Genuine Connection and Investigation Independence in Human Rights Judicial Review: McQuillan v PSNI

Introduction

The United Kingdom Supreme Court delivered a landmark judgment on December 15, 2021, in the case of McQuillan, McGuigan and McKenna, Re Application for Judicial Review (Rev1) ([2021] WLR(D) 640), adjudicated by Lords Hodge, Lloyd-Jones, Sales, and Leggatt, with agreement from Lord Kitchin, Lord Hamblen, and Lord Burrows. This case delves into the intricate interplay between historical police investigations during the tumultuous period known as the Troubles in Northern Ireland and the obligations imposed by the Human Rights Act 1998 (HRA), specifically concerning the European Convention on Human Rights articles 2 and 3.

The appellants, including Ms. Margaret McQuillan, Mrs. Jean Smyth's sister, and Mr. Francis McGuigan along with Ms. Séan McKenna, challenged the efficacy and independence of investigations conducted by the Police Service of Northern Ireland (PSNI) into tragic events that transpired in the early 1970s. Central to their appeal were questions regarding the requirement of a “genuine connection” between the historical incidents and the enforcement of human rights obligations post the enactment of the HRA, as well as the independence of investigations mandated by articles 2 and 3 of the Convention.

Summary of the Judgment

The Supreme Court examined two principal appeals against previous court decisions in Northern Ireland. The first concerned the death of Ms. Jean Smyth in 1972 and the subsequent investigation by the PSNI, which Ms. McQuillan claimed lacked independence and effectiveness. The second appeal involved the ill-treatment of fourteen men, known as the Hooded Men, in 1971, with Mr. McGuigan and Ms. McKenna alleging that the UK Government had authorized the use of torture.

The Court focused on two key issues:

Whether a genuine connection exists between the historical events and the HRA’s enforcement dates, necessitating investigations under articles 2 and 3.
Whether the PSNI’s investigations into these historical events satisfied the required standards of independence.

Ultimately, the Supreme Court concluded that the genuine connection test was not satisfied due to the extensive lapse of time since the events (over two decades before the HRA's commencement). Additionally, the Court found that PSNI's investigations, particularly the decision made on October 17, 2014, lacked rationality and should be quashed, thereby upholding certain previous judicial decisions but dismissing others based on these findings.

Analysis

Precedents Cited

The judgment referenced several crucial cases that form the bedrock of human rights investigation obligations:

Brecknell v United Kingdom (2008): Established that new evidence post-HRA enactment can revive investigative obligations under articles 2 and 3, provided it meets the genuine connection or Convention values tests.
Silih v Slovenia (2009) & Janowiec v Russia (2014): Clarified the temporality of obligations, emphasizing that while investigative duties are detachable from substantive rights, they are limited by the genuine connection and Convention values tests.
In re McCaughey (2011) & Re Finucane (2019): Addressed the interaction between domestic laws under the HRA and international obligations, cementing the principle that the HRA does not retroactively apply beyond its commencement date.
Porter v Magill (2001): Introduced the test for apparent bias in adjudicative bodies, which the Court of Appeal controversially applied to non-adjudicative investigations.
Tunç v Turkey (2016): Provided detailed guidance on assessing the independence and effectiveness of investigations under articles 2 and 3.

Legal Reasoning

The Court meticulously navigated the legal landscape surrounding human rights obligations post-HRA enactment. A pivotal aspect was determining whether the events from the early 1970s should fall under the jurisdiction of the HRA, which came into force in 2000. This involved dissecting the "genuine connection" test laid out in Brecknell, which requires:

A reasonable temporal proximity between the event and the legislative act initiating the obligation.
The necessity for a significant portion of the investigative process to occur post the critical date established by the HRA.

Given that the incidents occurred nearly thirty years before the HRA's introduction, the Court found the genuine connection criteria unmet. Furthermore, it scrutinized the independence of the PSNI’s investigations, drawing from Tunç and the requirement for both institutional and practical independence in investigations. The Court determined that the PSNI’s decision to halt investigations was primarily based on a flawed and biased report, rendering the decision irrational.

Impact

This judgment sets a significant precedent in the realm of human rights judicial review within the UK. By reinforcing the temporal limitations of the HRA and underscoring the necessity of a genuine connection for historical cases, the Court delineates clear boundaries on the enforceability of human rights obligations concerning past events. Additionally, it emphasizes the paramount importance of independent and unbiased investigations, ensuring that procedural obligations under articles 2 and 3 are met with utmost integrity.

Future cases involving historical human rights abuses will be heavily influenced by this ruling, particularly in determining the applicability of the HRA to events predating its enactment and in assessing the effectiveness and independence of public inquiries.

Complex Concepts Simplified

To better understand the implications of this judgment, it is essential to demystify some legal terminologies:

Genuine Connection Test: A legal standard used to determine if there is a sufficient link between a pre-HRA event and the post-HRA obligations to enforce human rights, allowing courts to revisit historical injustices.
Articles 2 and 3 of the ECHR: Protections under the European Convention on Human Rights that safeguard the right to life and prohibit torture and inhuman or degrading treatment or punishment, respectively.
Human Rights Act 1998 (HRA): A pivotal UK law that incorporates the European Convention on Human Rights into domestic law, allowing individuals to seek redress in UK courts for violations of Convention rights.
PSNI: The Police Service of Northern Ireland, responsible for policing in Northern Ireland and investigating crimes, including those related to historical events like the Troubles.
Infallibility of Public Inquiries: The principle that investigations conducted by public bodies must be free from bias and hierarchy to ensure fair and effective outcomes.

Conclusion

The Supreme Court's decision in McQuillan v PSNI reinforces the boundaries of human rights enforcement concerning historical events within the UK. By affirming the absence of a genuine connection due to the significant lapse of time and highlighting the necessity for independent investigations, the Court underscores the HRA's temporal and procedural confines. This judgment not only curtails the scope for judicial intervention in deeply historical human rights abuses but also accentuates the imperative for integrity and impartiality in police investigations. Moving forward, this ruling will serve as a cornerstone in adjudicating similar cases, balancing the pursuit of justice with the principles of legal certainty and fairness inherent in the UK's human rights framework.