McQuillan, McGuigan and McKenna, Re Application for Judicial Review (Rev1) [2021] UKSC 55 (15 December 2021)
Citation:McQuillan, McGuigan and McKenna, Re Application for Judicial Review (Rev1) [2021] UKSC 55 (15 December 2021).
Subjects invoked: 86. 'Police Processes'.
Rule of thumb:When and how can you get the Police to re-open an investigation into an unsolved crime? Are you entitled to see the Police file to assess the work done by Police in an unsolved crime? For the first point, in order to re-open the investigation the 'genuine connection test' with new evidence has to be met. Regarding, the second question, yes, in an unsolved crime people are entitled to see the Police file and potentially seek a Judicial Review if it is believed the Police did not make rigorous enough enquiries to investigate the matter and bring truth & justice.
Background facts:
This case invoked the subject of Police process, particularly in relation to the legalities of 'unsolved crimes'.
This was basically 2 different cases regarding how the Northern Ireland Police (NI Police) should be run – (1) The McQuillan case, and (2) The McKenna and McGuigan and others case.
Case 1 – McQuillan/Smyth – A not so ‘random’ shooting? The first case related to the shooting of Ms Smyth in 1972, and it was raised by McQuillan who was a relative of Smyth. In 1972 Smyth was shot when she was a passenger in a car driving on the Glen Road in Belfast. This was originally put down as a ‘random’ and unfortunate accident. However, new documentation released by in 2011 suggested that this may not have been random, and may indeed have been a strategic assassination carried out by security forces. In 2014 the ‘legacy cases’ department of the NI Police opened an investigation into this. McQuillan, Smyth’s relative, wanted an independent panel to be created to investigate the shooting of Smyth, rather than the legacy department of NI Police. The NI Police refused to do this, and so the matter went to a Judicial Review.
Case 2 – McGuigan and McKenna – Hooded, interrogated and shot with the complicity of the UK Government? The second case concerned the hooding and torture of McKenna, McGuigan and 12 others in 1974, who are known as the ‘hooded men’. In 1974 McKenna, McGuigan and 12 others were taken by the British Army, hooded and subjected to 5 extreme torture techniques. This was originally deemed to be security forces by and large acting of their own volition out of control and not under orders. However, In 2014 UK Government papers emerged which suggested that the UK Government may have had an awareness about, and complicity in, these torture methods being carried out due to a memo sent by senior British Army personnel to them, casting doubt upon whether security forces were doing this to the hooded men under orders from the highest levels of Government. This was reported to the NI Police but the NI Police deemed that there was not sufficient weight of evidence in these papers for them to investigate the people in the UK Government over this. McKenna and McGuigan therefore raised a judicial review to try to force the NI Police to investigate the members of the UK Government of that time for complicity in this.None of the people who perpetrated these crimes on Smyth and the hooded men have ever been brought to justice. The family members of the victims believed that the measures being taken to look into these crimes were insufficient and would not lead to anyone ever being brought to justice for them, and they sought stronger investigation measures. These however were being refused to be implemented by police and the Northern Irish Government, and so the matter went to judicial review.
What the parties argued
Case 1: McQuillan argued that the legacy department of NI Police was not sufficiently independent to conduct the investigation into Ms Smyth’s murder. McQuillan argued that there was evidence of this department not conducting investigations into matters like this with sufficient rigour and integrity due to moral, political and friendship/association reasons. McQuillan concluded that the Secretary of Justice in NI should be ordered to create an independent commission to investigate it. The NI Police responded to this that they were inherently credible and independent. They argued that they were capable of conducting the investigation and they should be allowed to get on with doing so, and wait until they have the report of their investigation into the matter and then take things from there.
Case 2: Regarding the memo between the British Army and the UK Government, McKenna and McGuigan argued that this was direct documentary evidence from a credible source showing involvement of the UK Government in the shootings in Northern Ireland in 1974. They argued that when there is any direct evidence which is credible of potentially serious criminal activity the Police are legally obliged to investigate. They argued that the Court should order the NI Police to investigate the members of the UK Government involved in this. The NI Police argued that the principle of ‘genuine connection’ applied to this. This means that in order for someone to potentially be investigated for criminal activity there has to actually be evidence that they contributed to it in some way, not just that they were possibly vaguely aware of something related to it, especially when the evidence was so old. McQuillan and McGuigan, for both cases 1 and 2, argued that the failure by the Northern Irish Police and Government to hold an independent investigation into the public execution of Smyth, and the failure to investigate people who possibly knew about the torture of McGuigan and others, both extremely serious matters where the perpetrators had done this with no person ever being held responsible, constituted a violation of the Article 2 Right to Life and the Article 3 not to be subject to inhumane/degrading treatment.
Judgment:
The Court upheld the arguments of the NI Police in both matters. Case 1: In the Smyth shooting/murder case raised by McQuillan, the Court affirmed that the ‘Legacy cases’ department of the NI Police was inherently and independent credible department capable of carrying out the investigation. The Court did state that once the NI Police had investigated the matter, McQuillan did have a right to obtain the report from the investigation of the matter so that the efficacy of the investigation could be checked.
‘110. … In our view, the importance of such independence and impartiality where agents of the State are implicated in a death or alleged ill-treatment cannot be understated. The Strasbourg Court stated in Ramsahai (above), para 325, that “what is at stake here is nothing less than public confidence in the state’s monopoly on the use of force”. In Northern Ireland in the terrible years of the early 1970s the State did not have such a monopoly. On the information currently available to the court it is not established that a shot fired by a member of the security forces was the probable cause of Ms Smyth’s death; it is one of several possibilities. But that does not diminish the need for an investigation to be independent’, Lord Hodge
Case 2: In the McKenna/McGuigan case, the Court also affirmed that the ‘genuine connection’ principle applied to the documentation supposedly linking the UK Government to the 1974. The Court affirmed that at best this showed possibly a vague awareness of something related to the 1974 shootings, however, this documentation did not show clear knowledge or involvement in this, and it was also very old, meaning that the documentation did not show a genuine enough to actual criminal activity being carried out by the UK Government Ministers.
‘117. In view of our conclusion that the “critical date” for the purposes of application of the genuine connection test in the context of section 6(1) of the HRA is 2 October 2000, it must follow in the McQuillan case that the relevant public authorities are not subject to any article 2 investigative obligation under section 6(1). In Janowiec, para 144 (quoted above), the Grand Chamber made it clear that if the triggering event for an article 2 investigative obligation “lies outside the Court’s jurisdiction ratione temporis, the discovery of new material after the critical date may give rise to a fresh obligation to investigate [pursuant to the revival principle in Brecknell] only if either the ‘genuine connection’ test or the ‘Convention values’ test … has been met.” In other words, the revival of an article 2/3 investigative obligation pursuant to the principle in Brecknell is subject to either the genuine connection test or the Convention values test being satisfied in respect of the relevant trigger event (death or alleged ill-treatment, as the case may be) in the particular case. By analogy, the same approach applies in relation to section 6(1) of the HRA, with the “critical date” for that purpose being 2 October 2000. As we have explained, neither of those tests is satisfied in the McQuillan case, so there is no scope for application of the Brecknell principle in that case’, Lord Hodge.
The Court also did not accept arguments that the way the Police and Government were investigating the matter constituted a human rights violation. The Court affirmed that the matters were addressed, and not ignored, and this therefore did not constitute a human rights violation.
In short, in case 1, the NI Police were not ordered to set up a commission to investigate the Smyth shooting in 1972, and in case 2, the NI Police were not ordered to formally investigate the UK Government from the 1970’s for complicity in the 1974 torture. The torture/murder of Irish republican Roman-Catholics (the most serious of crimes) will essentially be forever left unsolved with no truth or justice in relation to them, and according to the UK Supreme Court, who overturned the Court of Appeal decision, there has been no breach of UK administrative law or of human rights by the NI Police or NI Government in this occurring.
Ratio-decidendi:
‘17. Summary and conclusions 256. For the reasons set out above, we have reached the following conclusions: (i) Applying the genuine connection test in relation to the death of Ms Smyth, we conclude that the PSNI was not under an obligation to investigate Ms Smyth’s death under article 2 of the Convention (paras 169-178 above). (ii) As the Brecknell test is not satisfied in relation to the Hooded Men, the PSNI was not under an obligation to investigate the authorisation of the ill-treatment of the Hooded Men under article 3 of the Convention (paras 119-132 above). (iii) If article 2 of the Convention had applied, the Court of Appeal would have been entitled to conclude that the then 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 to her family and the public, and when faced with the judicial review challenge, the court, how he proposed to secure the practical independence of that investigation (paras 201-212). (iv) If article 3 of the Convention had applied, the Court of Appeal erred in concluding that an enquiry by the PSNI into the ill-treatment of Mr McGuigan and Mr McKenna would lack practical independence (paras 213-214). (v) 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 (paras 215-217). (vi) The Chief Constable did not create a legitimate expectation that the PSNI would undertake an investigation of the persons responsible for authorising the ill-treatment of Mr McGuigan and Mr McKenna (paras 218-222). (vii) The decision taken on 17 October 2014 not to investigate the allegation in the Rees Memo was based on a seriously flawed report, was therefore irrational, and falls to be quashed (paras 223-252). 257. We would therefore allow the appeals by the Chief Constable for Northern Ireland, the Secretary of State for Northern Ireland and the Northern Ireland Department of Justice, recall the orders of the courts below, uphold the decision of Maguire J and the majority of the Court of Appeal to quash the decision taken on 17 October 2014, but otherwise dismiss the applications for judicial review’. Lord Hodge at 256-257
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.