McQuillan, McGuigan and McKenna, Re Application for Judicial Review [2021] UKSC 55

Appeals concerning deaths and ill-treatment during the Troubles in Northern Ireland. The Court examined whether the Human Rights Act 1998 imposed investigative obligations under Articles 2 and 3 ECHR for events predating its commencement, determining that the critical date for the genuine connection test is 2 October 2000. The Court found no Convention investigative obligation arose but quashed one PSNI decision as irrational.

Facts

These appeals arose from two tragic episodes during the Troubles in Northern Ireland. The first concerned Jean Smyth, who was shot and killed on 8 June 1972. Her sister, Margaret McQuillan, sought judicial review challenging the failure to conduct an effective investigation into her death, particularly after military logs discovered in 2014 suggested possible military involvement. The second case involved the Hooded Men, including Francis McGuigan and Séan McKenna (father of Mary McKenna), who in August 1971 were subjected to the five interrogation techniques (wall-standing, hooding, subjection to noise, sleep deprivation, and food/drink deprivation) by the RUC. Following an RTÉ documentary in 2014 and the release of archived government documents, Mr McGuigan and Ms McKenna challenged the PSNI’s decision that no evidence warranted investigation into ministerial authorisation of torture.

Issues

Principal Issues

The appeals raised two principal human rights questions: first, whether the domestic investigative obligation under Articles 2 and 3 of the Convention arising from the Human Rights Act 1998 requires a genuine connection, including temporal proximity, between the death or ill-treatment and the HRA’s commencement on 2 October 2000; second, the tests for assessing the independence of PSNI investigations into Troubles-related deaths and ill-treatment.

Additional Issues

Further issues included whether the Brecknell test for revival of investigative obligations was satisfied, whether parallel common law duties existed, whether legitimate expectations arose, and whether the PSNI’s decision of 17 October 2014 was irrational.

Judgment

The Critical Date for the Genuine Connection Test

The Supreme Court confirmed that for claims under section 6(1) of the HRA, the critical date for applying the genuine connection test from Silih and Janowiec is 2 October 2000, not 14 January 1966 when the UK accepted the right of individual petition.

The genuine connection test was articulated by the Strasbourg Court in Silih to specify how the principle of non-retroactivity of the Convention… should be applied in the context of the article 2 investigative obligation where the triggering death occurred before the entry into force of the Convention with respect to the state party.

The Court emphasised that Convention rights under the HRA are distinct domestic rights created by statute, not identical to Convention rights under international law. As Lord Nicholls explained in In re McKerr:

These two sets of rights now exist side by side. But there are significant differences between them… The extent of these rights, created as they were by the 1998 Act, depends upon the proper interpretation of that Act.

Application of the Genuine Connection Test

Neither case satisfied the genuine connection test. Ms Smyth’s death occurred in 1972, 28 years before the critical date, far exceeding the ten-year norm. The Hooded Men’s ill-treatment in 1971 was 29 years before the critical date, and extensive investigations had already occurred in the 1970s.

The Brecknell Test

For the Hooded Men case, the Court found the Brecknell test for revival of investigative obligations was not satisfied. The new material did not significantly add to what was known in 1978:

By 1978, as a result of the Compton Enquiry, the Parker Committee Report, the debates in Parliament, the investigations by the European Commission and the hearings before the [Strasbourg Court]… there was a compelling case for the investigation of those who authorised and implemented the unlawful use of the five techniques with a view to prosecution for any criminal offences disclosed. That investigation did not take place because of a policy decision made within the UK Government. All of that was known.

Independence of Investigations

The Court clarified the approach to assessing investigative independence under Articles 2 and 3, distinguishing it from the Porter v Magill apparent bias test applicable to adjudicative bodies. Citing Tunç v Turkey, the Court stated:

The Court considers it appropriate to specify that compliance with the procedural requirement of article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family and the independence of the investigation. These elements are inter-related and each of them, taken separately, does not amount to an end in itself.

Investigations should generally be allowed to proceed to conclusion before their effectiveness is assessed, unless it can be shown the arrangements could not have capacity to be effective.

The PSNI Decision of 17 October 2014

The Court upheld the quashing of the PSNI’s decision not to investigate further as irrational. The investigating officer had addressed the wrong question by focusing on whether documents explicitly used the word torture rather than whether ministers had authorised conduct constituting torture. The Court found:

To conclude that, because he had not come across other documents which described the use of the five techniques as torture, it was abundantly clear that the use of torture was never authorised at any level and that there is absolutely no documentation which suggests that it was was jejune. Whether torture was authorised could not on any rational view depend on whether the word torture was used.

Implications

This judgment provides important clarification on the temporal reach of the HRA’s investigative obligations. It confirms that for domestic law purposes, the critical date is 2 October 2000, significantly limiting the scope of Convention-compliant investigation duties for historical events. The Court’s approach to assessing investigative independence, emphasising concrete examination of investigations in their entirety rather than abstract assessment, provides guidance for future challenges. The decision also demonstrates that while police have broad discretion in criminal investigations, decisions based on fundamentally flawed reasoning remain susceptible to judicial review on grounds of irrationality.

Verdict: The appeals by the Chief Constable for Northern Ireland, the Secretary of State for Northern Ireland and the Northern Ireland Department of Justice were allowed. The orders of the courts below were recalled. The decision of Maguire J and the majority of the Court of Appeal to quash the PSNI decision taken on 17 October 2014 was upheld, but the applications for judicial review were otherwise dismissed.

Source: McQuillan, McGuigan and McKenna, Re Application for Judicial Review [2021] UKSC 55