One date to rule them all: McQuillan, McGuigan and McKenna  UKSC 55
7 January 2022
In one of its final decisions of 2021, McQuillan, McGuigan and McKenna, the UK Supreme Court addressed challenges to the effectiveness of police investigations into events which took place during the Northern Ireland conflict. The European Court has long maintained that the right to life (Article 2 ECHR) and the prohibition upon torture and inhuman and degrading treatment (Article 3 ECHR) carry with them positive obligations on the state to conduct effective investigations. These “legacy” cases not only draw the Courts into debates over some of the most contentious aspects of the Northern Ireland conflict, in particular the involvement of state agents in killings and the infliction of serious harms upon individuals, but they also pose questions about how human rights law applied in the context of Northern Ireland as a jurisdiction before the enactment of the Human Rights Act 1998.
For reasons of economy, this post will focus on the facts of the McGuigan and McKenna elements of this litigation, which concerned the ill-treatment of detainees who had been interned in the 1970s (while also exploring broader questions which concerned all elements in the litigation). The scope of this ill-treatment, involving the subjection of internees to the infamous “five techniques” (including hooding of detainees to disorient) as part of interrogations, has long been known. Indeed, the resultant case of Ireland v United Kingdom remains a key turning point in the development of the European Convention on Human Rights, demonstrating that the Strasbourg Court would be willing to uphold human rights claims against an important member state even as it sought to tackle political violence. In that decision, although the Court found that the five techniques breached Article 3 ECHR, it discussed them in terms of inhuman and degrading treatment and not torture. Releases of documents by the National Archives (highlighted in a 2014 RTÉ documentary), however, showed UK Cabinet Ministers discussing the extent of the interrogation practices when they were taking place, and led to calls for fresh police investigations into whether there has been a coverup.
An extensive body of decisions, both in the domestic courts and Strasbourg, has highlighted inadequacies with regard to the investigations of allegations against state actors in the context of the Northern Ireland conflict, and so, when the Police Service of Northern Ireland (PSNI) closed its investigations into these allegations based on the released archive materials, officers must have been aware that their decision would be closely scrutinised and it can have come as little surprise that the case of the “Hooded Men” would once again come before the Courts. The Northern Ireland Court of Appeal nonetheless found that there were serious shortcomings in the PSNI investigation and good reason to quash the decision to call a halt to it. The majority found, at paragraph 114, that it had been focused on the unduly narrow question of ‘whether there was express information given to a particular Minister of the application of torture’. In light of the seriousness of the issues at stake for a ‘modern democracy’ this approach was irrational.
There were, however, important reasons for both the PSNI and the claimants to want the Supreme Court to consider this outcome. While the litigation had been ongoing, the Supreme Court had decided in Finucane that the temporal scope of Article 2 and 3 ECHR effective investigation obligations extended beyond the date on which the Human Rights Act 1998 entered effect in the UK’s legal systems in October 2000. In Lord Kerr’s leading decision in that case, the obligation extended back to the events of Pat Finucane’s murder in the late 1980s. Those who are familiar with some of the salient decisions of the Strasbourg Court on this point will recall that in Šilih v Slovenia, the Court found that the investigative obligation under Article 2 was detachable from its substantive obligation, capable of giving rise “to a finding of a separate and independent ‘interference’” and capable of binding a relevant member state in respect of a death occurring before it had ratified the ECHR. These observations were further refined by the Strasbourg Court in Janowiec v Russia, which featured deaths which were not only pre-ratification (from Russia’s perspective) but also pre-ECHR.
The claimants in McQuillan, McGuigan and McKenna, in a line of argument which would reshape the legal basis of legacy investigations for much of the Northern Ireland conflict, sought to have these obligations extended to the events of the early 1970s because the activities of the UK authorities in that period had been so at odds with the ECHR values it should have been maintaining as a rights-respecting democracy. The authorities, however, have been equally eager to curtail what are often regarded as burdensome historical investigation obligations.
The key question for the Supreme Court was that of the critical date – the date at which ECHR obligations bound authorities at domestic law. The answer to this question had not been settled in previous decisions of the Supreme Court (for example, McCaughey or Keyu). In McQuillan, McGuigan and McKenna, the reach of the mirror principle, which seeks to keep pace with decisions of the Strasbourg Court as far as possible, was deemed to have arrived at its limits in determining the critical date in domestic law. The critical date at Strasbourg is 1966, when the UK accepted the right of individual petition under the ECHR. In domestic law, however, the Supreme Court has now unanimously fixed the critical date at October 2000, when the Human Rights Act 1998 came into force. This had an immediate impact on the McQuillan, McGuigan and McKenna claims, where the triggering events had happened decades before Pat Finucane’s murder, which had already occurred more than 10 years before October 2000. It meant that the claimants’ arguments invoking the Brecknell test – obliging further investigative approaches in a previously investigated case, with a sufficiently plausible or credible new allegation, evidence or information – fell in their entirety.
Like the Northern Ireland Court of Appeal, the Supreme Court acknowledged the significance of the subject matter of these cases. At paragraph 186 the Court accepted that McGuigan and McKenna concerned the UK’s security forces being involved in practices which would today be recognised as torture. All seven Justices recognised that, in the words of Lord Hoffmann in A (No 2), the European Court had, in Ireland v United Kingdom,
delicately refrained from characterising various interrogation techniques used by the British authorities in Northern Ireland as torture.
But this delicacy towards the United Kingdom in 1978 was, and remains, significant (at paragraph 190), presenting
the difficulty that in 1978 the Strasbourg Court held that the treatment to which the Hooded Men were subjected in 1971 was not to be characterised as torture. Whether it would be characterised as torture by the standards of 2021 is, in our view, strictly irrelevant to the application of the Convention values test.
The Court did not, in reaching this conclusion, need to depart from its decision in Finucane, but at the very least it was marking out the events of the murder of Pat Finucane in 1989 as being as far as the investigation obligation could be stretched (no matter how serious the allegations against the state).
Although this discussion took up much of the judgment, the Supreme Court was still persuaded of the need to quash the decision to curtail the investigation, but on even narrower grounds than those accepted by the Northern Ireland Court of Appeal. The archival materials had revealed that Merlyn Rees, Secretary of State for Northern Ireland between 1974 and 1976, prepared a memo for the Prime Minister in 1977 in which he acknowledged that
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.
The Court found, at paragraph 248, that the efforts in the investigation to sweep this comment under the table were unacceptably lax;
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.
Rees was not moving away from the language of torture because he did not believe the five techniques amounted to torture, but because he was concerned about the repercussions of discussing events in those terms.
This shortcoming was crucial to the Supreme Court accepting that curtailing the investigation was unlawful. It is worth, however, emphasising the narrowness of this position. The Supreme Court explicitly recognised that there were good reasons for not investigating in this case, but that the PSNI had not properly based its decision on these (at paragraph 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 … had not identified any evidence to support the allegation that the British Government authorised the use of torture in Northern Ireland.
It is, of course, in the nature of quashing a decision on such a basis that the same end can be reached if the investigation is reopened and then once again closed, but this time for valid reasons. And the Supreme Court can be said to be actively supplying such reasons to the PSNI. This victory in the Supreme Court will thus provide little practical support for the claimants’ ongoing efforts to have the circumstances of their case reinvestigated.
On one view, the question of the critical date allows for only one answer – if broad ECHR obligations in domestic law arose because of the Human Rights Act, then such obligations cannot (generally) be asserted in respect of a time before the Act’s existence. The ten-year extension beyond the October 2000 date opened by European Court jurisprudence in a limited range of cases is therefore tolerated only grudgingly, and the Supreme Court’s own dart beyond that time frame in Finucane (unanimous and recent as that decision was) is now being received with the utmost scepticism. This new dispensation, so different from the attentiveness to the seriousness of the implications of these cases for the United Kingdom as a rights-respecting democracy displayed in Finucane, is evident in much of the Supreme Court’s judgment in McQuillan, McGuigan and McKenna (paragraphs 147-168).
In reaching this conclusion, the Court has also shut the door on most, if not all, inconclusive investigations into suspicious deaths, horrific injuries and violent offending that characterised much of the Northern Ireland conflict before 1990 (i.e. 10 years before the Human Rights Act came into force). This period of some two decades includes, by some margin, the deadliest years in the entire conflict. Moreover, the Supreme Court’s decision comes at a fraught time in legacy matters. With the UK Government having floated drastic legislative proposals to end criminal prosecutions, existing investigative processes and ‘judicial activity’ in civil cases relating to the conflict, McQuillan, McGuigan and McKenna appears ominously significant. The Supreme Court, perhaps taking its cue from these legislative plans, would appear to be taking its own steps to draw limits around the legal basis for legacy litigation.
Colin Murray is Reader in Public Law at Newcastle Law School. Anurag Deb is a practitioner in civil and public law at KRW Law LLP in Belfast.