McQuillan, Re Judicial Review

Factual and Procedural Background

The applicant is the sister of the deceased, who was fatally shot at a location in The City in June 1972 at age 24. The deceased had a young daughter and was living with her parents at the time. Initial investigations by the Royal Ulster Constabulary ("RUC") were limited and did not thoroughly explore the circumstances of the death. New evidence emerged in 2014, notably military logs from the Ministry of Defence ("MOD"), which cast doubt on the original understanding that the death was caused by paramilitary actors and raised the possibility of involvement by soldiers under MOD control.

The applicant contends that the Police Service for Northern Ireland ("PSNI") is not an independent investigator in this case due to its institutional connections with the MOD and the historical failures of prior investigations. The applicant seeks a judicial declaration that further investigation by the PSNI would be unlawful.

After a contested hearing, the court granted leave for judicial review in December 2015. The court emphasized that its role is not to determine the factual truth of how the death occurred but to assess whether it would be lawful for the PSNI to conduct further investigation given the circumstances.

The initial police investigation involved statements from witnesses present at the scene and examination of the deceased's vehicle and the taxi in which she was transported. An inquest in 1972 returned an open verdict. Subsequent reviews, including by the Historical Enquiries Team ("HET") from 2006 to 2008, did not significantly advance the investigation or explore military involvement.

In 2014, military logs containing contemporaneous radio traffic records from the night of the death were discovered. These logs suggest multiple shots were fired and indicate military presence and activity near the scene, including references to the Military Reaction Force ("MRF"). The PSNI's Legacy Investigation Branch ("LIB") has since taken responsibility for reviewing the case.

The applicant challenges the independence of the LIB and the PSNI to conduct a lawful Article 2 compliant investigation into the death.

Legal Issues Presented

1. Whether the PSNI, through its Legacy Investigation Branch, is sufficiently independent to conduct a further investigation into the death of the deceased under Article 2 of the European Convention on Human Rights.
2. Whether the prior investigations and reviews, including those by the RUC and HET, were conducted with the requisite independence and thoroughness.
3. Whether the passage of time and the emergence of new evidence (military logs) revive the state's obligation to investigate and impose requirements on the independence and impartiality of the investigating body.

Arguments of the Parties

Applicant's Arguments

• The original RUC investigation was perfunctory, failing to consider multiple shots, possible military involvement, or to obtain relevant military or police documentary evidence.
• The HET review replicated many of the original investigation's failings, including reluctance to re-interview witnesses and failure to investigate military involvement.
• Academic research and reports by Her Majesty's Inspectorate of Constabulary ("HMIC") revealed systemic problems with the HET's independence, particularly in cases involving military personnel, including overly favourable treatment of soldiers and inadequate handling of intelligence.
• The Legacy Investigation Branch ("LIB"), as part of the PSNI, inherits these independence concerns, especially as the HET has been wound up and its functions absorbed into the PSNI.
• Public confidence in the investigation is undermined by the historical failures and the institutional connections between the PSNI and security forces, including the MOD.
• Reports by the Joint Committee on Human Rights have stated that the LIB cannot satisfy Article 2's independence requirements.
• Additional concerns include incomplete disclosure of documents (e.g., the post mortem report) and evidence of Special Branch involvement, which raise questions about impartiality.

Respondent's Arguments

• The PSNI accepts the obligation to investigate further in light of new evidence and acknowledges the requirement for independence under Article 2.
• The PSNI and LIB are institutionally distinct and independent from the MOD and former RUC, with measures such as the Police Ombudsman, Northern Ireland Policing Board, and Department of Justice oversight.
• Reliance is placed on Strasbourg jurisprudence, including Brecknell v United Kingdom, which recognized the institutional independence of the PSNI from the RUC.
• The PSNI has implemented reforms addressing HMIC concerns, including conflict of interest declarations, staff vetting, and intelligence handling procedures.
• Factual submissions emphasize that initial witness statements did not support multiple shots or police involvement, and the timing and trajectory of shots recorded in military logs do not align with MRF involvement.
• The PSNI maintains that the LIB can conduct an effective and independent investigation compliant with Article 2.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on the paramount importance of public perception of independence rather than requiring proof of actual bias by individuals within the PSNI or LIB. The court acknowledged the historic failings of the original RUC investigation, which was perfunctory and failed to consider military involvement or obtain relevant documentary evidence. The court found some of the applicant's criticisms of the initial investigation persuasive, concluding that there was a real possibility of unconscious bias and lack of independence at that time.

Similarly, the HET review was found to have replicated many of the original investigation's deficiencies, notably failing to explore military involvement or seek out relevant records. The court noted that academic research and HMIC reports exposed systemic issues within the HET, including differential treatment of military cases and inadequate safeguards for independence.

The court considered that the absorption of the HET's functions into the LIB, an integral part of the PSNI, does not alleviate concerns about independence. Given the history, a fair-minded and informed observer would perceive a real possibility of institutional bias or lack of independence in the PSNI's current investigation of the death.

The court reviewed the respondent's arguments regarding reforms and institutional distinctions between PSNI and RUC, but found that the past failings and ongoing concerns identified by HMIC and others meant that public confidence would not be maintained if the PSNI/LIB were to investigate.

While recognizing the PSNI's institutional independence post-2001 as established in Brecknell, the court held that this does not preclude the possibility that in particular cases, especially involving potential military involvement, the PSNI may lack the requisite independence.

The court also noted that the Council of Ministers' views and Strasbourg jurisprudence do not prevent the court from reaching its conclusions based on the facts and evidence before it.

Holding and Implications

The court grants a declaration that the proposed investigation by the Legacy Investigation Branch of the PSNI into the deceased's death does not meet the independence requirements mandated by Article 2 of the European Convention on Human Rights.

The direct effect of this ruling is that the PSNI, through the LIB, is currently not a lawful investigative body for this case due to perceived lack of independence. The court does not resolve the factual issues or direct which body should conduct the investigation but emphasizes the necessity of an independent, impartial, and autonomous investigative agency free from institutional ties to the MOD or security forces implicated.

No new legal precedent is established beyond the application of existing Article 2 jurisprudence to the facts of this case.