In re McQuillan

This appeal addressed (1) whether the Human Rights Act 1998 (section 6(1)) requires a state‑compliant investigation under article 2 or article 3 of the European Convention on Human Rights where the death or ill‑treatment predated the HRA, and (2) the tests for independence of legacy investigations carried out by the Police Service of Northern Ireland (PSNI). The Supreme Court held that for the purposes of applying the Strasbourg “genuine connection” test by analogy under the HRA the critical date is 2 October 2000 and that the Brecknell revival principle (new evidence reviving an investigative obligation) is subject to either the genuine connection test or the Convention‑values test. The court applied Janowiec and Tunç to limit temporal reach, explained the two elements of investigatory independence (lack of hierarchical/institutional connection and practical independence), and endorsed the general rule that a court should usually await the outcome of an investigation before determining its practical independence unless the investigation plainly lacks capacity to be effective.

Applying these principles, the court concluded that (a) the genuine connection test was not satisfied in respect of the Hooded Men claims and that the Brecknell revival test did not require an article 3 investigation on the new material; (b) the article 2 investigative obligation under the HRA did not apply to the death of Jean Smyth because the genuine connection test was not met, although shortcomings in the PSNI’s engagement justified criticism of the procedural steps proposed for investigation in that case; and (c) the PSNI decision of 17 October 2014 declining further inquiry into alleged ministerial authorisation was irrational and was quashed. The court also held there was no separate common‑law investigatory obligation and that section 32 Police (Northern Ireland) Act 2000 did not impose the article 2/3 style independence obligation.

This litigation comprised two related sets of legacy claims arising from events in Northern Ireland in 1971‑72: (i) an application by Margaret McQuillan (sister of Jean Smyth) for judicial review challenging the adequacy and independence of investigations into Ms Smyth’s 1972 killing and seeking a declaration that the PSNI could not conduct an article 2 compliant investigation; and (ii) applications by Francis McGuigan and Mary McKenna challenging the PSNI’s decision of 17 October 2014 not to investigate alleged authorisation by UK Ministers of the so‑called five interrogation techniques used on the Hooded Men in August 1971, and seeking article 3 compliant investigations.

The procedural history ran from initial RUC inquiries and a 1972 inquest, through later reviews by the HET (2006–08) and transfer of legacy work to the PSNI Legacy Investigation Branch (LIB), to judicial review in the High Court (Maguire J), appeals to the Court of Appeal in Northern Ireland ([2019] NICA 13; [2019] NICA 46), and finally to this appeal to the Supreme Court. The court heard argument on the application of Strasbourg jurisprudence (notably Brecknell, Silih, Janowiec and Tunç) and on the interpretation and temporal scope of the Human Rights Act 1998.

Issues framed by the court included:

• Whether the HRA (section 6(1)) gives rise to an investigatory obligation for events that predate its coming into force and, if so, what the relevant trigger date is and how the Strasbourg “genuine connection” and “Convention values” tests apply domestically;
• Whether new material (the Brecknell revival principle) can revive an investigative obligation under article 2 or 3 and, if so, subject to what limits;
• The content of the Convention requirement of investigatory independence and the tests to be applied to PSNI legacy investigations;
• Whether any parallel obligation exists at common law or under section 32 Police (Northern Ireland) Act 2000; and whether any legitimate expectation arose from statements by the Chief Constable;
• Whether the PSNI decision of 17 October 2014 not to pursue further inquiry into alleged ministerial authorisation was irrational.

Reasoning in brief:

• The court held that for domestic claims under the HRA the appropriate critical date for the genuine connection test is 2 October 2000 (the HRA commencement). That preserves the non‑retroactivity principle of the HRA while allowing a limited, analogous application of Silih/Janowiec where appropriate.
• The Brecknell revival principle can revive an investigatory obligation when material newly emerges, but, by analogy under the HRA, revival is permissible only where either the genuine connection test or the Convention‑values test is met. The court applied Janowiec to confine the temporal reach (ten years as a guide, with only modest extensions in exceptional cases) and rejected the claim that the HRA should be read so as to make the Convention critical date (1966) decisive domestically.
• On independence the court adopted the Grand Chamber’s approach in Tunç: independence requires both absence of unacceptable hierarchical/institutional connection and practical independence; absolute independence is not required; and assessment of practical independence is generally post‑hoc, once an investigation has run its course, unless it is clear from the outset that the investigation lacks the capacity to be effective.
• Applying those principles, the court concluded the genuine connection test failed for both the Hooded Men and Ms Smyth claims (the events were too remote from 2 October 2000 and the bulk of investigatory activity lay in the 1970s). It therefore rejected the claimants’ article 2/3 HRA complaints except that the court upheld the quashing of the PSNI decision of 17 October 2014 as irrational because the internal HET research was unreasonably narrow and tainted by unfair partisan assumptions.
• The court confirmed there was no separate common‑law investigatory obligation and that section 32 did not impose an article 2/3 style duty of independence; and it rejected the pleaded legitimate‑expectation claim.

The court therefore allowed the appeals of the public‑authority appellants in relation to the bulk of the claims, but confirmed quashing of the PSNI decision of 17 October 2014 and required fresh consideration.

The appeals by the Chief Constable of the PSNI, the Secretary of State for Northern Ireland and the Northern Ireland Department of Justice were allowed overall. The Supreme Court held that (i) for claims under the Human Rights Act 1998 the relevant "critical date" for the genuine connection test is 2 October 2000 and that revival under Brecknell is subject to either the genuine connection or Convention‑values tests; (ii) neither test was satisfied in respect of the Hooded Men or the death of Jean Smyth so that HRA article 2/3 investigatory obligations did not arise in the cases except as to procedural defects; (iii) there is no equivalent common‑law investigatory duty nor does section 32 Police (Northern Ireland) Act 2000 impose an article 2/3 style independence duty; but (iv) the PSNI decision of 17 October 2014 not to investigate alleged ministerial authorisation was irrationally based on a flawed report and was quashed, requiring fresh consideration.

Applications for judicial review were heard by Maguire J (two judgments: 3 March 2017 and 13 April 2018). Appeals from Maguire J were determined by the Court of Appeal in Northern Ireland: [2019] NICA 13 and [2019] NICA 46. The defendants (Chief Constable of the PSNI, Secretary of State for Northern Ireland and Northern Ireland Department of Justice) appealed to the Supreme Court, which delivered judgment on 15 December 2021 ([2021] UKSC 55).