McQuillan's (Margaret) Application
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2019] NICA 13 |
| Date | 19 March 2019 |
| Court | Court of Appeal (Northern Ireland) |
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Neutral Citation No: [2019] NICA 13
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: STE10661
Delivered: 19/03/2019
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
__________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY MRS MARGARET McQUILLAN
FOR JUDICIAL REVIEW
McQuillan’s (Margaret) Application
_______
Before: Morgan LCJ, Stephens LJ and Sir Paul Girvan
________
Stephens LJ (delivering the judgment of the court to which each member has
contributed)
The layout of this judgment
[1] We divide this judgment into distinct parts.
[2] Part One paragraphs [12] – [21] contains an introduction summarising the
issues for determination and summarising my conclusions.
[3] Part Two paragraphs [22] – [78] sets out the institution responsible for legacy
investigations and the various units within the PSNI set up to conduct those
investigations. At paragraph [22] we identify the PSNI as the institution responsible
for investigations into legacy cases. At paragraphs [23]-[78] we identify the units of
the PSNI which have been, which is now and which may be responsible for
investigation into legacy cases. In those paragraphs we also analyse features of one
of those units which were present on 19 March 2009 when the Committee of
Ministers closed its examination into the issue of independence. We do so in order
to determine whether those features have been maintained.
[4] Part Three paragraphs [79] – [116] sets out the factual background to the
death of the deceased including amongst other matters the investigations that have
been carried out and the discovery of the military logs.
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[5] Part Four paragraphs [117] – [127] sets out a summary of Maguire J’s
judgments dated 3 March 2017 and 13 April 2018.
[6] Part Five paragraphs [128] – [139] contains our consideration and
determination of the appeal in relation to whether Article 2 ECHR applies.
[7] Part Six paragraphs [140] – [176] sets out the legal principles in relation to
investigatory independence and considers decisions of the ECtHR and the
Committee of Ministers.
[8] Part Seven paragraphs [177] – [192] sets out the reforms to policing in
Northern Ireland in order to inform consideration of hierarchical and institutional
independence of the PSNI.
[9] Part Eight paragraphs [193] – [202] contains our consideration and
determination of the issues as to the hierarchical institutional and practical
independence of the PSNI and of the LIB.
[10] Part Nine paragraphs [203] – [207] contains our consideration and
determination of the other grounds of appeal.
[11] Part Ten paragraphs [208] – [215] contains our overall conclusions.
Part One: Introduction
[12] Maguire J delivered two judgments dated respectively 3 March 2017 (“the
first judgment”) and 13 April 2018 (“the second judgment”), in relation to a judicial
review application by Margaret McQuillan seeking, amongst other matters, a
declaration that the proposed further investigation of the death on 8 June 1972 on the
Glen Road, Belfast, of her sister Mrs Jean Smyth, (“the deceased”) by the Legacy
Investigation Branch (“LIB”) of the Police Service of Northern Ireland (“PSNI”)
conflicts with the requirements of Article 2 ECHR on the basis that the LIB lacks the
requisite independence required to perform an Article 2 compliant investigation into
the death. In relation to the earlier investigations there is no evidence that
consideration had been given as to whether the death could have been attributed to
members of the Army. Maguire J held that “the police posture in respect of the
(earlier investigation had) been that it was thought that the deceased met her death
as a result of a shot fired by IRA terrorists.” The further investigation was prompted
by the discovery in June 2014 in the National Archives at Kew in London of Military
Logs which amongst other matters contained contemporaneous records of radio
traffic on the army communication network for the period 8 June - 9 June 1972.
Maguire J found that the information contained in those logs “might lend support to
the view that a solider or soldiers” in sanger KP19 on the Glen Road “was fired on
by a person or persons unknown and that (a soldier) fired a 7.62mm round, claiming
a hit” so that “the new evidence … opens up other possibilities, especially the
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possibility that the death may have been at the hands of a soldier under the control
of the Ministry of Defence (“MOD”).”
[13] The first judgment proceeded on the basis of concessions (“the concessions”)
made in September 2016 by the respondents, including the Chief Constable of the
PSNI (“the Chief Constable”). The first concession was that, despite the death
having occurred on 8 June 1972, some 28 years prior to the coming into force on
2 October 2000 of the Human Rights Act 1998 the military logs constituted new
evidence coming to light within the principles set out by the ECtHR in Brecknell v
United Kingdom [2008] 46 EHRR 957. This required the PSNI “to take further
investigative measures” (see paragraph 71 of Brecknell). That concession was
recorded in the first judgment at paragraph [54]. The second concession recorded by
Maguire J at paragraphs [57] and [86] was that the further investigative measures
were subject to the Article 2 procedural obligation that those responsible for carrying
them out were required to be independent from those implicated in the events.
[14] By Order dated 3 March 2017 Maguire J having considered the question as to
whether the LIB lacked the independence required declared that “the proposed
investigation by the LIB of Mrs Smyth’s death conflicts with the requirements of
Article 2 ECHR as the LIB lack the requisite independence required to perform an
Article 2 (compliant) investigation in respect of this (death).”
[15] The Department of Justice and the Chief Constable, both of whom were
respondents to the judicial review application, have appealed to this court. Two
broad grounds were advanced. The first was advanced on behalf of both the
Department and the Chief Constable. Despite the concessions made before Maguire
J it was argued that an Article 2 investigatory requirement did not arise under the
HRA 1998 and thus the investigation by the LIB did not attract the Article 2
procedural requirement of hierarchical, institutional or practical independence. This
ground required an application to be made to this court for leave to withdraw the
concessions made before Maguire J before the first judgment. The second broad
ground of appeal advanced in the Notices of Appeal solely on behalf of the Chief
Constable was that Maguire J had applied an incorrect legal test of “public
confidence” and “public perception” in arriving at the decision that the LIB lacked
independence rather than focussing upon the institutional, hierarchical and practical
arrangements within the PSNI for investigations. Furthermore, even if the correct
legal test had been applied the judge did not give any or sufficient consideration to
the role which the current institutional structures for policing and the practical
arrangements within LIB would play in assessing public confidence or perceptions.
[16] On 6 December 2017 this court heard submissions as to whether to allow the
Chief Constable and the Department to withdraw the concessions. During those
submissions Mr McGleenan Q.C. who appeared on behalf of the Chief Constable
with Mr McLaughlin informed this court that “it remains the position of PSNI that
they will conduct the review in this case, they will conduct the review into this
death, and are intending to do (so) to Article 2 compliant standards.” This court
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8 cases
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Thomas Fox v The Minister for Justice and Equality, Ireland and The Attorney General
...following year. Its work was transferred to the Legacy Investigation Branch (LIB) of the PSNI. In the case of In Re Margaret McQuillan [2019] NICA 13. the Court of Appeal concluded that the LIB did not have practical independence in respect of the conduct of legacy investigations for the pu......
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Eilish Morley (on her own behalf as personal representative of the estate of Eoin Morley (deceased)) and The Ministry of Defence and Peter Keeley and The Chief Constable of the Police Service of Northern Ireland and The office of the Police Ombudsman for Northern Ireland
...spells out what is required by Article 2 (if anything) when there is a claim for damages and Article 2 is engaged. Both Re McQuillan [2019] NICA 13 and Flynn were claims involving the Article 2 investigative obligation. However, the issue of how Article 2 should be applied to the Deceased’s......
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McGuigan’s (Francis) and McKenna’s (Mary) Application
...Enquiries Team (“HET”) which by then was no longer practically independent of the PSNI for the reasons set out in McQuillan’s Application [2019] NICA 13. The learned trial judge set out the nature of the investigation at [123]-[135] of his judgment and noted the conclusion of the investigat......
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Lavery's (Robert) Application v Public Records Office NI
...The case was reviewed inter – partes on 04 September 2019. (g) On 21 November 2019 the COA gave leave to appeal to the UKSC in McQuillan [2019] NICA 13. (h) Next, a substantive inter – partes leave listing was scheduled for 28 November 2019. All parties provided written submissions in advan......
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