19/11/2025
Written by: Raj Desai
In re McQuillan (“McQuillan”) a seven-strong Supreme Court addressed the temporal application of the Human Rights Act 1998 (“HRA”) and the scope and application of the investigative duties arising under Articles 2 and 3 of the European Convention on Human Rights (“ECHR”) to events during the Troubles in Northern Ireland.
In both appeals, newly discovered official records called into question the outcome of prior police investigations, leading to calls for fresh and independent investigations. In McQuillan, military logs recorded a covert army unit opening fire in the vicinity of the shooting of Margaret McQuillan’s sister Pat Smyth in Belfast in 1972; in the McGuigan and McKenna appeal, recently released archive papers suggested Ministerial level authorisation of the notorious “five techniques” to which detainees (known as the “Hooded Men”) had been subjected, and which the European Court of Human Rights (“ECtHR”) in Ireland v UK No. 1 [1978] ECHR 1 had found to constitute inhuman or degrading treatment contrary to Article 3 but – controversially – not torture.
A gateway issue of wide general importance was whether and under what circumstances the investigative obligations were triggered by events occurring before the coming into force of the HRA where new evidence emerged thereafter. The issue pitted the non-retroactivity principle against the rights to truth, justice and accountability underpinning the investigative duties. The ECtHR (in considering the scope of the right of individual petition to the ECtHR) and the Supreme Court (in considering the temporal application of the HRA to the Troubles) had grappled with this conflict in a series of cases, which were slow to yield clarity.
The Supreme Court in McQuillan unanimously held that, while it was established that the investigative duties can be revived where the triggering event had occurred before commencement of the HRA (i.e. 2 October 2000) if sufficiently weighty and compelling new evidence comes to light, this will only be so if one of two further tests is satisfied: either a multi-factorial “genuine connection test” encompassing a temporal limit of ten, or at the most twelve years, prior to commencement of the HRA; or an exceptional “Convention values” test defined by reference to the gravity of the triggering event which must be so grave as to amount to a negation of the very foundation of the ECHR.
The effect of the decision is to place much serious state wrongdoing during the Troubles beyond the reach of the investigative duties at the domestic level, and this was so for the appeals before the Court, though the approach is less restrictive than approaches urged on the Supreme Court before and since. The Court also held that the Convention values test must be applied by reference to the less demanding contemporary standards, and it was not satisfied in the Mcguigan and McKenna appeals in which it was invoked. However, in a poignant conclusion for the Hooded Men and their families with broader significance to evolving international standards, the Court held that the circumstances of the systematic use of the five techniques, as now known, would today constitute torture and satisfy the high Convention values test.
McQuillan also addressed the substance of the Articles 2 and 3 investigative duties and remains the leading domestic distillation of the minimum standards for investigations developed by the ECtHR via a proliferation of decisions from the legally disparate Council of Europe member states (“the minimum standards”). The Supreme Court’s statement of principle is notable for its explicit recognition of the “right to the truth”, a right with both an individual and collective dimension with deep resonance in the Legacy context.
Shortly after McQuillan, the then Government forced through Parliament the ill-judged Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”), guillotining all ongoing Troubles investigations in favour of an inchoate and legislatively weak single investigative body paired with a conditional immunity scheme encompassing even the most egregious of criminal wrongdoing. This prompted the re Dillon and ors litigation ([2024] NICA 59), in which the Northern Irish Courts declared significant parts of the legislation incompatible with the minimum standards distilled in McQuillan and disapplied them under post-Brexit Windsor Framework powers, as well as triggering a further inter-state ECtHR petition by the Republic of Ireland.
Whilst committing to a fresh approach, the current Government has nonetheless pursued an appeal to the Supreme Court regarding some of the NI Court of Appeal’s conclusions, including its conclusion that the far-reaching national security veto power over disclosure in the Act violates the minimum standards. This appeal will be heard by the Supreme Court in October 2025 and McQuillan will be at the heart of the argument.
Matrix members
Hugh Southey KC and Blinne Ní Ghrálaigh KC (instructed by Phoenix Law, Belfast) appeared for Mr McGuigan in McQuillan. Raj Desai is instructed by Amnesty International UK in Dillon.