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  • Writer's pictureRobert Spicer


Human rights


Case In re McQuillan, McGuigan and McKenna [2021] UKSC 55

Facts The appeals were as follows: · The death by shooting of Jean Smyth in 1972. No-one was prosecuted but in 2014 military logs were disclosed which gave rise to the possibility that she might have been killed by a British soldier. The Police Service of Northern Ireland (PSNI) proposed a further inquiry by its Legacy Investigation Branch. The deceased’s sister applied for a declaration that the Legacy Investigation Branch was not sufficiently independent.

· Serious ill-treatment by the RUC in 1971 of 14 men, known as the hooded men. In 1978 the European Court of Human Rights found that the ill-treatment had been authorised at the highest level. It constituted inhuman and degrading treatment under article 3 of the Convention but did nit amount to torture. In 2014 the Irish national broadcasting service referred to a 1977 document from the home secretary to the prime minister. This referred to the treatment of the hooded men as torture and to its approval. This document was not before the European Court.

Decision 1. The PSNI could not be required to conduct new investigations into the death of Jean Smyth or the treatment of the hooded men despite the emergence of new evidence which raised the possibility that Smyth had been killed by the British Army and that the ill-treatment had been authorised by the British government. 2. It was likely that the treatment of the hooded men would be characterised as torture by the standards of 2021. But the European Court had ruled that it was not. The new material did not add significantly to the state of knowledge which existed in 1978. 3. In relation to the challenge to the independence of the PSNI, there was nothing to suggest that it would not be possible to assign appropriate officers to carry out further investigations to a proper standard.

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