In the matter of an application by Francis McGuigan for Judicial Review (Northern Ireland) No.3

Michaelmas Term

[2021] UKSC 55
On appeals from: [2019] NICA 13

and [2019] NICA 46

Chief Constable of the Police Service of Northern Ireland

Tony McGleenan QC Paul McLaughlin QC

Laura Curran

(Instructed by Crown Solicitor’s Office (Belfast))

Secretary of State for Northern Ireland
Sir James Eadie QC
Jason Pobjoy
Ben Thompson

(Instructed by Crown Solicitor’s Office (Belfast))

Department of Justice

Peter Coll QC Philip McAteer

(Instructed by Departmental Solicitor’s Office (Belfast))

Margaret McQuillan

Hugh Southey QC Blinne Ní Ghrálaigh

(Instructed by Kinnear & Co Solicitors (Belfast))

Francis McGuigan Hugh Southey QC Adam Straw QC

Blinne Ní Ghrálaigh

(Instructed by Phoenix Law (Belfast))

Mary McKenna
Karen Quinlivan QC
Professor Gordon Anthony

(Instructed by Committee on the Administration of Justice (Belfast))

Intervener (Amnesty International (UK))
Monye Anyadike-Danes QC
Jude Bunting
(Instructed by Phoenix Law (Belfast))

Margaret McQuillan (Nos 1, 2 and 3)

Appellants:

(1)	Chief Constable of the Police Service of Northern Ireland
(2)	Secretary of State for Northern Ireland
(3)	Department of Justice

Respondent:

(1)	Margaret McQuillan

Francis McGuigan (Nos 1, 2 and 3) and Mary McKenna (Nos 1 and 2)

Appellants/Cross-Respondents:

(1)	Chief Constable of the Police Service of Northern Ireland
(2)	Department of Justice

Respondents/Cross-Appellants:

(1)	Francis McGuigan
(2)	Mary McKenna

Cross-Respondent:

(1)	Secretary of State for Northern Ireland

LORD HODGE, LORD LLOYD-JONES, LORD SALES AND LORD LEGGATT: (with whom
Lord Kitchin, Lord Hamblen and Lord Burrows agree)

1. These appeals from the Court of Appeal in Northern Ireland are concerned with

distressing events which occurred in the province in 1971 and 1972 at a particularly
horrible and murderous period of “the Troubles”.

(i)         The factual background to Ms McQuillan’s application for judicial review

(paras 6-32).

(ii) The arrangements made to investigate deaths and ill-treatment arising during the Troubles (paras 33-51).

(iii)       An overview of the Convention issues raised in these appeals (paras 52-

54).  

(iv) The judgments of the courts below in Ms McQuillan’s application for judicial review (paras 55-71).

(v) The factual background to the application for judicial review by Mr McGuigan and Ms McKenna (paras 72-100).

(vi) The judgments of the courts below in the applications for judicial review by Mr McGuigan and Ms McKenna (paras 101-108).

(vii)      The obligation to investigate under articles 2 and 3 of the Convention

(paras 109-111).

(viii) The trigger for a further investigation: Brecknell v United Kingdom (2008) 46 EHRR 42 (paras 112-132).

(ix) The genuine connection and Convention values tests in the jurisprudence

of the European Court of Human Rights (“the Strasbourg Court”) (paras 133-
168).

(x) Whether there is an obligation under article 2 or article 3 to investigate

the death of Ms Smyth and the authorisation of the treatment of the Hooded
Men (paras 169-192).

(xi) The Convention requirements for an independent investigation under articles 2 and 3 (paras 193-200).

(xii) Whether an investigation by the PSNI into Ms Smyth’s death would be an

independent and effective investigation and whether any findings on that
question can be read across into any investigation relating to the Hooded Men
(paras 201-214).

(xiii)     Other domestic law challenges: (i) Whether there is an obligation of

investigation at common law or under section 32 of the Police (Northern expectation of an investigation into the persons responsible for authorising the treatment of Mr McGuigan and Mr McKenna, (iii) whether the decision of the PSNI on 17 October 2014 not to investigate further was irrational and should be quashed (paras 215-252).

(xiv)     The question of delay (paras 253-255).

(xv)      Summary and conclusions (paras 256-257).

1.          The factual background to Ms McQuillan’s application for judicial review

(i) The circumstances of Ms Smyth’s death

6. In 1972, Jean Smyth was 24 years old. She was estranged from her husband and living with her daughter at her parents’ home in Tardree Park, West Belfast. On the evening of 8 June 1972, she went for a drink with a work colleague and friend, John Carlin. Mr Carlin collected her in his car, and they went to a pub on the Glen Road, the

Glenowen Inn, where they met up with some other work colleagues.

7.          At the end of the night, Mr Carlin offered one of those colleagues a lift home to

the Lenadoon Estate, from where he drove back onto the Glen Road. Ms Smyth was sitting in the front passenger seat. At approximately 11.30pm, Mr Carlin thought he heard a noise which sounded like a tyre bursting and he got out of the car to look
around. When he returned to the car, he found Ms Smyth lying in a prone position in

the car, having been shot in the head.

The initial RUC investigation

12. Following Ms Smyth’s death, the RUC opened a criminal investigation. Witness

statements were taken from Mr Carlin, Mr Brown, Mr Campbell, Mr Desmond Smyth
(Ms Smyth’s husband who identified her body) and a number of police witnesses.

13.        The police statements included a number of statements from Scenes of Crime

officers (“SOCO”), who had examined Mr Carlin’s car in the grounds of the RVH and Mr Carlin’s car was again examined at Springfield Road police station. The SOCO statements recorded the opinion that Ms Smyth was killed by a bullet which entered the car through the rear off-side window and travelled at an angle towards the front passenger seat, striking Ms Smyth on the head. The SOCO statements further recorded that no other holes or bullet strike marks were found on the car. A number of photos of Mr Carlin’s car were before the lower courts. Maguire J stated that they tended to support the description of the damage in the SOCO statements. This is contested by Ms McQuillan and other family members who believe that “the car was bullet ridden”.

14.        On 9 June 1972, a post-mortem of Ms Smyth’s body was carried out by Dr

Carson, Assistant State Pathologist. The lower court judgments record that it did not appear that the report from the post-mortem was available.

15. The RUC investigation at the time considered paramilitary use of firearms but did not consider military involvement.

The inquest

16. An inquest into the death of Ms Smyth was held on 9 November 1972 and an open verdict was recorded.

The Belfast Telegraph article

17. On 22 October 1973 an article appeared in the Belfast Telegraph under the

a youth at the scene shouted that it was the UVF who had been shooting. The
journalist considered this to be unlikely. A further suggestion was that an undercover
unit of the British Army, the Military Reaction Force (“MRF”) had been involved. The
journalist considered this theory “to hold more water”, taking into account an incident
which occurred in the same general location around two weeks after Ms Smyth’s
death. Members of the MRF had shot and seriously injured four men on the Glen Road.

headline “Was Jean Smyth shot by Mistake?”. The article referred to a suggestion that course of his trial, the sergeant had, according to the article, revealed that the MRF had been in operation in the area around the time of Ms Smyth’s death. The journalist further suggested that it was likely that Ms Smyth had been shot by mistake, stating (without providing any source) that “it would appear that a unit of the Provisional IRA fired on the car thinking it was army personnel”.

The 1975 intelligence report

18.        In 1975, it appeared that the RUC received what is described as “an intelligence

report” which touched upon Ms Smyth’s death. The source of the information was supposedly been conducting vigilante patrols in area when shots were fired from a car on the Glen Road. One of the men fired at a car on the Glen Road, killing the woman occupant. The male occupant of the car allegedly ran off. The two men, it was suggested, had stopped a taxi, ordering the driver to take the woman to hospital. Maguire J stated that there was no sign that this report led to any further action on the part of the RUC.
unclear, but what was put forward in the report was that two named members of the

(iii)       The HET review (2006-2008)

19. PSNI’s Historical Enquiries Team (“HET”) was founded in 2005 with the function

of reviewing deaths arising from the conflict in Northern Ireland which had occurred in
the period 1968-1998. We discuss in more detail in section 2 below the arrangements
which have been made over time to investigate such deaths.

20. The HET carried out a review of the death of Ms Smyth during the period 2006-

2008, culminating in the presentation to the family of a Review Summary Report
(“RSR”) on 21 July 2008. It appears that the RSR was principally based on materials
derived from the “inquest file” together with open-source material and the intelligence
report.

21. The RSR described the original RUC investigation as “relatively basic” but noted that it “must be judged in the context of the times”. In particular, “police enquiries, which would be commonplace by today’s standards, were not always possible, and resources devoted to incidents were substantially less than would be the case today.”

As regards future lines of enquiry, the RSR recorded that it had not been possible to identify the type of weapon used and that no new forensic opportunities had been identified. It also recorded that there was no intelligence prior to the incident which would have prevented the death.

22. The conclusion reached in the RSR was that only one shot appeared to have

been fired and it described Ms Smyth’s death as a “random killing”. The review did not
examine the possibility of military involvement in her death.

23.        The RSR records that the HET had initially decided against re-interviewing Mr

Carlin, but that following dialogue with family members, it decided to do so. An interview with Mr Carlin was carried out on 10 September 2008, by which time he was in poor health. Mr Carlin’s description of the incident, provided orally, was said to be virtually identical to his original statement.

(iv)        The Panorama programme

24.        On 21 November 2013, an edition of the BBC’s current affairs programme,

Panorama, was broadcast, featuring the activities of the MRF in Northern Ireland in the early 1970s. According to the programme, the MRF operated over a period of some 14 months mostly in Belfast; it would have been operating at the time of Ms Smyth’s
death and in the area where it occurred. Panorama claimed that some members of the
unit operated outside the law and fired at and killed unarmed civilians. To a degree,
interviews broadcast with former MRF members lent support to this view and the
programme therefore attracted significant public attention.

25. The case of Ms Smyth’s death is not referred to in the broadcast. Maguire J suspected that at the date of its showing, it is likely that only a person with a very detailed knowledge of the circumstances of Ms Smyth’s death would have made a connection with the theme pursued by Panorama.

(v)         The discovery of the military logs (2014)

26. In June 2014, a researcher, in the course of conducting legacy archive research

in the National Archives in Kew, found military communication records relating to the
evening of 8 June 1972 and early hours of 9 June 1972. The logs took the form of
operational log sheets, recording radio traffic. The logs, consisting of eight documents,
were found in a file entitled “Commander’s Diary, Headquarters, Northern Ireland,
1972”.

27. The logs were given to Ms McQuillan’s solicitor who provided copies to the PSNI

in October 2014. During the course of the judicial review proceedings, new materials
including entries from further military logs were disclosed.

28. In his judgment, Maguire J set out the significant entries. It is not necessary to

repeat these here. Maguire J identified four possible interpretations of the military logs
which were reproduced in the judgment of the Court of Appeal. Neither court sought
to determine which interpretation was to be preferred. The possible interpretations
identified by Maguire J may be summarised as follows:

(i) The logs provide a measure of support for the previously expressed views

of family members that there was more than one shot fired at the car. For
example, there is reference to the car being “machine-gunned” and there are at
least two references to a “burst” of automatic fire in the context of a woman
being hit.

(ii) The logs disclose an incident involving “KP19”, understood to be a code

for a military sanger located nearby further along the Glen Road. This might
lend support for the possibility that the sanger was fired upon and that a soldier
in the sanger fired a 7.62mm round, claiming a hit.

(iii) The reference to the MRF firing on two gunmen behind a hedge in the

area, may support the possibility of MRF involvement. This explanation would
not be consistent with the circumstances of the death as previously understood
but it is of interest that the MRF is identified as operating in the area and at the
general location around the time of Ms Smyth’s death.

(iv) The reference to three men placing Ms Smyth in a taxi and the driver

being told to drive to the hospital might be capable of being viewed as not
discordant with the intelligence received in 1975, which had referred to men
performing vigilante patrolling.

(vi)        Subsequent events

29. The PSNI considered the materials provided to it by Ms McQuillan. It appointed an investigating officer to review the military logs but it was not considered that they supported the view that the MRF was involved. However, the view was taken that the materials did support the possibility of military involvement in the death as a result of the reference to an incident at the KP19 sanger.

30. A decision was made by the PSNI in December 2015 that the death should be

further reviewed within the Legacy Investigation Branch (“LIB”) which by this time had
taken over the functions of the HET.

31.        The position of the PSNI during the course of the proceedings in the lower

courts was that if, in the course of its review, the LIB identified any indication that wrongdoing or a criminal offence might have been committed by a police officer, whether from the RUC or PSNI, the case would have been immediately referred to the

Police Ombudsman for Northern Ireland (“PONI”) in order to carry out any investigation which it considered to be appropriate. Otherwise, the PSNI would carry out any investigation required.

32.        The LIB did not begin the review, because, following the decision of the Court of

Appeal, the Chief Constable decided to appoint independent officers to carry out the review and any necessary investigation into the death of Ms Smyth. In doing so, the Chief Constable stated that he was “deeply sorry that there were previous investigative failures into the circumstances surrounding [Ms Smyth’s] death”. The Chief Constable acted on a voluntary basis and without prejudice to the existence of a legal obligation to do so. He has appointed Jon Boutcher (the former Chief Constable of Bedfordshire Police) and his team of investigators who are from outside the PSNI. This work is currently underway under the name Operation Mizzenmast.

2. The arrangements made to investigate deaths and ill-treatment arising during the Troubles (“legacy cases”)

33.        In 2001, the RUC was succeeded by the PSNI as the single civilian police force in

Northern Ireland.

34. The units of the PSNI which have been involved in investigations or reviews of Troubles-related deaths in Northern Ireland have been, sequentially:

(i)         the Serious Crimes Review Team (“SCRT”) from 2003 to circa 2005/2006;

(ii)        the HET from circa 2005/2006 to 2014; and

(iii)       the LIB from 2015 to date.

In addition, as mentioned in para 31 above, cases involving alleged wrongdoing by a police officer are referred to PONI.

35.        The Stormont House Agreement of 23 December 2014 between the British and

Irish Governments and the political parties in Northern Ireland envisages the establishment of an independent Historical Investigations Unit (“HIU”) which would take over responsibility for the investigation and review work of both the PSNI and PONI. The HIU has not yet been established.

(i)          Oversight by the Committee of Ministers

36.        In the period 2000-2003, the Strasbourg Court found breaches of the

investigative obligation arising under article 2 of the Convention in a number of cases
involving the United Kingdom arising out of deaths in Northern Ireland in which
members of the British security forces were implicated: McKerr v United Kingdom
(2002) 34 EHRR 20; Jordan v United Kingdom (2003) 37 EHRR 2; Kelly v United Kingdom
(2000) 30 EHRR CD223; Shanaghan v United Kingdom (2000) 30 EHRR CD 370;
McShane v United Kingdom (2002) 35 EHRR 23; and Finucane v United Kingdom (2003)
37 EHRR 29. The findings of the Strasbourg Court included both that there was a lack of
independence by the RUC in some of the investigations and also investigative failings.
The cases have become known as the “McKerr group”.

37. Pursuant to article 46(2) of the Convention, the final judgment of the Strasbourg

Court in each case was transmitted to the Committee of Ministers to supervise its
execution, which supervision included the issue of the independence of investigators.
The Committee of Ministers conducted its scrutiny of these cases as a group.

38. The UK Government thereafter set in train a package of measures to remedy

the identified breaches of the article 2 procedural obligation, which included, as a part
of the obligation of an effective investigation, the requirement to secure the
independence of the investigators. The package of measures was overseen by the
Committee of Ministers.

(ii)         The SCRT

39. The SCRT was established in 2003 as one of the measures designed to address

the defects in previous police investigations. The UK Government reported to the be expanded to process greater numbers of unresolved deaths and to do so in a way that commanded the confidence of the wider community. This led to the establishment of the HET.

(iii)       The HET

40. The HET was established in September 2005, as a unit of the PSNI, to investigate

3,269 unsolved murders committed during the Troubles, specifically between 1968 and
1998. It commenced its work in 2006. Its establishment was one of the general
measures proposed by the UK Government to the Committee of Ministers.

41. The HET was principally made up of civilian staff (many of whom were retired

officers from police forces other than the PSNI) under the control of a Director who
was accountable to the Chief Constable. It adopted three main objectives:

“1. To assist in bringing a measure of resolution to those

families of victims whose deaths are attributable to ‘the
Troubles’ between 1968 and the signing of the Belfast
Agreement in April 1998;

2. To re-examine all deaths attributable to ‘the Troubles’

and ensure that all investigative and evidential opportunities
are subject to thorough and exhaustive examination in a
manner that satisfies the Police Service of Northern Ireland’s
obligation of an effective investigation as outlined in article 2,
Code of Ethics for PSNI;

3. To do so in a way that commands the confidence of the wider community.”

42.        Arrangements were put in place at the time of the establishment of the HET, or

evolved with experience, to secure the practical independence of the HET investigators from those implicated in the events. In some circumstances those arrangements had to take into account that the PSNI “necessarily, … inherited officers and resources” from

the RUC, so that the arrangements were designed in those circumstances to secure them briefly: (i) the HET had a large degree of operational independence as it reported directly to the Chief Constable; (ii) until September 2013 a PSNI legacy investigation was commanded by two senior staff from outside the PSNI; (iii) the existence between 2006 and 2014 of a team, known as “the White team”, which was based in London and staffed by police officers from outside Northern Ireland to examine cases in which there were allegations of collusion, which worked alongside the HET’s Complex Enquiry Team, which also was staffed by investigators who had no prior link with the RUC or the PSNI; and (iv) declarations and undertakings by former RUC and PSNI officers at the stage when a case was being allocated to reveal any prior involvement and proposals for vetting such declarations.
practical independence not only from the RUC but also from the PSNI. In other
circumstances, the arrangements had to take into account that the investigation in
question was into the security forces. In those circumstances, the arrangements were
designed to secure practical independence from the security forces. The Court of

43.        The Committee of Ministers examined the progress of the HET from its

inception until 19 March 2009. On that date, having been satisfied by the information provided to it, the Committee of Ministers closed its examination into the issue of the independence of investigations into historical cases “as the HET has the structure and capacities to finalise its work”.

44.        The HET was disbanded in 2014, and its workload was transferred to the LIB.

(iv)        The LIB

45. The LIB is the present unit within the PSNI responsible for legacy cases, which

includes reviewing the circumstances of all Troubles-related deaths in Northern Ireland
and conducting investigations into such deaths, if there is sufficient evidence to do so.

46.        On 18 September 2014, the Chief Constable met with the Performance

Committee of the Policing Board and outlined that, due to severe budgetary pressures, the PSNI was considering drawing together its legacy operations under a single command, provisionally referred to as the “Legacy Branch”. This Branch was to be integrated into the Crime Operations Department, accountable to the Chief Constable through the Assistant Chief Constable.

47.        On 5 January 2015, the LIB was established as a unit within the PSNI operating

under the direction of the Assistant Chief Constable, Crime Operations. The Chief that until that unit was established, he had the statutory responsibility for the legacy caseload. The LIB was therefore to be a temporary measure pending the establishment of the HIU. Terms of reference for the LIB were adopted by the PSNI on 20 May 2015. In February 2016, the LIB was transferred from the PSNI’s Crime Operations Department to the newly established Legacy and Justice Department within PSNI.

48.        The number of staff in HET varied between 80 and 180 during the period

between 2006 and 2009. At its establishment, it was anticipated that the LIB would
have a total of 70 staff. The LIB has the role of reviewing and if appropriate
investigating deaths related to the security forces arising out of the Troubles between
1969 and 2004. However, its case load has included not only some 900 cases not
completed by the HET, but also the Bloody Sunday enquiry, the Military Reaction Force
enquiry, the Boston College tapes enquiry, the “on the runs” enquiry, and
approximately 70 other murder enquiries, previously within the remit of PSNI C2
(Crime Operations Department), for which the LIB became responsible.

49. Detective Superintendent Jason Murphy deposed on 11 April 2016 that the

number of staff involved in reviews and investigations in LIB was then 72. Detective 55. Of the 55 LIB members of staff on 5 December 2017, 27 had former service in the RUC. Two of those individuals had previously worked within RUC Special Branch or its successor within the PSNI, one of whom was a police officer and the other worked in a secretarial position. Within these 27 members of LIB staff with RUC service, six individuals worked as LIB support staff and not as primary investigators or review officers.

(v)         The HIU

50.        As we have said (para 35 above), the Stormont House Agreement of 23

December 2014 provided for the establishment of the HIU. The HIU would be a new independent body to take forward investigations into outstanding Troubles-related deaths. It would take on outstanding cases from the HET process and the legacy work
of PONI.

51. The agreement did not specify a timeframe within which the new HIU was to be

established. At the time, the Chief Constable indicated that he expected it to be two
years before the new unit was to be ready to start work. The HIU has not yet been
established.

3.          Overview of the Convention issues raised in these appeals

52.        In order to set in context our summaries of the judgments of the Northern

Ireland courts, it may be helpful to give a very brief overview of the Convention issues which they addressed. As we explain more fully below, there is implied into article 2 of the Convention an obligation on the state promptly to conduct some form of official
investigation when an individual is killed by the use of force. A similar investigative obligation may arise under article 3 of the Convention where there is a reasonable suspicion that a person has been subjected to torture or inhuman or degrading

treatment. The jurisprudence of the Strasbourg Court has established a requirement that such an investigation should be effective. One aspect of this requirement is that the investigation must be independent.

53.        There is also jurisprudence of the Strasbourg Court, which lays down pre-

conditions of the investigative obligation, where a death or ill-treatment had occurred between the death or ill-treatment and the date when the right of individual petition was accepted. Alternatively, there must be an extraordinary situation in which the need to ensure effective protection of the guarantees and underlying values of the Convention constitutes a sufficient basis for such a connection. This is recognised by all parties to these appeals. There is also jurisprudence from the courts of the United Kingdom, which is challenged in these appeals, that, where a challenge is made under the HRA, similar requirements exist in relation to events which occurred some years before the coming into force of that Act on 2 October 2000.
some years before a state accepted the right of individual petition to the Strasbourg

54. A further issue which arises on these appeals relates to the circumstances in

which the obligation to investigate under article 2 or 3 of the Convention may revive
years after an event on the discovery of new and relevant evidence of sufficient
cogency.

4.          The judgments of the courts below in Ms McQuillan’s application for judicial

55. Ms McQuillan applied for judicial review in an application dated 16 June 2015 in

which she sought among other things an order requiring an effective investigation of judgments dated 3 March 2017 and 13 April 2018. In his first judgment Maguire J accepted the gravamen of Mr Southey QC’s arguments on behalf of Ms McQuillan which were, in summary, that the previous investigations by the RUC and the HET appeared to lack impartiality, as there had been no enquiry into the possibility of military involvement in Ms Smyth’s death. Mr Southey also drew attention to the criticisms of the HET by HM Inspectorate of Constabulary (“HMIC”) in a report in 2013 both for failing to check the self-declarations of its officers as to any involvement or interest in a case which they would be investigating, and for its dependence on intelligence provided by the PSNI Intelligence Branch, some of whose staff were former Special Branch Officers. He also criticised the movement of investigations from the HET to the LIB for budgetary reasons, which created further difficulties in relation to the public perception of the independence of such investigations.

56.        Maguire J concluded that the LIB at that time lacked the necessary element of

independence to enable it to make further investigations into Ms Smyth’s death (para 105). He emphasised the paramount importance of the need to have regard to public perception (para 106) and saw the issue as being how the matter is reasonably

perceived (para 107). The failure of the HET to look at the possibility that soldiers were involved in Ms Smyth’s death might have a benign explanation, but it might also reflect a reluctance to investigate a possibility that would traduce the reputation of the

security forces (para 115). He concluded that, in the light of the inadequacy of the
earlier investigations, the transfer of investigations from the HET to the LIB, and the
criticisms of the HET by HMIC, a fair-minded and informed observer would not
perceive the PSNI as passing the test for independence for this purpose (para 123). He
made a declaration that the proposed investigation by the LIB into Ms Smyth’s death
was in conflict with the requirements of article 2 of the Convention, as the LIB lacked
the requisite independence to perform an article 2 compliant investigation in respect
of this death.

57. The first judgment proceeded on the basis of a concession by the PSNI that,

although Ms Smyth’s death had occurred 28 years before the HRA came into force, the
military logs constituted new evidence coming to light within the principles set out by
the Strasbourg Court in Brecknell v United Kingdom (2008) 46 EHRR 42 (“Brecknell”),
which we discuss in paras 116-118 below, and that this required the PSNI to take
further investigative measures concerning her death. It was and is common ground
that the military logs met the Brecknell evidential threshold. The PSNI also conceded
that the investigative measures were subject to the article 2 investigative obligation
and that those responsible for carrying out the investigation were required to be
independent of those implicated in the events.

58. On appeal, the PSNI accepted that the military logs would otherwise satisfy the

evidential threshold set out in Brecknell and undertook to conduct a review of the
death which would comply with article 2 standards. It has renewed that undertaking
before this court. But it sought successfully in the Court of Appeal to withdraw the
concessions to which we have referred in the previous paragraph. The Court of Appeal
therefore remitted the case to Maguire J for reconsideration.

59. Ms McQuillan was permitted to expand her Order 53 statement to add further common law grounds of challenge to the claim under article 2 of the Convention.

60.        In his second or supplementary judgment, Maguire J dismissed Ms McQuillan’s

application, holding:

(i) that an investigative obligation under article 2 of the Convention did not

arise as a matter of domestic law under the HRA because there was not a
genuine connection between Ms Smyth’s death and the coming into force of
the HRA and the “Convention values” test, which we discuss in paras 145-146
below, had not been met; there had therefore been no breach of article 2;

(ii)        that the PSNI was not bound by any form of legitimate expectation in

domestic law; and

(iii) that there was no parallel to article 2 existing at common law requiring an independent investigation so there was no breach of the common law.

61. Ms McQuillan appealed Maguire J’s second judgment. The Court of Appeal

(Morgan LCJ, Stephens LJ and Sir Paul Girvan) [2019] NICA 13, [2020] NI 583 allowed
her appeal holding:

(i) that under the HRA as a matter of domestic law an article 2 investigative obligation did arise in relation to Ms Smyth’s death;

(ii) that the decision of the Strasbourg Court in Brecknell was authoritative in relation to the institutional independence of the PSNI;

(iii) that the critical date for the purposes of the “genuine connection” test in

the context of section 6(1) of the HRA is 2 October 2000, on which date that Act
came into force;

(iv) that the PSNI had not demonstrated practical independence on the part

of the LIB so that it had the capacity to carry out an investigation into Ms
Smyth’s death; and

(v)        that the challenges at common law failed: Maguire J had been correct to

conclude that the PSNI was not bound by any form of legitimate expectation, that there was no parallel obligation to article 2 at common law, and that the Chief Constable had not acted irrationally in the exercise of discretion
concerning the future conduct of any investigation into Ms Smyth’s death.

62.        On the question of the passage of time, the Court of Appeal, recognising that

Ms Smyth’s death had occurred 28 years before the HRA entered into force on 2 October 2000, stated that there had to be a genuine connection between the death and the entry into force of the HRA (para 131). It held that the lapse of time between the relevant death and the entry into force of the HRA must remain reasonably short if it is to comply with the genuine connection standard but that ten years or less was not an immutable requirement. It held that little if any weight should be attached to the passage of time in any case where, as in Brecknell, plausible and credible evidence comes to light after 2 October 2000: absent exceptional circumstances, the death would meet the genuine connection test (paras 132, 135 and 137-138). It also held that the second condition inherent in the “genuine connection” test, regarding the carrying out of investigative activity after the “critical date”, was satisfied. In this case there had been no investigation of military involvement in Ms Smyth’s death and the lack of that investigation might be the result of incompetence or something which was not benign, such as positive obstruction by the RUC (paras 135-136). On that basis it held that the “genuine connection” test was satisfied.

63.        On the question of the independence of the PSNI, the Court of Appeal referred

to the obligation under section 2 of the HRA to take account of the clear and constant events. Such independence had two elements: (i) there must be a lack of hierarchical or institutional connection between the investigators and those implicated in the events and (ii) the investigation must have practical independence. The investigation had to be structured in such a way that the state authorities were able to demonstrate that it was an independent investigation.
line of decisions of the Strasbourg Court and the Committee of Ministers. Those
decisions established the need for an effective investigation where individuals had
been killed by the use of force. The central purpose of the investigation was to secure
the effectiveness of domestic laws which protect the right to life and to ensure that
state agents or bodies are accountable for deaths occurring under their responsibility.

64.        The Court of Appeal, in addressing the need for a lack of hierarchical or

institutional connection, recognised that there was no requirement of a complete established the core principle that police officers were to exercise their functions with the aims of securing the support of the local community and of acting in cooperation with the local community. The Court of Appeal referred to the personnel changes to the PSNI through early retirement packages, the policy of 50/50 recruitment from the Protestant and Catholic communities, the dissolution of the former Special Branch, the establishment of a new Northern Ireland Policing Board in 2001 and the creation of the Northern Ireland Department of Justice in 2010.
hierarchical or institutional disconnection where the state could take steps to
introduce independence into the relevant structures. It analysed the police reforms
which had been effected since 1998, following the Belfast Agreement. It narrated the
principal recommendations of the Patten Report, the acceptance of those
recommendations by the UK Government and the enactment of the Police (Northern

65. Those reforms were the factual background to the decision of the Strasbourg

Court in Brecknell that there was a lack of institutional connection between the PSNI
and the RUC, a decision which the Court of Appeal treated as authoritative (paras 146
and 192). Similarly, the Court of Appeal (paras 158-167) recounted the decisions of the
Committee of Ministers taken under article 46 of the Convention between 2007 and
2009 which resulted in the decision of the Committee of Ministers on 19 March 2009
to close its examination of the independence of the PSNI investigators because the HET
had the structure and capacities to allow it to finalise its work.

66.        Where the Court of Appeal found the PSNI’s investigation of the death of Ms

Smyth to be wanting was in relation to its practical independence. The structures and capacities of the PSNI to conduct independent investigations had changed since the decision of the Committee of Ministers on 19 March 2009; in particular, the HET had ceased to exist and the HIU had not been established. The Court of Appeal accepted an approach that the court should await the outcome of an investigation before deciding whether it was independent, “provided it has the capacity to fulfil the procedural requirement of independence”, taking account of both presently envisaged arrangements and any arrangements which might be put in place as the investigation proceeds (para 173). There was therefore a strong presumption against a judicial review application before the conclusion of an investigation unless there was some exceptional circumstance, such as “a compelling case that the arrangements that are presently envisaged and any sensible alteration to them as the investigation proceeds, will obviously lead to a requirement for a fresh investigation” (para 174). But this did not mean that the Chief Constable should not give the victim or the victim’s family details of the practical independence of an envisaged investigation: the Belfast Agreement envisaged such accountability. The prompt provision of such information was a requirement to enable a victim or a victim’s family to determine whether the practical arrangements for an investigation were fundamentally and obviously flawed (para 175).

67. The Court of Appeal summarised its conclusions as to the legal principles in

relation to independence in para 176. So far as relevant to practical independence it
stated:

“(d)	A decision in relation to the independence of the

investigators made prior to the conclusion of the
investigation should be restricted to a decision as to whether
the investigation has the capacity to fulfil the procedural
requirement of independence. Capacity should be widely
interpreted to include not only the presently envisaged
arrangements but also any new arrangements that could or
might be put in place as the investigation proceeds.

(e) The Chief Constable has an obligation to inform the

families (article 2) or the victim (article 3) as to the practical
arrangements to secure independence of an article 2 or
article 3 police investigation in order to demonstrate that it
has the capacity to fulfil the procedural requirement of
independence.

(f)	In the area of challenges to the practical

independence of a police investigation there should be a strong presumption against a judicial review application before the conclusion of the investigation though there can

be exceptions for instance in circumstances where there is a
compelling case that the arrangements that are presently
envisaged and any sensible alteration to them as the
investigation proceeds will obviously lead to a requirement

for a fresh investigation.

(g)	The Strasbourg test of a lack of hierarchical or

institutional connection and practical independence has
sufficient similarities to the Porter v Magill test to allow that
test to be used as an aid to the Strasbourg test provided that
it is clearly identified which aspect of the Strasbourg test is
being considered as different factual issues will arise in
relation to hierarchical or institutional connection and in
relation to practical independence.”

68.        The Court of Appeal interpreted Maguire J’s judgment as being a finding that

the LIB at that time lacked practical independence. That judgment was informed by (i) put in place to conduct a further review or investigation. As a result, it had not been demonstrated that the further review or investigation by the LIB had the capacity to satisfy the article 2 requirement of practical independence.
the past investigatory failures, including that conducted by the HET in 2006-2008, (ii)
the lack of proper arrangements for the provision of intelligence information to the
investigator and (iii) the inadequate vetting of the relevant staff. Because, as Maguire J
had found, there had been a real possibility of bias in the initial RUC investigation and
the HET investigation, it was necessary that clear and practical arrangements be put in
place to secure that the future investigation was capable of being independent. The

69. The Court of Appeal granted declarations that the Chief Constable is (i) obliged

to conduct the further investigations into Ms Smyth’s death in a way which satisfies
the State’s procedural obligation under article 2 of the Convention, and (ii) bound
promptly to take steps to secure the practical independence of the investigators so
that they have the capacity to carry out an article 2 compliant, effective investigation
into the death of Ms Smyth.

“Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17

August and 11 to 18 October respectively, they were submitted to a form of ‘interrogation in depth’ which involved the combined application of five particular
techniques. These methods, sometimes termed
‘disorientation’ or ‘sensory deprivation’ techniques, were not
used in any cases other than the 14 so indicated above. The
techniques consisted of the following:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a ‘stress position’, described by those who underwent it as being ‘spreadeagled against the wall, with their fingers put

high above the head against the wall, the legs spread
apart and the feet back, causing them to stand on
their toes with the weight of the body mainly on the

fingers’;

(b)	hooding: putting a black or navy coloured bag

over the detainees’ heads and, at least initially,
keeping it there all the time except during

interrogation:

(c)	subjection to noise: pending their

interrogations, holding the detainees in a room where

there was a continuous loud and hissing noise;

(d)	deprivation of sleep: pending their

interrogations, depriving the detainees of sleep;

(e)	deprivation of food and drink: subjecting the

detainees to a reduced diet during their stay at the
centre and pending interrogations.”

75. Within a few days of the commencement of internment, allegations were made by and on behalf of those detained of brutality and ill-treatment by the security forces. These were published in newspapers, first in Ireland and then in England and Northern Ireland. In the period following the commencement of internment, the UK

Government stated publicly that the decision to conduct deep interrogation and use the five techniques in Northern Ireland had been authorised by the Northern Ireland Government in concurrence with the UK Government. Statements in Parliament
towards the end of 1971 indicated that Ministers knew the interrogation would be conducted within the guidelines in JIC(65)(15) and that the methods would be the same as had been used on numerous occasions in the past. In its 1978 judgment the

Strasbourg Court stated (at para 97):

“From the start, it has been conceded by the respondent authorised at ‘high level’. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.”

(ii)         The Compton Committee

76. On 31 August 1971, the Home Secretary, Mr Reginald Maudling, responded to

allegations of mistreatment of detainees by establishing a non-statutory Committee of
Inquiry chaired by Sir Edmund Compton. Its terms of reference were:

“To investigate allegations by those arrested on 9th August security forces prior to either their subsequent release, the preferring of a criminal charge or their being lodged in a place specified in a detention order.”

under the Civil Authorities (Special Powers) Act (Northern

The Compton Committee did not address in its report the question of who authorised savage form of cruelty and that cruelty implies a disposition to inflict suffering, coupled with indifference to, or pleasure in, the victim’s pain”.

the use of the five techniques. However, the minute of a meeting of the Committee
with the RUC Chief Constable and other senior RUC officers on 3 September 1971
records that the techniques were only used “after the highest Stormont and
Westminster authority had been obtained”. The final report of the Compton
Committee was adopted on 3 November 1971 (Report of the enquiry into allegations
against the security forces of physical brutality in Northern Ireland arising out of events
on 9 August 1971 (1971-72) (Cmnd 4823)) and was followed by a supplemental report
dated 14 November 1971. It concluded that in depth interrogation by means of the
five techniques which it described constituted physical ill-treatment but not brutality.

77. On 17 November 1971 the House of Commons debated both the content of the Compton Report and the propriety of using the interrogation techniques which it identified. In response to questions as to ministerial knowledge or authorisation, Lord Balniel, Minister of State in the Ministry of Defence, stated that “the methods of interrogation have been used for many years” and that “the same Ministerial concurrence … was given to the same methods of interrogation used in Aden, Malaysia and Borneo”. He also stated:

“… The formal authorisation to remove certain detainees to knowledge and concurrence of Her Majesty’s Government. Ministers knew that the interrogation would be conducted within the guidelines laid down in 1965 and 1967 and that the methods would be the same as have been used on numerous occasions in the past. Their detailed application was necessarily a matter for the judgment of those immediately responsible.” (Hansard (HC Debates) 17 November 1971, cols 455-456, 496)

the interrogation centre was necessarily given by the

Similar answers were given to written Parliamentary questions. The Attorney General stated in response to a question from Mr George Cunningham MP that in his opinion there was no evidence that any person within the jurisdiction of the English courts had

committed a criminal offence of the nature alleged. Mr Cunningham secured an
adjournment debate in the House of Commons on 9 December 1971 on the specific
question of Ministerial responsibility for the use of the techniques in Northern Ireland.

In the course of that debate Lord Balniel stated:

“This interrogation was authorised by the Northern Ireland
Government with the knowledge and concurrence of Her
Majesty’s Government.” (Hansard (HC Debates) 9 December
1971, col 1680)

(iii)       The Parker Committee

78. In opening the debate on the Compton report on 16 November 1971 the Home Secretary stated that the Prime Minister had decided to establish a further committee of inquiry to examine the interrogation procedures “currently authorised” and whether any policy change was required (Hansard (HC Debates) 16 November 1971, col 217). The Parker Committee was established by the Home Secretary with terms of reference to consider:

“whether, and if so in what respects, the procedures currently authorised for the interrogation of persons suspected of terrorism and for their custody while subject to

interrogation require amendment.”

On 31 January 1972 it published a majority report (Lord Parker of Waddington and Mr JA Boyd-Carpenter) and a minority report (Lord Gardiner): Report of the Committee of Privy Counsellors appointed to consider authorised procedures for the interrogation of persons suspected of terrorism (1971-72) (Cmnd 4901). Both the majority and minority reports considered that the techniques were illegal under English law. However, in

deference to civil proceedings which were then pending in Northern Ireland, the
majority refrained from expressing any view about Northern Ireland law.

79.        The majority interpreted its terms of reference as requiring it to enquire

generally into the interrogation in custody of a person suspected of terrorism in the
future and not specifically in connection with Northern Ireland. They considered
whether the five techniques complied with the JIC(65)15 Directive and whether they
should be authorised. They found the boundaries between hardship, humiliating
treatment and torture were matters of fact and degree and would ultimately attract
different opinions. They concluded that the use of the techniques in certain
circumstances should not be ruled out, with Ministerial authorisation, within the scope
of the JIC(65)15 Directive and subject to safeguards against excessive use. They made
no findings as to whether the use of these techniques had been authorised by a

Minister, commenting (at para 12):

“One of the unsatisfactory features of the past has been the
fact that no rules or guidelines have been laid down to
restrict the degree to which these techniques can properly be
applied. Indeed, it cannot be assumed that any UK Minister
has ever had the full nature of these particular techniques
brought to his attention and, consequently, that he has ever
specifically authorised their use.”

80.        The minority report of Lord Gardiner considered that the procedures to be

examined were those described in the report of the Compton Committee and that it was, as a result, necessary to establish of what those procedures consisted, by whom they were authorised, what their effects were and whether they required amendment.

He expressly rejected the definition of “brutality” adopted by the Compton Committee. He considered whether the five techniques had been authorised by “any document or Minister”, commenting that the “only evidence before us on this point was that it could not be said that UK Ministers had ever approved them specifically, as opposed to agreeing the general principles set out in the Directive on Military Interrogation”: para 8. He considered that if any document or Minister had purported to authorise the use of the techniques, the authorisation would have been invalid, as the procedures were illegal under domestic law. He identified the possibility that use of the techniques may have contravened international law but refrained from expressing a view on this issue. He considered that the use of the techniques was not morally justifiable, even in emergency situations. He opposed any change in legislation that would allow such ill-treatment in the future.

81.        The Parker Report was published and debated in Parliament on 2 March 1972.

The Prime Minister stated that the techniques would not be used in the future as an aid to interrogation and that parliamentary approval would probably be required if they were to be so used.

(iv)        Civil claims

82. All 14 men on whom the five techniques had been used made civil claims for damages, including claims alleging unlawful conspiracy, against Ministers. Dr Denis Leigh, Consultant Psychiatrist to the Army, to whom reference will be made below, acted as a defence medico-legal expert in the civil claims. All of the claims were

eventually settled for sums ranging from £10,000 to £25,000.

(v)         Ireland v United Kingdom

83.        On 16 December 1971 the Government of Ireland submitted an inter-State

application to the European Commission of Human Rights (“the Commission”) against treatment had been an administrative practice of the State and a continued series of executive acts which had exposed a section or sections of the population to torture or inhuman and degrading treatment. The application was not limited to the treatment of the Hooded Men in August 1971. The Irish Government maintained that the alleged acts were not isolated in time and place and had not been duly punished. It also drew attention to the failure of the UK Government to inform the Commission of the authority which ordered the application of the techniques. The Commission held that the application was admissible.
the United Kingdom contending that persons detained in Northern Ireland, including
the Hooded Men, had been subjected to treatment in breach of article 3 of the

84. The position of the UK Government was that, as it had been acknowledged that

the techniques were contrary to law, that they had been abandoned and that they
would not be used again, it was not necessary to reach a finding on whether they were
in breach of article 3. It advised its witnesses not to answer questions on the use of the
five techniques, asserting that this was out of concern for the safety of the witnesses
involved.

85.        The Commission heard evidence in 16 “illustrative cases” which included the

cases of two of the Hooded Men, Mr Patrick McClean and Mr Pat Shivers, both of whom gave evidence. The Commission heard evidence from 119 witnesses over a period of more than a year. The Commission was aware of the fact and the outcome of
the civil proceedings brought by the Hooded Men. The Commission heard conflicting expert evidence in relation to the psychiatric effects of the five techniques. Professor Robert Daly and Professor Jan Bastiaans on behalf of the Irish Government maintained
that both Mr McClean and Mr Shivers “would continue for a long time to have considerable disability shown by bouts of depression, insomnia and a generally neurotic condition resembling that found in victims of Nazi persecution”. Dr Denis

Leigh on behalf of the UK Government maintained that “the acute psychiatric symptoms developed by witnesses during the interrogation had been minor and that their persistence was the result of everyday life in Northern Ireland for an ex-detainee carrying out his work travelling to different localities. In no sense could the witnesses’ experiences be compared with those of the victims of Nazi persecution”.

“Although the five techniques, as applied in combination,
undoubtedly amounted to inhuman and degrading
treatment, although their object was the extraction of
confessions, the naming of others and/or information and
although they were used systematically, they did not
occasion suffering of the particular intensity and cruelty
implied by the word torture as so understood.”

The Court concluded that it did not have jurisdiction to direct the UK Government to initiate criminal or disciplinary action against members of the security forces who were involved in administering the five techniques.

90. There is no evidence that anyone involved in the authorisation or operation of

the five techniques has ever been the subject of criminal charges. On 1 December 1971
the Attorney General of England and Wales indicated that no prosecutions would
result from these events. It appears that the same position was adopted in Northern
Ireland.

(vi)        Release of Government documents and the RTÉ documentary

91. Following the disposal of the proceedings before the European Court of Human

Rights in 1978 the case of the Hooded Men lay dormant for a considerable period of
time until 2003 when government documents relating to the matter began to be
deposited at the UK National Archives at Kew, pursuant to the 30-year rule. Prior to
their release a review of papers was carried out by the Northern Ireland Office and
other Government departments in 2000-2002 to determine whether there were any
reasons why the papers should not be released or should be redacted. A note
prepared by officials in 2000 stated that “there are various papers that show that
Ministers and senior officials were indeed aware of the interrogation methods being
used”. A further NIO document dated 15 February 2000 stated that some of the papers
“contained implicit acknowledgement of authorisation of the ‘five techniques’ at
Government level”. The records were released, beginning in April 2003.

92. The release of those materials seems to have gone unnoticed for some while. In

time, however, they triggered the interest of various parties including the Pat Finucane Research was also carried out by the Irish national broadcaster RTÉ which on 4 June 2014 broadcast a documentary entitled “The Torture Files” about the Hooded Men and the use of the five techniques. It referred to a variety of documents which appeared to have been located in UK National Archives, which it said were newly discovered and had not been before the Commission or the Strasbourg Court. In particular, the documentary alleged that the United Kingdom had withheld from the Commission and the Court: (1) materials, including medical reports of Dr Leigh, which tended to undermine the evidence given on behalf of the United Kingdom that the psychological effects of the five techniques on the Hooded Men were not likely to be long-lasting or severe; and (2) information about who was responsible for the use of the five techniques, including the role of Ministers.

93.        By applications dated 20 January 2015 and 19 May 2015 respectively, Mr

McGuigan and Ms McKenna applied to the High Court in Northern Ireland for judicial review of decisions taken by the authorities in the light of the RTÉ documentary.

(vii)       The revision application

94. On 4 December 2014, the Government of Ireland made an application to the

Strasbourg Court pursuant to rule 80 of its Rules of Court, requesting a revision of the
Court’s 1978 judgment in Ireland v United Kingdom. Rule 80(1) provides:

“A party may, in the event of the discovery of a fact which
might by its nature have a decisive influence and which,
when a judgment was delivered, was unknown to the Court
and could not reasonably have been known to that party,
request the Court, within a period of six months after that
party acquired knowledge of the fact, to revise that
judgment.”

95. The revision application was based upon material which the Irish Government

had obtained from RTÉ and which had been used in the preparation and production of
“The Torture Files”. Ireland maintained that these materials had been withheld from
the Commission and the Strasbourg Court during the course of the main proceedings,
that they were not known to the Court at the time of its judgment, and that they
would or might have had a decisive influence on the specific question of whether or
not the use of the five techniques amounted to torture. Ireland relied upon two
grounds for the revision application:

(i) The UK Government had information within its possession, including

medical reports from Dr Leigh, demonstrating that the effects of the five
techniques could be substantial, severe and long-lasting while that government,
through the evidence of the same Dr Leigh, before the Commission had alleged
in the Convention proceedings that the said effects were minor and short term.

(ii) The archive material revealed the extent to which, at the relevant time,

the UK Government had adopted and implemented a policy of withholding
information from the Commission and the Court about key facts concerning the
five techniques, including that their use had been authorised at ministerial level
and their purpose in doing so.

96. In a judgment issued on 20 March 2018 the Strasbourg Court, by a majority of

six to one, dismissed the request to revise the 1978 judgment to substitute a finding of
torture for one of inhuman and degrading treatment.

97. In rejecting the first ground, the majority noted that Dr Leigh’s report on Mr McKenna in June 1975 was the only document relied upon which contained direct proof of Dr Leigh’s medical views on one of the men who was subjected to the five techniques:

angina pectoris, and that Dr L considered that in view of that condition the five techniques should not have been applied at all. The fact that Dr L had, some time after he had given evidence before the Commission, observed serious and long-term effects of the five-techniques in the case of one man with a specific health condition does not in the Court’s view suffice as prima facie evidence that the statements he made in respect of the general effects of those techniques were misleading or were made in bad faith.” (para 109)

“Only one contains direct proof of Dr L’s medical views on Dr L by the Commission which took place in June 1974 and January 1975. Secondly, the medical report relates to Mr SK, who was not, however, one of the two illustrative cases on which Dr L had given evidence to the Commission. Thirdly, it follows from the report that Mr SK had a serious medical precondition, namely
one of the men who had been subjected to the five
techniques, namely his report of June 1975 on Mr SK … The

Having considered the other documents relied upon in this regard (at paras 110-112), the majority concluded:

“In conclusion, the Court has doubts as to whether the
documents submitted by the applicant Government contain
sufficient prima facie evidence of the alleged new fact
namely that Dr L misled the Commission as to the serious and
long-term effects of the five techniques.” (para 113)

98.        In relation to the second ground the majority observed that some of the

“117. As regards the question of authorisation of the use of

the five techniques, the Court noted in the original
proceedings that the respondent Government had conceded
from the start that the use of the five techniques had been
authorised at a ‘high level’ and that they had been taught to
members of the RUC at a seminar held in April 1971 …
Furthermore, the Court held that there had been a practice
[of using the techniques] …

118. The Court concludes that the documents submitted in

support of the second ground do not demonstrate facts that
were ‘unknown’ to the Court when the original judgment was
delivered.”

(viii)      Investigation of alleged authorisation of torture

99. After the RTÉ documentary was broadcast, on 3 July 2014 a Board member of

the PSNI. Assistant Chief Constable Drew Harris stated that the PSNI was aware from
the documentary of the existence of a memorandum dated 31 March 1977 by Mr
Merlyn Rees, who was then Home Secretary, to the Prime Minister, Mr James
Callaghan (“the Rees Memo”), which referred to the use of the five techniques as
“torture” and to their approval by Ministers, and in particular by Lord Carrington, who
was then Secretary of State for Defence. ACC Harris explained that the PSNI wished to
source the original document and other materials by visiting the Public Records Office
in order to confirm or further clarify its contents. Once that had been done, the PSNI
would contact the Public Prosecution Service to seek advice as to next steps. He stated
that the matter had been passed to the HET. Further, in response to a written question
at the meeting of the Northern Ireland Policing Board on 3 July 2014, which asked
what action the Chief Constable had taken in relation to the assertion that Lord

the Northern Ireland Policing Board asked whether there was to be an investigation by written answer:

“The PSNI will assess any allegation or emerging evidence of
criminal behaviour, from whatever quarter, with a view to
substantiating such an allegation and identifying sufficient
evidence to justify a prosecution and bring people to Court.”

100.     Research was carried out by an officer with the HET in the National Archives at

Kew to locate relevant documents. The investigating officer concluded that the use of torture was never authorised at any level and that there would be no useful purpose in taking the matter further. His report was considered at senior officer level in the PSNI. This resulted in a decision on 17 October 2014 by the Assistant Chief Constable not to take the matter any further on the basis that no evidence had been found which supported the allegation that the UK Government had authorised the use of torture in Northern Ireland. We discuss these matters more fully when we discuss the challenges to the decision of 17 October 2014 based on allegations of breach of legitimate expectations and irrationality in paras 218-252 below.

6.          The present proceedings by Mr McGuigan and Ms McKenna and the

judgments of the courts below

(i)         Two questions arose. The first was whether it was likely that the

Strasbourg Court would find that the investigative obligation under article 3 was breached. The second was whether it was open to the domestic court to hold that there was such a breach (paras 237-238).

(ii) In relation to the first question, for present purposes the “critical date” was the coming into force of the HRA on 2 October 2000 (para 240).

(iii) In considering whether the genuine connection test was met two aspects

required to be met if the temporal problem was to be overcome, namely the
time factor and the balance of the process of investigation as between the
period prior to the critical date and period after it. With regard to the time
factor, he held that “the distance in time in the present cases is simply too long
to establish the existence of a genuine connection”. The gap was upwards of 40
years which exceeded by a wide margin the norm of ten years, even if this
period was made the subject of a generous extension. So far as the balance of
the process of investigation was concerned, the essence involved the question
whether much of the investigation into the relevant event took place or ought
to have taken place in the period following the critical date. In these cases, this
requirement was not satisfied because “the great bulk of the activity in respect
of the events here at issue occurred in the period 1971-78. Thereafter there was
a long period when the issues were dormant and the court struggles to
conclude that post 2014 there have been extensive investigative measures
taking place.” In this regard he noted that what article 3 required at the time
was the subject of exhaustive analysis in the course of the Strasbourg
proceedings. Accordingly, he concluded that the two aspects of the genuine

225. Following the meeting, an investigating officer, who was a temporary worker

with the HET, was sent to carry out research in the National Archives at Kew. His
instructions were to verify the existence of the Rees Memo and any other
documentation which may explain the context in which it was written and whether or
not the use of torture had been authorised.

The Rees Memo

226.     The Rees Memo was written by the then Home Secretary, Mr Merlyn Rees, to

the Prime Minister on 31 March 1977 after reading a briefing note prepared by the UK the hope of reaching a friendly settlement of the proceedings brought by Ireland against the United Kingdom which were then pending before the Strasbourg Court. In the briefing note the UK Attorney General had expressed the view that the British and Irish Governments were too far apart on the issue of prosecutions or disciplinary action against those who had carried out the interrogations of the Hooded Men for a settlement to be reached.

227. In the Rees Memo the Home Secretary commented upon the possibility of prosecutions or disciplinary action in the following terms:

“It is my view (confirmed by Brian Faulkner before his death)
that the decision to use methods of torture in Northern
Ireland in 1971/72 was taken by Ministers - in particular Lord
Carrington, then Secretary of State for Defence.

If at any time methods of torture are used in Northern Ireland contrary to the view of the Government of the day I would agree that individual policemen or soldiers should be prosecuted or disciplined, but in the particular circumstances of 1971/72, a political decision was taken.”

A manuscript note in the margin, which appears to have been written by Head of the Army Department in the Ministry of Defence, John M Parkin, states: “This could grow into something awkward if pursued”.

The research reports

228. The investigating officer produced two reports. His first report summarised his initial findings; the second was a more detailed report.

229. In his first report, dated 10 July 2014, the investigating officer explained that he had located two relevant files in the National Archives but not the Rees Memo, which appeared to have been returned to the original department and replaced by a dummy sheet. He said that the two files contained an abundance of information which added significant clarity to the Rees Memo and the situation at the time. In relation to the

Rees Memo, he commented:

“Whoever obtained this memorandum did not disclose
various other documents which they must have had sight of
when researching the subject. It is my view that when this
particular document was obtained the researcher must have
had sight of the two files in question. It is a common ploy to
supply the PSNI with one item of supposed information
whilst holding back on other documents which have been
copied. This should be borne in mind before any decision is
made as to the future conduct of this issue.”

There is no evidence that anyone had supplied the PSNI with a copy of the Rees Memo, let alone that anyone did so whilst holding back other documents; but the assumptions made by the investigating officer about what had given rise to his instructions

regrettably do not give confidence that he was approaching his task with the
impartiality to be expected of an officer of the PSNI.

230. The investigating officer stated that he had taken the matter as far as he could

within a limited time and suggested that further research on the subject “would
involve the possible reading of no less than one hundred and fifty individual files and
may never answer the question posed”. He suggested areas that could be focussed on
if it were deemed necessary to conduct further research. They included limited
research into Lord Carrington and Government papers during the 1971/72 period and
applying for the Rees Memo.

231.     In his second report, dated 18 August 2014, the investigating officer suggested

that the reporter who presented the RTÉ documentary could not have inspected the because “this document has, in effect, been retained under secure conditions since 1978”. This was said to raise “interesting questions” about how the reporter had had access to the document. An affidavit made by the reporter in these proceedings states that the officer’s supposition was wrong and that she had indeed found the original Rees Memo in the National Archives in April 2014 (in a different file from the two files located by the investigating officer). The reporter has exhibited to her affidavit a copy of a photograph she took of the Rees Memo, which was shown on screen in the documentary.

232. The investigating officer went on to discuss some of the documents contained in

report copies of these documents. They included a letter dated 12 April 1977 from the

the two files which he had inspected at the National Archives and annexed to his Home Secretary, in response to the Rees Memo. In this letter Mr Mulley expressed his strong agreement that there should be no question of either prosecuting or taking disciplinary action against those responsible for “deep interrogation” in 1971. He stated that he was, however, “a little surprised by the statement that our predecessors, and particularly Lord Carrington, took a ‘decision to use methods of torture in Northern Ireland’”. He said that “the published records do suggest that this is perhaps a rather hard way of putting the decision to use deep interrogation”. He referred to the statement by Lord Balniel in the House of Commons on 9 December 1971 that the use of the five techniques had been authorised by the Northern Ireland Government with the knowledge and concurrence of the UK Government, but that the rules then in force to govern the conduct of interrogation expressly prohibited torture, brutality and humiliating or degrading treatment. He pointed out that the UK Government had rested publicly on this statement and had not expressly accepted the subsequent finding of the European Commission that the five techniques constituted torture (although it had not contested the finding). He suggested that Mr Rees had “compressed the record rather too starkly and in a way which goes beyond any public position”.

233. This prompted a further memorandum from Mr Rees to the Prime Minister dated 18 April 1977 in which he stated:

“… I would accept that in discussing the situation in 1971/72 I compressed the record too starkly. It would have been better had I referred to a decision to use interrogation in depth in

Northern Ireland in 1971/72 rather than referring to a decision to use methods of torture at that time.”

234. On the basis of these (and two other) documents which he identified as placing the Rees Memo in context, the investigating officer wrote:

“It is perfectly clear that Merlyn Rees felt he unwittingly used
the word ‘torture’ in an ill-advised and unfortunate manner.
This one memorandum has been seized upon by some
groups and individuals to attempt to justify claims that
Government sanctioned the use of ‘torture’.”

The investigating officer did not identify what groups or individuals he had in mind but his antipathy towards them and towards the claim that the “interrogation in depth” of the Hooded Men involved torture is apparent.

235. The investigating officer referred to a number of other documents which he had

reviewed and also outlined the findings of the Compton and Parker Committees and
materials relating to the Ireland v United Kingdom case in the Strasbourg Court. He
concluded that no useful purpose would be achieved by taking the matter further and
said of his research:

“The research is backed by official Government documents discover any documentation which linked Lord Carrington to matters of ‘torture’.”
which are clear in their intent and purpose. At no stage, other
than in the [Rees Memo], have I had sight of the word
‘torture’ as stated in the [Rees Memo]. To that end, I did

concentrate a portion of the general research in regard to

The investigating officer went on to say:

“It would appear that the media in the shape of the BBC and case of RTÉ, a particularly biased, badly researched and misleading programme.”

236.     He also reported that he had found a “further RTÉ internet release” bringing

attention to the programme broadcast on 4 June 2014. This showed a picture of what purported to be secret and confidential Government documents. He also annexed an “internet release” by Gerry Adams uploaded on 5 June 2014 which referred to

research conducted by the Pat Finucane Centre. The investigating officer said he had impression that they possessed the documents depicted on their webpage. He continued:

no doubt that the RTÉ programme makers had used photographs of Government
documents taken by researchers from the Pat Finucane Centre who had attended the

“It could be argued that the memorandum in question, the orchestrated in order to achieve maximum effect.”

The decision to take no further action

238. In an email sent to Detective Chief Superintendent Hanna on 21 August 2014

attaching his second report, the investigating officer went so far as to state that 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”.

The judgments below

240. Maguire J concluded that the decision to end the police investigation in reliance

on the investigating officer’s report was seriously flawed, in particular because the
inquiry was too narrowly based. Instead of investigating whether there was evidence
of official authorisation by Lord Carrington or others of unlawful methods of deep
interrogation which involved criminal assaults, the inquiry had erroneously treated the
use of the word “torture” as its guiding light.

241. While a majority of the Court of Appeal affirmed the judge’s conclusion, Sir

Donnell Deeny dissented. He described the decision to end the investigation (at para
31 of the judgment) as “a common sense decision” and said:

“Given the passage of time, the elaborate investigations that have taken place in the past and the paucity of evidence that had come to light from [the] investigation it seems to me a

decision that could not possibly be described as irrational.”

The legal test

242.     In performing their general duty, embodied in section 32(1)(d) of the 2000 Act,

to bring offenders to justice, officers of the PSNI - like all police officers in the United or private individual - to judge whether an allegation that an offence has or may have been committed warrants investigation, if so what investigative steps to take, whether to continue or discontinue an investigation at any stage and whether sufficient evidence has been obtained to charge a suspect or refer a case to a prosecutor to consider whether a person should be charged with a criminal offence. In making such decisions, the police officers concerned are entitled to take into account a wide variety of factors and it is they - and not the courts - who have the constitutional responsibility and the practical competence to evaluate and decide what weight to give to those factors.

243. Given the nature of this discretion, a decision taken by a police officer to close a

criminal investigation is seldom susceptible to legal challenge. Many cases confirm this.
The leading authority is the decision of the House of Lords in R (Corner House
Research) v Director of the Serious Fraud Office (JUSTICE intervening) [2008] UKHL 60;
[2009] AC 756, paras 30-32. At the same time such a decision is not immune from
judicial review, as the case law also confirms. Three recent examples of cases in which
a Divisional Court in England and Wales quashed a decision not to prosecute on
grounds of irrationality are: R (Purvis) v Director of Public Prosecutions [2018] EWHC
1844 (Admin); [2018] 4 WLR 118; R (Torpey) v Director of Public Prosecutions [2019]
EWHC 1804 (Admin); and R (L) v Director of Public Prosecutions [2020] EWHC 1815
(Admin). A decision to end an investigation is similar in nature.

244. A challenge to the rationality of a decision made by a public official may take

one of two forms. It may be argued that the overall outcome of the decision-making
process lies beyond the outer bounds of reasonableness; or it may be argued that,
even if the outcome could not be said to be irrational in itself, a critical step in the
process of reasoning by which the decision was reached was irrational so that the
decision must be taken afresh.

The basis for the challenged decision

245. In the present case it could not be said that the decision of the PSNI made on 17

October 2014 not to take the matter further was, in itself, irrational. Given the passage
of time since the ill-treatment of the Hooded Men in 1971, the fact that those who
authorised the use of the five techniques were either dead or very elderly, our
conclusion in this judgment that the new material publicised by the RTÉ documentary
did not add to a significant extent to what was known already at the time of the
previous investigation in 1978, and the many competing demands on police resources,
a decision could rationally have been made not to undertake a further investigation.
The decision to take no further action was not based, however, on any of the matters
just mentioned. Its basis was stated to be that the investigation by members of the
HET had not identified any evidence to support the allegation that the British
Government authorised the use of torture in Northern Ireland.

246.     In our view, the judge and the majority of the Court of Appeal were right to

conclude that the reliance placed on the investigation and report of the HET officer was irrational and vitiated the decision based upon it. One reason was that given by the judge: the investigation was defective because it was unreasonably narrow. It is apparent from his final report that the investigating officer interpreted his task as
being to see whether there were documents on file which used the word “torture” in conjunction with Lord Carrington or other members of the UK Government. To expect the authorisation of torture to be described so explicitly, however, is both unrealistic
and a misdirection.

247. In referring to the findings of the Parker Committee, the investigating officer quoted the following statement from Lord Gardiner’s minority report:

“We have received both written and oral representations from many legal bodies and individual lawyers from both England and Northern Ireland. There has been no dissent from the view that the procedures [ie the five techniques]

are illegal alike by the law of England and the law of Northern could lawfully or validly have authorised the use of the procedures. Only Parliament can alter the law. The procedures were and are illegal.” (para 10)

On that - clearly correct - footing the relevant question was what ministers who purported to authorise the use of the five techniques knew when they did so: in particular, did they know or were they reckless as to whether the techniques and the

manner in which they were likely to be used would involve the intentional infliction of
severe pain and suffering on those subjected to them? It was not of legal relevance
whether the ministers concerned, or others, characterised such conduct as “torture”
or used more euphemistic language such as “deep interrogation”.

248.     In fact, the Rees Memo did use the word “torture”. The statement of the

investigating officer quoted at para 234 above that Mr Rees “felt he unwittingly” used that word is not substantiated. What the subsequent correspondence showed is that Mr Rees acknowledged that it was preferable to avoid referring to the use of the five techniques as “torture” because to do so contradicted the UK Government’s publicly stated position. There is nothing in the later documents identified by the investigating
officer to suggest that Mr Rees did not believe his original description to be accurate,
as opposed to impolitic. The important point, however, is that the investigating officer
addressed the wrong question. 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.

249. There is a second reason why the investigation report and the reliance placed

on it were seriously flawed. Not only did the report address the wrong question; we
also accept the submission made by Ms Quinlivan on behalf of Ms McKenna and
adopted on behalf of Mr McGuigan that the report shows on its face a lack of fairness
in the officer’s approach and a willingness to base conclusions on partisan assumptions
rather than evidence.

250. This is epitomised by the approach taken to the RTÉ documentary which had

brought the Rees Memo to public attention. As mentioned, the investigating officer
felt able to make outspoken criticisms of the RTÉ documentary in his report. No
reasonable or responsible person would describe a documentary made by a public
service broadcaster in an official report as “a particularly biased, badly researched and
misleading programme”, if at all, without having watched the programme and carefully
considered its contents. Given that it was the source of the allegation that he was
asked to investigate, watching the RTÉ documentary was anyway the obvious place to
begin the investigation. The investigating officer referred in his report and annexed to
it a printed copy of a page on the Northern Ireland News section of the BBC website
which contains a hyperlink to the documentary. He even examined (though apparently
only “at the very last moment”) a page on the RTÉ website which, from his description
of it, is the webpage on which the documentary was (and still is) available to view
online. Yet nowhere in his reports does the investigating officer state that he had
actually watched the programme; and various statements, including his incorrect
assumption that the Rees Memo was the only archive material featured in the
documentary, indicate that he had not. Such a lack of professionalism and impartiality
discredited the work done.

251. The upshot is that the decision taken by the PSNI on 17 October 2014 on the

basis of such a seriously flawed report was irrational and should not be allowed to
stand.

252.     Counsel for the Chief Constable submitted that it was unnecessary to quash the

PSNI’s decision, as the Chief Constable had already decided voluntarily to conduct a further investigation. The judge cannot be faulted, however, for making a quashing order which gave formal expression to his conclusion that the decision challenged
lacked a rational basis and that an entirely fresh consideration of the issues was

required.

16.        Delay: whether the claims to enforce an investigative obligation were

commenced within time

253.     In the case of Mr McGuigan and Ms McKenna, the Secretary of State for

Northern Ireland seeks to raise a limitation argument based on section 7(5) of the HRA which was not addressed by the Court of Appeal. Section 7(5) provides that proceedings are to be brought before the end of “(a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances.” In essence, the Secretary of State argues that by 1978 the UK Government had made it clear that it did not intend any criminal or disciplinary investigation. The release of the new material in the National Archives in Kew from 2003 onwards did not create a new time limit and, in any event, the proceedings were commenced many years after that material had become available.

254. In response, Mr Southey points out that the Secretary of State had not raised

should have been. In any event he submits that the claims were commenced in time as
Mr McGuigan first learned that there was relevant material in the National Archives in

the issue of delay at the stage of obtaining permission for the judicial review, when it broadcast on 4 June 2014.

255. Because we have reached the conclusion that, except in relation to the decision

on 17 October 2014 (paras 223-252 above), the applications for judicial review by Mr
McGuigan and Ms McKenna must fail, we do not need to address these arguments.

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.

JUDGMENT

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

In the matter of an application by Francis McGuigan

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

Judicial Review (Northern Ireland) (Nos 1 and 2)

before

Lord Hodge, Deputy President
Lord Lloyd-Jones
Lord Kitchin
Lord Sales

Lord Hamblen

Lord Leggatt Lord Burrows

JUDGMENT GIVEN ON

15 December 2021

Heard on 14, 15 and 16 June 2021