lived appealing for further information in respect of the murder. Subsequently three suspects were arrested and charged in connection with the death. Two of the accused were committed for trial at the Central Criminal Court, London for the murder of Michael Menson and conspiracy to pervert the course of justice. The third accused was committed to stand trial for conspiracy to pervert the course of justice. In May 1999 another suspect was arrested in Northern Cyprus and charged there with the murder.

[80] The PCA decided to delay any further investigation into the applicant's complaints pending the outcome of the criminal case in the English court. In November 1999 the court in Northern Cyprus found the accused guilty of manslaughter and sentenced him to 14 years imprisonment. In December 1999 the Central Criminal Court in London found one accused guilty of murder and sentenced him to life imprisonment. Another received a 10 year prison sentence for manslaughter. A third was convicted of perverting the course of justice. All of the accused's appeals were rejected, although the sentence of one of them was reduced.

[81] The applicants maintained that the evidence given in the trials against the accused revealed the inadequacy of the police investigation. Many areas of concern were addressed in a letter to the PCA in June 2000. In December 2002 the PCA informed the applicants' solicitors in writing that it had received the investigating officer's report and that the PCA was satisfied with the investigation which had been carried out into the complaints. A copy of the report (which was supported by 218 statements, 465 documents, 18 interviews with officers under investigation and 17 appendices) had been made available to the Crown Prosecution Service (the CPS). The solicitors were further informed that they would be notified if the CPS decided to bring criminal charges in the event of findings that any police officers had committed a criminal offence. The PCA's letter concluded:

"I regret that there may be yet further delay whilst these steps in dealing with your complaint are completed. The authority will consider the disciplinary aspects of the case only after any criminal issues have been decided".

[82] The court noted that the applicants complained of a breach of the positive obligations under article 2 to ensure the conduct of an effective independent investigation into the unlawful killing of Michael Menson. It observed that the applicants had not laid any blame on the authorities of the respondent state for the death of Michael Menson, nor had it been suggested that the authorities knew or ought of have known that he was at risk of physical violence at the hands of third parties but then failed to take appropriate measures to safeguard him against that risk. The applicants case was therefore to be distinguished from those involving the alleged use of lethal force either by agents of the state or by private parties with their collusion. It could also be distinguished from those cases where the factual circumstances imposed an obligation on the authorities to protect an individual's life, for example where they had assumed responsibility for his welfare or where they knew or they ought to have known that his life was at risk. The court continued:

"However the absence of any direct state responsibility for the death of Michael Menson does not exclude the applicability of article 2. By requiring a state to take appropriate steps to safeguard the lives of those within its jurisdiction, article 2(1) imposed a duty on that state to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. With reference to the facts of the incident case, the court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment (emphasis added). Where death results, as in Michael Menson's case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life. The court recalls that in its judgements in cases involving allegations that state agents were responsible for the death of an individual, it has qualified the scope of the above mentioned obligation as one of means, not of result. Thus, the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death, or the person or persons responsible will risk falling foul of this standard."

[83] The discussion emphasised the need for a prompt response at the authorities' own instance, and that where an attack is racially motivated it is particularly important that the investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society's condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.

[84] The court had regard to the fact that the police investigation ultimately led to the identification, arrest and punishment of the culprits. In addition a public inquest held shortly after the death resulted in a jury's verdict of unlawful killing. The official inquiry into the handling of the case in the early stages was critical of the way in which certain officers of the MPS reacted to the attack on Michael Menson. The evidence advanced before the coroner's jury and at the trial of the accused clearly indicated serious defects in the handling of the attack which were at odds with the requirements of an effective investigation. The applicants maintained that these defects were caused by racism within the MPS, in particular given the refusal of certain police officers to deal with an attack on a black victim with an open and independent mind as regards the cause of his injuries. The Strasbourg court decided that, in the context of article 2 and in the circumstances of this case it was not for it to pronounce on those claims, including the applicant's allegations of an institutional cover up of police misconduct and of harassment of them at various stages of the investigation. The court noted that the legal system had acted with reasonable expedition to enforce the criminal law, irrespective of the victim's racial origin. This was decisive when deciding whether the authorities complied with their positive and procedural obligations under article 2. Secondly the inquiry into the complaints was not yet completed and they had been forwarded to the CPS for consideration. In all the circumstances it was concluded that the applicants' complaint was "manifestly ill-founded".

[85] It can of course be noted that the enforcement of the criminal law had resulted in convictions, but in principle, where the death is at the hands of a third party or parties, compliance with article 2 does not depend upon whether a conviction has been obtained. In my judgment it would be a mistake to interpret the decision in Menson as supportive of the present petition. It does demonstrate that article 2's procedural obligations are engaged in a case such as the present, but, as the court has repeatedly emphasised, the obligations are of means, not result. 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. It can also be noted that in Menson the court said:

"Article 2 is primarily concerned with the assessment of a contracting state's compliance with its substantive and procedural obligations to protect the right to life. That article does not guarantee as such an applicant a right to a remedy in respect of any alleged defects occurring in the discharge of those obligations."

I consider that this passage is relevant to the petitioner's submissions in so far as they concerned alleged defects in the criminal investigation and prosecution concerning Dorothy Niven's death.

[86] In Brecknell v United Kingdom (2008) 46 EHRR 42, the court dealt with a case concerning allegations of collusion by the police in respect of certain murders, and of links between the police and paramilitary organisations responsible for the killings. It was held that there had been an article 2 violation because of the lack of independence of the investigation which had been carried out. Again the court stressed that when considering the requirements flowing from article 2, it had to be remembered that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility (paragraph 65). The court continued:

"The obligation comes into play, primarily, in the aftermath of a violent or suspicious death, and 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 the attribution of criminal responsibility. There is no absolute right, however, to obtain a prosecution or conviction and the fact that an investigation ends without concrete, or with only limited results is not indicative of any failings as such. The obligation is of means only. However, as in this case, it may be that some time later, information purportedly casting new light on the circumstances of the death comes into the public domain. The issue then arises whether, and in what form, the procedural obligation to investigate is revived."

The court stressed that the Convention provides for minimum standards. The positive obligations must not be interpreted in a way which imposes an impossible or disproportionate burden on the authorities. The above considerations are relevant in the present case, not least in the absence of any recent new information, let alone the emergence of anything implicating the state in Ms Niven's death. In Brecknell plausible allegations of police collusion in terrorist atrocities had come to light, therefore it was unsurprising that it was held that the state was bound to ensure an independent investigation into those claims. Previous investigation by the RUC was clearly insufficient. The court's comments in Brecknell should not be read without regard to the specific context in which they were made.

[87] Reference was also made to the decision in Öneryildiz v Turkey (2005) 41 EHRR 20. The applicant lived with his family beside a municipal household refuse tip. In April 1993 there was a methane explosion in the tip. A landside engulfed the applicant's house, killing his close relatives. Two local officials were convicted for negligence, although an officially commissioned expert report allocated responsibility much more widely. Regarding the duty to investigate, the court held that the case was equivalent to one where lethal force by the state killed a citizen. The true circumstances of the death were largely within the knowledge of the state authorities. For the various reason explained, the court concluded, unsurprisingly in the circumstances, that the domestic criminal justice system had not operated in response to the accident in a manner which secured the full accountability of state authorities for their role in the deaths, and had not constituted an effective implementation of the deterrent function of the domestic criminal law. It followed that there was a procedural violation of article 2.

[88] When interpreting this case it is important to bear in mind the context and the manifest failings in the investigations which gave rise to legitimate concerns of, in effect, a cover-up of the state's responsibility for what had happened. It would be wrong to interpret observations in the court's judgment in Öneryildiz as implying that article 2 requires investigations to continue until the circumstances of any alleged crime causing death are explained.

[89] In Angelova v Bulgaria (2008) 47 EHRR 7 the court dealt with a case which concerned the minimum standards applicable to "ordinary criminal procedures and investigations" into the suspicious death of a Roma victim. Very lengthy delays in the investigation meant that no-one was brought to trial over 11 years after the death, by which time any charges would be time-barred. There was no convincing explanation for the delays. The court concluded that there was a failure to investigate promptly and with the required vigour, especially considering the racial motives of the attack and the need to maintain the confidence of minorities in the ability of the authorities to protect them from racial violence. In effect the authorities seemed to have turned a blind eye to the case. Stress was again laid on the state's obligation not to undermine the deterrent effect of the criminal law. An investigation which failed in this important objective and thus undermined the purpose of article 2 would not be an effective investigation.

[90] Byrzykowski v Poland (2008) 46 EHRR 32 was a similar type of case, albeit in the context of overly prolonged judicial investigations and disciplinary proceedings concerning the death in hospital of a pregnant woman. Given the state's involvement in the matter and its wider responsibilities for the patients in its care, it was important to learn any appropriate lessons promptly, thus there had been a procedural violation of article 2. Silih v Slovenia, ECtHR, 28 June 2007 was a similar case. After 12 years, proceedings instituted to elucidate allegations of medical malpractice were still outstanding.

[91] The case of Taylor Family, Application No. 23412/94 was cited. The decision in that case is consistent with the Strasbourg court's general approach to article 2. It is an example of the court concluding that undoubted wider public interest issues did not require further investigations in order to comply with article 2. Rather they were matters for public and political debate, and fell outside the scope of the Convention.

[92] In R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461, the Court of Appeal considered a case where the deceased, a long term schizophrenic, was seen by a member of the public apparently preparing to jump off a bridge over a river in an attempt to commit suicide. The emergency services were summoned and he was brought to a hospital controlled by the second defendant, an NHS Trust. The hospital operated an emergency triage system for assessing the needs of patients, which prioritised those with mental health problems, and under which the deceased, having been identified as a suicide risk, should have been seen by a doctor within 10 minutes. He was initially seen by a nurse but was then left unattended to await a doctor. A further half hour had elapsed before a doctor came to see him, by which time he had absconded from the hospital. He made his way back to the river, into which he was seen to jump, and from which his body was in due course recovered. The court decided that the coroner's decision could be legitimately criticised in that he had failed to consider and investigate systemic failures at the hospital. I do not consider it necessary to go into this decision in any greater detail, other than to note in passing that at paragraph 38 the court said:

"For reasons which will become apparent later in this judgment, we are satisfied that article 2 is engaged in the sense that it gives rise to certain obligations on the part of the state whenever a person dies in circumstances which give reasonable grounds for thinking that the death may have resulted from a wrongful act of one of its agents."

As I indicated much earlier in this opinion, I suspect that it was similar thinking which prompted the passage in the Deputy Crown Agent's letter which has been the subject of particular criticism. Many of the decisions on article 2 draw a distinction between cases where there is state involvement in a death and those where there is no question of state accountability. In the latter case, general comments are sometimes made along the lines that article 2 is not engaged in that no heightened level of investigation or scrutiny is required. It is clear from the case law as a whole that the article's application is more general than such comments imply. For making similar remarks, the decision letter of 8 May 2008 can be criticised. However Mr O'Neill went further and insisted that this phraseology alone rendered the decision letter challengeable. I reject that submission. I consider it important to look beyond the form to the substance of the matter.

[93] The key issue before me is whether, in all the circumstances of this case, article 2 obliges the respondent to order a further inquiry into Ms Niven's death. For all the reasons which I have explained in the course of this opinion, I am of the view that there is nothing in article 2, nor in the jurisprudence cited to me, which justifies an affirmative answer to that question. The issue turns on whether, in article 2 terms, the investigations carried out to date can properly be described as effective. It would be understandable if some questioned whether investigations which have failed to explain what happened, and which have left a number of important questions unanswered, can properly be described as effective. The answer lies in the meaning for these purposes of the term "effective". The Strasbourg court has repeatedly emphasised that the procedural obligations imposed by article 2 are of means, not result. This is an awkward phrase, but it indicates that an investigation is to be assessed not by the outcome, but by whether it demonstrates that the state is respecting and fulfilling its obligations under the article. Thus in many cases, in my view including this one, a criminal investigation which is capable of identifying responsibility for a death will be sufficient, even if it fails to identify a culprit or the cause of death.

[94] Whether a particular investigation is or is not effective will depend on the full circumstances of the case. If, for example, a death occurs at the hands of the state, a private investigation by a government official will leave a reasonable person with a legitimate anxiety that the investigation is less than impartial and does not include the appropriate public involvement and scrutiny. Similarly, if a state body or officer may bear some indirect responsibility for what happened, or where it is apparent from the circumstances of a death that the state may be able to learn wider lessons for the future protection of human life, an inquiry focused only on immediate criminal responsibility may well be insufficient. And even for a death solely at the hands of a third party, should it be clear that the state's investigations have been wholly insufficient to meet the appropriate minimum standards, the court can intervene. I repeat, all of this relates to whether the form and nature of the inquiry is appropriate. Article 2 does not impose an obligation to explain all suspicious or unnatural deaths. That said, and whatever the circumstances, a refusal to investigate at all, or to postpone obviously necessary lines of inquiry for an unreasonable period, may well be a ground for legitimate complaint under article 2. Then it becomes plain that the investigation is not effective since it is not capable of achieving its purpose. Rather it reveals a state which is flouting its duty to respect and safeguard human life.

[95] In a case such as the present, the issue comes to be whether what has been done, or left undone, undermines the efficacy of the criminal law and indicates an unwillingness on the part of the state to shoulder its full responsibilities under article 2. As the Strasbourg court indicated in Silih v Slovenia, the procedural obligations under article 2 will not be satisfied if the protection afforded by the domestic law exists only in theory. It must operate effectively in practice, including promptly and without unnecessary delays.

[96] In my opinion there is nothing in the present case to suggest that there are gaps or deficiencies in the investigations to date such as would undermine the protections and prohibitions contained in the domestic law, nor question the state's willingness to investigate and prosecute in appropriate cases. The fact that there remain unanswered questions does not cast doubt on nor undermine the ability of the criminal justice system in Scotland to operate in a manner which is capable of identifying criminal liability and thereby enforcing the deterrent effect of the crimes of murder and culpable homicide. No doubt it will often be possible at the end of unsolved criminal investigations or unsuccessful prosecutions to look back and identify things which could have been done better. But the case law shows that much more is required before the state will be in violation of its obligations under article 2.

[97] The UK has laid down appropriate laws to deter unlawful killing. In respect of Ms Niven's death an appropriate machinery to enforce those laws was operated vigorously and in good faith according to the information then available to the Crown. There is no question of lip service, turning a blind eye, dragging heels, potential cover-up, etc. of the kind which has sometimes persuaded the Strasbourg court to uphold a complaint under article 2. Nor are there any wider public interest issues which demand further inquiry in order that necessary lessons may be learned for the better protection of human life in the future. Plainly when asked, it is the duty of government to reflect on whether further investigation is required, but it is not obliged to grant all such requests when unanswered questions remain. The state must protect human life by the creation and maintenance of an appropriate framework of laws, institutions and procedures dedicated to its preservation and respect. However the duty under article 2 does not extend to finding an explanation for all suspicious or unnatural deaths, however painful this may be to the family and friends of the deceased. The Convention and the Human Rights Act recognise a need for proportionality, pragmatism and realism in the context of finite resources and almost limitless good causes for their use. In my judgement, in the absence of any significant additional information or new suggested lines of inquiry, and after all that has happened, the state is not obliged under article 2 of ECHR, or otherwise, to order a further investigation into Dorothy Niven's death. It follows that the decision taken on 8 May 2008 did not involve any violation of article 2, assuming, which I do for present purposes, that it applies to Ms Niven's death.

[98] In these circumstances the issue of retrospectivity does not arise for decision, and for completeness I should record that the short submissions presented in support of what was called the common law case, did not persuade me to grant the petition. The application for judicial review is refused.