NI Troubles: Legacy Act immunity clause ‘breaches’ human rights


Genuine horsehair barrister's wig on an antique desk

In re Dillon and others – NI Troubles (Legacy and Reconciliation) Act 2023

On 28 February 2024, Mr Justice Colton, sitting in the High Court in Belfast, declared aspects of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (the 2023 Act) unlawful.

Specifically, his Honour declared that:

  1. The ‘immunity from prosecution’ provisions are incompatible with Articles 2 (right to life) and 3 (prohibition against torture or inhuman or degrading treatment or punishment) of the European Convention on Human Rights (the ECHR) and Article 2 (rights of individuals) of the Windsor Framework (the WF) and should therefore be disapplied;
  2. Section 43(1) (which provides that troubles-related civil actions brought on or after 17 May 2022 may not be continued on or after 18 November 2023, and that no new Troubles-related civil claims may be brought after 18 November 2023) is incompatible with Article 6 (right to fair trial) ECHR and Art 2 of the WF and should therefore be disapplied;
  3. Section 8 of the 2023 Act (which provides for the exclusion of evidence in civil proceedings) is incompatible with Articles 2 and 3 ECHR and Article 2 of the WF and should be disapplied;
  4. Section 41 of the 2023 Act (prohibition of criminal enforcement action) is incompatible with Article 2 ECHR and Article 2 of the WF and should be disapplied;
  5. Sections 46 and 47 (interim custody orders) are incompatible with Article 6 and A1P1 (protection of property) of the ECHR.

Mr Justice Colton concluded that the Independent Commission for Reconciliation and Information Recovery (ICRIR) is capable of carrying out an Article 2/3 (ECHR) compliant investigation into Troubles-related deaths and offences. The ICRIR, whose work will be time limited to five years, will have the power to grant immunity to those involved in criminality in certain defined circumstances.

Hugh Southey KC led Malachy McGowan and was instructed by Setanta Marley of KRW on behalf of one of the applicants, Gemma Gilvary.

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