UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

On appeals from: [2019] NICA 13; [2019] NICA 46

Background

These appeals from the Court of Appeal in Northern Ireland concerned events which occurred in 1971 and 1972 during “the Troubles”. They concern the circumstances in which there is an obligation on the UK Government to investigate a death or allegation of torture or inhuman or degrading treatment under Articles 2 and 3 of the European Convention on Human Rights and the Human Rights Act 1999, and how to assess the independence of such investigations.

One appeal relates to the shooting of Ms Jean Smyth, who was fatally wounded by a bullet striking her head while she was a passenger in a car in Belfast on 8 June 1972 (the “McQuillan case”). Following the later discovery of military logs suggesting the possibility that the fatal shot was fired by a member of the British Army’s Military Reaction Force, the Chief Constable of the Police Service of Northern Ireland (‘The PSNI’) proposed to conduct a further investigation into Ms Smyth’s death. Before the proposed further investigation took place, Margaret McQuillan, Ms Smyth’s sister, issued judicial review proceedings seeking a declaration that the LIB was insufficiently independent to conduct the proposed further investigation of Ms Smyth’s death, in contravention of Article 2 of the Convention.

The other appeal (the “Hooded Men case”) relates to the ill-treatment of people who were detained by the security forces for interrogation in August 1971 by the Royal Ulster Constabulary. Fourteen men, who have become known as the Hooded Men and who included Francis McGuigan and Séan McKenna, were subjected to this treatment. Ireland brought an inter-state application to the European Commission of Human Rights and subsequently to the European Court of Human Rights against the UK regarding the treatment of the Hooded Men. In Ireland v United Kingdom (1979-80) 2 EHRR 25, the ECtHR determined that the Hooded Men’s treatment constituted inhuman and degrading treatment (but not torture) in breach of Article 3 of the Convention.

In 2014, RTÈ broadcast a documentary about the Hooded Men that referred to documents which, RTÈ said, were newly discovered and had not been before the Commission or ECtHR. Following the documentary, the PSNI concluded that there was not sufficient evidence to warrant a further investigation into the allegation. Separately, the Government of Ireland also made an application to the ECtHR for revision of its 1978 judgment, requesting that the finding of inhuman or degrading treatment be substituted by one of torture. The ECtHR dismissed the request. Mr McGuigan and the daughter of the late Séan McKenna then applied for judicial review of the PSNI’s decision.

HELD – The Supreme Court allowed the appeals by the Chief Constable for Northern Ireland, the Secretary of State for Northern Ireland and the Northern Ireland Department of Justice, upheld the decision of the Court of Appeal to quash the decision taken by the PSNI in relation to the Hooded Men case, but otherwise dismissed the applications for judicial review.

The first issue in both appeals concerned the temporal effect of the Article 2 and 3 rights in the Convention and under the HRA.

The Supreme Court considered and applied the test laid down in Brecknell v United Kingdom (2008) 46 EHRR 42, which determines whether the coming to light of new evidence might revive the investigative obligation under Article 2. In the McQuillan case it was common ground that the information in the military logs was sufficient to trigger a fresh investigative obligation. In the Hooded Men case, the Court held that the Brecknell test was not satisfied because the new material did not add significantly to the state of knowledge in 1978 or alter its substance.

The Court analysed the “genuine connection” test laid down in Janowiec, which addresses the situation where new evidence comes to light regarding a death which occurred before the relevant contracting state entered into the Convention or in relation to a claim by an individual, when that state recognised a right of individual petition to the ECtHR, if later. The Court concluded that, in the context of the HRA, the critical date for the application of the test was the date of the entry into force of the HRA on 2 October 2000. Applying the test, the Court concluded that it was not satisfied in either the McQuillan case or the Hooded Men case..

The Court held that, if Articles 2 and 3 had applied, the Court of Appeal in Northern Ireland would have been entitled to conclude that the proposed investigation into Ms Smyth’s death would not have been effective in the particular circumstances of that case because the Chief Constable of the PSNI had failed to explain how he proposed to secure the practical independence of that investigation. However, the Court of Appeal in Northern Ireland erred in concluding that an enquiry by the PSNI into the ill-treatment of Mr McGuigan and Mr McKenna would lack practical independence.

The Court also concluded that the PSNI was not under an obligation at common law or under section 32 of the Police (Northern Ireland) Act 2000 equivalent to the obligations in Articles 2 and 3 of the Convention. Furthermore, the Chief Constable did not create a legitimate expectation that the PSNI would undertake an investigation.

Finally, the Court found that the PSNI’s decision not to investigate further the allegation in the RTÈ documentary was based on a seriously flawed report, was therefore irrational, and fell to be quashed.

For a PDF of the judgment, please see: Judgment (PDF)

For the Press Summary, please see: Press summary (HTML version)

For an online version of the judgment, see: Judgment on BAILII (HTML version)