Lawyer: Supreme Court ruling on hooded men’s ruling could be the start of the end of Northern Ireland’s legal legacy
Forty years later, McKerr is known for two lines of court cases: nine at the European Court of Human Rights in Strasbourg; and five in the Supreme Court of the United Kingdom.
As early as 2001, even the street dogs knew, concerning the so-called inheritance cases in Northern Ireland, that Strasbourg considered that the historical inquiries into the Troubles did not comply with Article 2 of the European Convention on Human Rights. the man.
Everyone’s right to life is protected by law. No one may be intentionally deprived of his life except in the execution of a sentence of a court following his conviction for a crime for which this penalty is prescribed by law.
Then, last month (December 15), in a Northern Ireland case known as McQuillan, a seven-judge London Supreme Court revived the 2004 McKerr domestic case series.
There can be no question of concluding that the investigations into the murders which took place before 2 October 2000 did not comply with article two.
It was at this point that the Human Rights Act (“HRA”) of 1998 came into force.
While few, if any, liked it at the time, I think on December 15, 2021 we had the start of the end in Northern Ireland for legacy litigation.
Lord Hodge, the Vice-President of the Supreme Court, argued in this recent judgment: “The general presumption is that a law which creates rights and obligations does not have retroactive effect. This reflects the values of fairness, legal certainty and the rule of law.
“It is desirable that people, including public officials and authorities, are able to determine their legal rights and obligations when they act or when they fail to act.
“It is generally unfair to treat people as subject to obligations that they were not aware of at the time.”
However, the Supreme Court did not specify what was to happen in a number of cases brought before the Strasbourg Court.
• an applicant in the United Kingdom could continue to accede to the European convention through ordinary law; or was the HRA the only way to plead non-compliance with article 2? Thus, the Supreme Court relied on two particularly controversial Strasbourg decisions: the Silih case (against Slovenia) of 2009; and the case of Janowiec (against Russia) from 2013.
These have enabled the Strasbourg Court to consider legacy cases outside of normal legal rules on – what lawyers call – the temporal scope of the convention (i.e., the times at which the convention s’ applied.
The Janowiec case concerned the massacre of Polish officers in the Katyn forest in 1940, yet Russia only became a party to the European convention in 1998!
That said, in the recent Supreme Court case over Northern Ireland, McQuillan, the three original plaintiffs lost in their actions against various NI authorities on the facts.
The three candidates were:
• Margaret McQuillan, concerning her sister, Jean Smyth, killed in 1972 (the army being then suspected);
• and Francis McGuigan and Mary McKenna, concerning the case of the 14 hooded men in 1971, and the five military interrogation techniques used by the police on certain detainees.
You would not have known that these three candidates had lost some of the media reports, which presented the Supreme Court ruling as yet another victory for the people against the British state.
Relatives can be excused for not understanding the complicated judgment, but such generosity should not be extended to their lawyers.
Let me explain why this is so.
In 1978, in the Ireland v. United Kingdom, the Strasbourg court ruled that the hooded men had been subjected to inhuman and degrading treatment.
Following an RTE documentary in 2014, the Irish government – claiming it was torture – attempted to reopen the case.
Strasbourg refused in 2018, as one might have expected, given that there is a principle of legal finality in all justice systems, that is to say that cases end and are not easily reopened. decades later.
Last month, the Supreme Court told Margaret McQuillan that: 1972 was far too early, even pushing back ten or twelve years from 2000. There has been no violation of Article 2 by the authorities in North Ireland.
And the court told Francis McGuigan and Mary McKenna that: RTE’s documentary evidence had been fully reviewed by Strasbourg in 2018. The Supreme Court upheld Strasbourg against the Irish state in this regard.
It was not only the media that misinterpreted this decision as yet another victory against the British state.
Irish taoiseach, Micheál Martin, with legal advisers available, even claimed the Supreme Court said the hooded men had been tortured.
To be sure, the judges overturned a 2014 PSNI decision not to investigate the hooded men’s allegations as irrational. But the Supreme Court did not call for a proper investigation.
Indeed, the PSNI, breathing freely for the first time in 20 years, issued an astonishing press release: “Police services welcome the clear legal ruling that there is no legal obligation arising from the article 2 ECHR to investigate these cases. We will now take a close look at the judgments and their impact on the legacy workload. “
Significantly, the Supreme Court criticized the late Lord Kerr – the subject of a recent Northern Ireland celebratory volume – for his leading judgment in the Finucane cases in 2019.
He then implicitly criticized the Crown attorney (Sir James Eadie QC): “We have reservations as to whether Lord Kerr was correct in interpreting Janowiec the way he did. This tribunal was not asked to override its ruling in Re Finucane, but we note that the extension beyond ten years authorized in Re Finucane involved less than two more years.
Lord Kerr, from his decision with the date 2000, had stepped back 10 years as apparently authorized by Strasbourg for Article Two cases, but had to add two more years to encompass the murder of Pat Finucane, which has took place in 1989.
The importance of McQuillan as a historical case.
Lawfare – the pursuit of war through legal challenges such as McQuillan – is put on formal notice.
The choice of the date of October 2, 2000 constituted a quantum jurisprudential leap towards McKerr (national) jurisprudence.
The fact that the Strasbourg McKerr case law clutters the judgment by 100 pages – and makes it more difficult to understand – only means that there could be at least one more Supreme Court uprising.
In England this would not be necessary as the parties would agree to the game being over.
Northern Ireland, however, is different.
• Dr Austen Morgan is a lawyer in London (33 Bedford Row) and Belfast. His next book is: New Federalist Papers: Why the UK Needs a Written Constitution
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