by Paul Butler
Is the PSNI independent enough to investigate the past?
That is the question seven justices of the UK Supreme Court have been deliberating. The Supreme Court heard arguments over three days, 14th to 16th June, in an appeal concerning the extent to which Article 2 investigative obligations arising under the Human Rights Act 1998 applies retrospectively to deaths which occurred prior to the commencement of the Human Rights Act 1998 and whether the Legacy Investigation Branch (LIB) of the PSNI is sufficiently independent to investigate such deaths.
Lord Hodge, Lord Lloyd-Jones, Lord Kitchin, Lord Sales, Lord Hamblen, Lord Leggatt and Lord Burrows were asked to consider two conflict-related events, namely the killing of a Catholic woman Jean Smyth in 1972, and the ill treatment/torture of 12 men detained in 1971 during internment, who have become known as the ‘hooded men.’
In March 2017, the family of Jean Smyth won an important judicial review in the High Court in Belfast which ruled the PSNI was not sufficiently independent to investigate legacy killings and could not be involved in any new investigation into the killing of Jean Smyth. The Department of Justice, the PSNI Chief Constable and the Secretary of State are now attempting to overturn the decision of the High Court in Belfast.
Hugh Southey QC, representing Jean Smyth’s sister Margaret McQuillan and Francis McGuigan, one of the ‘hooded men’, told the judges that the cases were of the “utmost seriousness”. He went on to state that the two issues in the case are the “applicability of the investigatory obligation” and whether the PSNI/LIB is sufficiently independent to investigate the death of Jean Smyth and whether it is sufficiently independent to carry out “any necessary investigation” into the treatment of the “hooded men.”
Mr. Southey said the PSNI “lacks the requisite independence”, under articles of the European Convention on Human Rights, to investigate the killing of Jean Smyth and the torture of the “hooded men”. “That is because an independent, fair minded observer would find that there was a real risk of bias in any investigation undertaken by the PSNI into those matters.”
“Such an assessment would necessarily be informed inter alia by the judicial and other independent findings of serious failings by the PSNI investigatory processes in legacy cases involving allegations of state involvement or collusion.”
Tony McGleenan QC, representing the PSNI told the judges that the LIB did not lack the independence to investigate legacy killings and that all that was required was, “sufficient independence”, to investigate legacy killings.
Niall O’Murchú of Kinnear and Co Solicitors who represents the family of Jean Smyth stated, “This is a hugely important case for all families who lost loved ones during the conflict. Jean Smyth’s family have fought tenaciously for 7 years in court to get to this point. The PSNI cannot ever be independent in any legacy case, and in Jean’s case the PSNI was forced to accept that. If Jean’s family is successful at the Supreme Court, it will be a great victory for hundreds of families who do not trust the PSNI investigating the death of their loved ones.”