Re McQuillan's Application for Judicial Review

The Supreme Court has today given judgment in an appeal which raises important issues regarding the obligations under Articles 2 and 3 of the European Convention on Human Rights to investigate a death or allegation of torture.

These appeals, brought by the Chief Constable of the Police Service of Northern Ireland (“PSNI”), the Secretary of State for Northern Ireland and the Northern Ireland Department of Justice, arose from events which occurred in Northern Ireland during “the Troubles”.

The first appeal related to the tragic death by shooting of Ms Jean Smyth on 8 June 1972. A police investigation concluded that her death had been a random killing. The discovery of military logs in 2014 raised the possibility that the fatal shot had been fired by a member of the army. The evidence was passed to the PSNI, which decided that its legacy investigation branch would review the death. Ms Smyth’s sister, Margaret McQuillan, sought judicial review of the failure to ensure a prompt, independent, and effective investigation. She also sought a declaration that the Chief Constable of the PSNI was insufficiently independent to conduct such an investigation.

The second and third appeals related to the ill-treatment by the Royal Ulster Constabulary in August 1971 of people who were detained by the security forces for interrogation. Fourteen men, known as the hooded men, and who included Francis McGuigan and Séan McKenna, were subjected to this treatment. In 2003, archive documents regarding the interrogation techniques were released. The PSNI decided in 2014 that this material was not sufficient to warrant further investigation under Articles 2 and 3 of the European Convention on Human Rights the allegation that the UK Government authorised and used torture in Northern Ireland. Mr McGuigan and Mary McKenna sought judicial review of the continuing failure to order or ensure a full, independent and effective investigation.

The case raised a number of issues, including:

1. Do the domestic obligations on the UK Government to investigate death and allegations of torture or inhuman or degrading treatment under Articles 2 and 3 of the Convention apply to events which occurred prior to the commencement of the Human Rights Act 1998?
2. Did the new evidence relating to hooded men revive the investigative obligation under Article 2 or 3 of the Convention?
3. How should courts assess the independence of investigations carried out by the PSNI into deaths in the Troubles and the ill-treatment of the hooded men?

On the first issue, the Supreme Court held that the Article 2/3 investigative obligation would only arise under domestic law if there was a “genuine connection” (including a close temporal connection) between the death or ill-treatment and the commencement the Human Rights Act 1998 on 2 October 2000 (§168). Applying that test, the Supreme Court concluded that the PSNI was not under an obligation to investigate Ms Smyth’s death under article 2 of the Convention (§178).

On the second issue, the Strasbourg case-law (the Brecknell test) had established that the Article 2/3 investigative obligation could revive after an investigation had closed if new evidence came to light, provided that evidence was “sufficiently weighty and compelling to warrant a new round of proceedings” (§§115, 124). Applying those principles, the Supreme Court concluded that the new material relating to the hooded men was not sufficient to require a fresh investigation (§128). Accordingly, the PSNI was not under an obligation to investigate the ill-treatment of the hooded men under Article 3 of the Convention (§132).

On the third issue, the Supreme Court held that, as a general rule, courts should await the outcome of an investigation before ruling on its effectiveness, provided the investigation has the capacity to fulfil the procedural requirement of independence. There was therefore a strong presumption against a judicial review application before the conclusion of an investigation unless there was some exceptional circumstance (§200). Nonetheless, the questions of effectiveness and independence must be assessed by reference to the particular circumstances of each case (§208). 

Having found that neither Article 2 nor 3 applied, 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.

The judgments are available here:

In the matter of an application by Margaret McQuillan for Judicial Review (Nos 1, 2 and 3)

In the matter of an application by Francis McGuigan for Judicial Review (Nos 1, 2 and 3)

In the matter of an application by Mary McKenna for Judicial Review (Nos 1 and 2)

Sir James Eadie QC and Jason Pobjoy acted for the Secretary of State for Northern Ireland.