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

For an investigative obligation under article 2 or 3 of the Convention to arise under the Human Rights Act 1998 in respect of an event before 2 October 2000, the event must satisfy either the genuine connection test or the exceptional Convention values test. The discovery of new evidence cannot avoid that temporal requirement.

A pre-completion challenge to an investigation’s practical independence should ordinarily succeed only where no arrangements that might sensibly be adopted could give it the capacity to be effective. The apparent-bias test for adjudicators does not govern that question. A police decision may nevertheless be irrational where a critical step in the reasoning is irrational, even though the same outcome could rationally have been reached on other grounds.

These conjoined appeals concerned a 1972 shooting and the RUC’s use in 1971 of five interrogation techniques on the Hooded Men. The relatives of Jean Smyth sought an article 2-compliant investigation into her death. Francis McGuigan and Mary McKenna sought an article 3-compliant investigation into the alleged governmental authorisation of the five techniques.

The Court of Appeal in Northern Ireland held in Ms McQuillan’s case that an article 2 duty arose and that the PSNI had not demonstrated the practical independence of its proposed investigation: [2019] NICA 13. In the Hooded Men proceedings it held that no article 3 duty arose, but upheld the quashing of the PSNI’s decision of 17 October 2014 and found a legitimate expectation of an investigation: [2019] NICA 46.

The principal issues were the temporal scope of the investigative obligations under the Human Rights Act 1998, the requirements for an independent investigation, and the domestic-law challenges to the PSNI’s decision.

Appeals allowed unanimously. Lord Hodge, Lord Lloyd-Jones, Lord Sales and Lord Leggatt delivered the joint judgment, with which Lord Kitchin, Lord Hamblen and Lord Burrows agreed.

1. The critical date for applying the genuine connection test to a claim under section 6(1) of the Human Rights Act 1998 is 2 October 2000. Convention rights created by the Act are distinct domestic rights. The mirror principle does not override Parliament’s choice that the Act should generally lack retrospective effect. An extension of the ordinary ten-year temporal limit by up to two years may be permissible where the original investigation was seriously deficient and the bulk of the investigative effort occurred after the critical date.

2. Neither case satisfied the genuine connection test. Ms Smyth’s death occurred 28 years before the critical date, although the investigation of possible military involvement satisfied the test’s procedural limb. The Hooded Men’s treatment occurred 29 years before the critical date, and the centre of gravity of the relevant inquiries lay in the 1970s. The Brecknell revival principle remained subject to the genuine connection or Convention values test.

3. The archive material concerning the Hooded Men did not meet the Brecknell threshold. It added detail, including the identities of ministers, but did not significantly alter what was known by 1978 about high-level and ministerial authorisation. It was therefore not sufficiently weighty and compelling to require a new investigation. The court left unresolved whether the Convention values test was satisfied.

4. An article 2 or 3 investigation requires sufficient institutional, hierarchical and practical independence, assessed concretely as part of its overall effectiveness. Absolute independence is unnecessary. There is a strong presumption against deciding a challenge to practical independence before the investigation concludes. Early intervention is justified only where the arrangements envisaged, together with any sensible adjustments, could not give the investigation the capacity to be effective. The apparent-bias test in Porter v Magill was not an appropriate substitute.

5. Had article 2 applied, the proposed investigation into Ms Smyth’s death would have been ineffective because the Chief Constable failed, in the particular circumstances, to explain how practical independence would be secured. That conclusion could not be transferred to the Hooded Men case. The PSNI was institutionally capable of conducting an effective investigation.

6. Neither the common law nor section 32 of the Police (Northern Ireland) Act 2000 imposed an investigative obligation equivalent to articles 2 and 3. The Chief Constable’s statement created no legitimate expectation beyond performance of the ordinary statutory duty.

7. The decision of 17 October 2014 was nevertheless irrational. Its supporting report asked the wrong question by concentrating on express use of the word “torture” and displayed a partisan, evidentially unsupported approach. That decision remained quashed; the applications for judicial review were otherwise dismissed.

1. United Kingdom Supreme Court: Allowed the public authorities’ appeals, recalled the orders below, preserved the quashing of the PSNI decision of 17 October 2014, and otherwise dismissed the judicial review applications: [2021] UKSC 55.
2. Court of Appeal in Northern Ireland—McGuigan and McKenna: Held that no article 3 investigative obligation arose, but upheld the quashing of the PSNI decision and, by a majority, found a legitimate expectation: [2019] NICA 46; [2021] NI 15.
3. Court of Appeal in Northern Ireland—McQuillan: Allowed Ms McQuillan’s appeal, held that an article 2 investigative obligation arose, and found that the PSNI had not demonstrated the proposed investigation’s practical independence: [2019] NICA 13; [2020] NI 583.
4. High Court of Justice in Northern Ireland: Maguire J ultimately rejected the article 2 and article 3 temporal claims and any equivalent common-law duty. In the Hooded Men proceedings he quashed the PSNI decision of 17 October 2014 as irrational.