We are delighted to welcome this guest post from Fidelma O’Hagan, Committee on the Administration of Justice. Fidelma can be reached at firstname.lastname@example.org.
On 27 October 2017, Mr Justice Maguire handed down judgment in favour of the applicants, Mary McKenna and Francis McGuigan, and quashed the 2014 PSNI decision to not progress an investigation to identify and, if appropriate prosecute anyone found responsible for criminal acts during the interrogation of the Hooded Men.
The Hooded Men, 14 in total, are so named due to one of the five methods of ‘interrogation in depth’ they were subjected to during their internment in1971. The use of these methods of interrogation was the subject of two Committee inquiries, Compton and Parker, and the first European Court of Human Rights (ECtHR) inter- State case decision, Ireland v UK, which held it to be a breach of Article 3 of the European Convention on Human Rights (EHCR) on the grounds that it was inhumane and degrading, but that it did not meet the higher threshold of torture.
After the ECtHR case concluded in 1978, this issue lay dormant for many years until it was brought to the public’s attention again via an RTÉ documentary in June 2014. Material released into the National Archives in Kew in 2003, discovered by researchers in 2013, demonstrated that internal UK governmental advice was that the methods used amounted to torture and that it had been authorised by a Government Minister. The discovery of this new material, and the question of whether the ECtHR had been misled with highly relevant material being withheld from it, forms the basis of an application by Ireland to the ECtHR seeking a re-opening of its 1978 seminal decision. That matter is still pending.
In July 2014, the NI Policing Board sought information regarding the steps being taken by the PSNI into the allegations posed by the RTÉ documentary, in particular, that of ministerial authorisation. In a written response, the Chief Constable stated that the allegation would be assessed and where there was evidence of criminal behaviour, prosecutions would be considered. The resultant inquiry carried out by the PSNI appointed investigator, described by Mr Justice Maguire in his judgment as “narrowly based ” and one which “lacked focus”, concluded that the there was no evidence to support the allegation that the British Government authorised the use of torture in Northern Ireland and the matter should be taken no further. Senior PSNI officers decided in October 2014 to end the inquiry on that basis.
There were a number of issues before the Court, but the majority of the legal reasoning in this judgment focuses on the ‘Convention issue’. Articles 2 and 3 of the ECHR impose a positive duty on a State to carry out an effective investigation into a case involving the actions of State agents which is capable of leading to the identification and prosecution of those responsible. In this judicial review, the Court was tasked with considering the lawfulness of the October 2014 PSNI decision, as well as the lawfulness on the part of the PSNI Chief Constable, the Department of Justice NI and the Northern Ireland Office in their ongoing failure to order and ensure an Article 2 compliant investigation in the case of Mary McKenna whose father died as a result of the torture he was subjected to, and an Article 3 compliant investigation in the case of both applicants.
In determining the Convention issue, the judgment first considers whether the ECtHR would itself find a breach of the procedural obligation to carry out an effective investigation, before turning to the issue of whether a judge sitting in a domestic court can now find such a breach.
Regarding the first question, Mr Justice Maguire refers to the development of ECtHR jurisprudence in relation to the evolution of the procedural obligation aspects contained in both articles. He cites the 1995 Grand Chamber decision in McCann v UK (1995) 21 EHRR 97, where the Court held that Article 2 impliedly requires “some form of effective investigation” where a person’s death was the result of the use of force by State agents. He refers to the more recent case of Al- Nashiri v Poland (2015) 60 EHRR 16 as authority for the proposition that the same standard applies in relation to Article 3, where person has been subjected to torture or inhumane, cruel and degrading treatment and punishment.
Domestic guidance sets out that where a State is implicated in torture, it will only enjoy a narrow margin of appreciation in terms of the level of scrutiny to be applied when conducting an investigation. In applying this guidance to the facts of the case before him, Mr Justice Maguire states:
“This suggests that in a case of the sort with which this judgment is concerned, even if the practice at issue is viewed as less than torture, there is unlikely to be a substantial area of leeway in the way on which the State is required to perform its procedural obligation. “ 
However, a significant issue for the Court revolved around the passage of time involved. The events which gave rise to the applicants’ complaints took place in 1971 and the current proceedings were initiated in the High Court in 2015. The question for the Court was the extent to which a domestic court can apply the Human Rights Act 1998 (HRA) to events prior to the act coming into effect in October 2000, the ‘critical date’ in this case. The judgment takes us through the conflicting legal authorities on this point.
In In Re McKerr  1 WLR 807 , a case involving a death at the hands of the police which had occurred before the critical date, the House of Lords considered whether the Article 2 duty to investigate was engaged in domestic law. Determining that there is a clear temporal cut off point, the Lords unanimously held that the procedural obligation to investigate did not extend to a death which took place before the critical date and that it does not therefore have retrospective effect in domestic law.
When Re McKerr was being considered, the procedural obligation was not viewed as a free standing duty but rather as something which was inextricably linked to the death itself. Therefore the date of the death was critical to the issue of whether Article 2 was engaged. This factor influenced the reasoning of the House of Lords in Re McKerr. However, this view shifted following the decision of the ECtHR in Silih v Slovenia (2009) 49 EHRR 37 which determined that the procedural obligation in Article 2 was a “separate and autonomous duty” capable of being detached from the death itself, and engaged even in circumstances where the death took place before the State ratified the ECHR. In order to ensure legal certainty and prevent the obligation being open-ended, the ECtHR determined that there must be a ‘genuine connection’ between the death and the critical date, where either a significant proportion of the investigative procedure will have been or ought to have been carried out after the critical date, or the connection itself will be the need for the fundamental values of the Convention to be protected “in a real and effective manner.”
In In Re McCaughey  1 AC725 the relevant death took place in 1990, the matter came before the Coroner’s Court in 1994, with the coronial hearing being delayed until 2009. Applying the genuine connection test in Silih, the Supreme Court held by a majority decision that the inquest which was to be conducted gave rise to a free standing obligation, thereby ensuring compliance with the procedural requirements of Article 2. Lord Phillips, giving the lead judgment, stated that where it is decided that an inquest will be held, the ‘mirror principle’ must apply and “this will only be achieved if claimants are able to bring in this jurisdiction claims that they would otherwise be permitted to bring before the Strasbourg court.”
The ECtHR further refined the relevant time period within the genuine connection criteria in Janowiec v Russia  58 EHRR 30, where the deaths occurred 58 years before the entry into force of the ECHR in Russia. Finding that the time lapse in that case was too long, the Court held that to satisfy the genuine connection test that there must be, inter alia, a reasonably short period of time, not in excess of 10 years, between the triggering event and ratification. It also introduced a Convention values test for those “extraordinary situations” which do not satisfy the genuine connection test, “where the need to ensure the real and effective protection of the guarantees and the underlying values of the Convention would constitute a sufficient basis for recognising the existence of a connection.” This test could be satisfied if the triggering event “was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundations of the Convention”
Applying the genuine connection test to the facts of the case before him, noting the time lapse between the triggering events in 1971 and the coming into force of the HRA, Mr Justice Maguire finds that the distance in time of over 40 years is simply too long. He then considers the balance of the investigation process between that carried out prior to the critical date and that carried out after it and finds that the majority of the investigative measures took place in the 1970s, with very little in the way of investigative measures taking place since 2014. Whilst there was a concentration of measures in relation to the events that took place in the 1970s, it was all prior to the critical date and the matter then lay dormant until the new materials were exposed in the 2014 RTÉ documentary. Therefore this case failed the genuine connection test.
Turning to the Convention values test and noting a lack of Strasbourg Jurisprudence to assist the Court, Mr Justice Maguire set out the relevant facts of case before him: the State established a secret interrogation centre which employed interrogation in depth against those interned therein; public reaction to this resulted in the establishment of two inquiries; what happened to the Hooded Men became the subject of inter-State proceedings before the European Commission of Human Rights (which found a breach of article 3, including torture)and the ECtHR (which found a breach of article 3, excluding torture). Finding that the guarantees and fundamental values enshrined in the ECHR required protection in this case, and therefore recognition of the existence of a connection, the Court held that the Convention values test was met:
..it seems likely to the court that if the events here at issue were to be replicated today the outcome would probably be that the ECtHR would accept the description of torture in respect of these events as accurate. 
The ECtHR’s ‘Brecknell doctrine’ applies where new and credible information comes into the public domain which is relevant to the circumstances of the death and identification, prosecution or punishment of the perpetrators. Where it applies after the critical date and the Convention values test is considered to be met, it may impose a fresh Article 2 procedural obligation to investigate. In considering the application of the Brecknell test in light of his finding that the Convention values test is met, Mr Justice Maguire held that the material exposed in the 2014 RTÉ broadcast revived the Article 2 and 3 obligations:
The court concludes that it is likely the ECtHR would regard these cases as ones in which the Articles 2 and 3 obligations remain to be fulfilled. 
However, turning to the issue of the effect of the decision in McKerr that the Article 2 procedural duty does not have retrospective effect domestic law, Mr Justice Maguire refers to the decisions of the Court of Appeal of England and Wales in R (Keyu & Others) v Secretary of State for Foreign and Commonwealth Affairs and another  EWCA Civ 312 and the Court of Appeal NI in In Re Geraldine Finucane  NICA 7 which both held that McKerr remains good law. In terms of overturning that decision, Kay LJ was clear in 2014 in Keyu that “any attempt to move in that direction would now be a matter for the Supreme Court rather than for us.”
The triggering events in the case of the Hooded Men considerably pre-date the coming into force of the HRA in October 2000. Notwithstanding the fact that the Court found in favour of the applicants in the Convention values test, when considering the conflicting case law on the domestic application of the ECHR, the Court cites McKerr to be the relevant governing authority “for the time being”, and finds in favour of the respondents in relation to the Convention issue.
Mr Justice Maguire did however provide us with his obiter view in relation to question of whether the PSNI is, on the facts of this case, sufficiently independent to carry out future Articles 2 and 3 compliant investigations. His opinion is that it is not: “there is a likely breach of the independence if the PSNI decide itself to investigate this case.”
The applicants were also successful in their argument that the October 2014 PSNI decision not to pursue the issue of identifying and, if appropriate, prosecuting those responsible for criminal acts, was irrational. Finding that decision to be “seriously flawed”, Mr Justice Maguire declared that it should be quashed and a fresh decision made. The Court stated that it would not be prescriptive as to how the question regarding an investigating should be taken forward. It is our concern that the PSNI will approach this as ineffectively as it already has done to date and the applicants will have to wait a further unreasonable period of time for a lawful outcome.
The issue of the application of the procedural obligations in domestic law in the case of the Hooded Men has not been concluded. As referred to above, other courts have considered themselves bound by the decision of the House of Lords in McKerr, as will the Court of Appeal NI. In this situation where there is a point of law of general public importance, there is the possibility of a ‘leapfrog appeal’ which would enable the matter to bypass the Court of Appeal and move directly to the Supreme Court. This process avoids the time and resources involved in appealing to a court which is also bound by a previous decision of the Supreme Court and therefore cannot succeed. It is an option in this case. Whether this matter moves to the Court of Appeal NI or the Supreme Court, the judgment of the High Court in Belfast has progressed the issues for the applicants and due regard will have to be paid to the detailed findings of fact in this well reasoned judgment, which any court should be slow to overturn.