The cases concerned two different questions about police investigations into events during the Troubles. Did the Human Rights Act require a further investigation decades later? And was the police decision on a particular allegation lawful? The Supreme Court rejected the claims of a Convention duty but upheld the quashing of one decision on ordinary judicial review grounds.
Jean Smyth was shot and killed in Belfast in 1972. Decades later, newly discovered military logs suggested a possible line of inquiry into military involvement. The Police Service of Northern Ireland proposed a review by its Legacy Investigation Branch. Ms Smyth’s family questioned whether it would be sufficiently independent.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The second set of proceedings concerned the men subjected to five interrogation techniques in 1971, known as the Hooded Men. In 1978 the European Court of Human Rights held that the treatment had been inhuman and degrading. Material made public much later raised questions about ministerial authorisation. In October 2014 the police decided against a further investigation.
Temporal limits on the investigative obligation
Articles 2 and 3 of the European Convention on Human Rights imply an obligation to investigate certain deaths and allegations of ill-treatment. Under the Human Rights Act 1998 that obligation binds public authorities only from 2 October 2000. Where the triggering event occurred before that date, the Strasbourg case law requires either a genuine connection (a reasonably short interval, normally no more than ten years and exceptionally up to about twelve, together with a substantial part of the investigation occurring or required after the critical date) or, in extraordinary cases, that the event negated the very foundations of the Convention. New material may revive an investigative obligation only if one of those tests is also met.
The critical date for a claim under the Human Rights Act was 2 October 2000. Ms Smyth’s death occurred 28 years earlier. A significant new line of inquiry did not overcome that interval for the genuine-connection test. In the Hooded Men proceedings the decisive question was whether the new evidence added enough to what was already known to revive an investigative obligation under the Brecknell test. It did not. The Court therefore did not need to decide the Convention-values issue.
Independence and other domestic challenges
The Court considered independence on the hypothesis that a Convention obligation applied. Institutional separation from the RUC and the military was only part of the inquiry. In Ms Smyth’s case the Chief Constable had not explained how the proposed investigation would secure practical independence. In the Hooded Men case the Court of Appeal had erred by concluding that a police investigation would lack practical independence.
There is no common-law duty, and section 32 of the Police (Northern Ireland) Act 2000 creates no duty, equivalent to the Convention investigative obligation. A written answer by the Chief Constable to the Policing Board in July 2014 merely restated the general statutory duty to investigate crime and created no legitimate expectation of a Convention-standard inquiry. The 17 October 2014 decision was nevertheless irrational. The investigating officer had treated the presence or absence of the word “torture” as decisive, had made partisan assumptions about the RTÉ documentary without watching it, and had addressed the wrong legal question. The decision based on that report was therefore quashed.
Verdict: The Supreme Court allowed the appeals of the Chief Constable, the Secretary of State and the Department of Justice. It upheld the quashing of the police decision of 17 October 2014 concerning the Hooded Men and otherwise dismissed the judicial review applications.
