About this case:

• Judgment:
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  Court of Appeal

Finding that the Chief Constable had not demonstrated the independence of the Legacy Investigation Branch, the Court of Appeal in Northern Ireland said independence was necessary for carrying out an Article 2 compliant effective investigation.

Background

On 8 June 1972, Jean Smyth was shot dead on the Glen Road, Belfast. At the time she was 24 years old and had a daughter aged 6.

The initial police investigation conducted by the RUC formed the opinion that Ms Smyth was killed by a bullet which entered the stationary car in which she was a passenger, through the rear window in the door behind the driver’s door, striking her in the head. It said “nothing else of significance was noted other than the fact that no other holes or bullet strike marks were found on the outside or inside of the car”.

In November 1972, an inquest was held, and an open verdict was recorded.

On 22 October 1973, a Belfast Telegraph article entitled “Was Jean Smyth Shot by Mistake?” included a suggestion that the UVF had been shooting, as well as a theory that the incident concerned the Military Reaction Force. The article also stated that a unit of the Provisional IRA may have fired on the car thinking it was carrying Army personnel.

In 1975, the police received “an intelligence report” which put forward that two named members of the Provisional IRA were responsible for the deceased’s death. It stated that they were supposedly conducting vigilante patrols in the area when shots were fired from a car on the Glen Road.

This report led to no further action on the part of the police.

Decision for a further investigation

Between 2006 and 2008, the PSNI’s Historical Enquiries Team carried out a review of Ms Smyth’s death.

The work culminated in the publication to the family of a Review Summary Report which recorded that it was suggested that only one round had been fired, that it had not proved possible to identify the type of weapon used, and that no new forensic opportunities had been identified.

It also recorded that there was no intelligence prior to the incident which would have prevented the death.

Overall, the death was described as a random killing.

On 13 June 2014, a researcher found a number of military logs in the National Archives which took the form of recording radio traffic. The logs provided support for the view that there may have been military involvement in Ms Smyth’s death.

In December 2015, a decision was made by the PSNI that the death should be further reviewed within the Legacy Investigation Branch.

Previous judicial decisions

Ms Smyth’s sister, Margaret McQuillan, brought an application on the issue of whether the Legacy Investigation Branch (LIB), as part of the PSNI, lacked independence to investigate the case of her sister’s death.

In the High Court on 3 March 2017, Mr Justice Paul Maguire granted a declaration that “the proposed investigation by the LIB of Mrs Smyth’s death conflicts with the requirements of Article 2 ECHR as the LIB lack the requisite independence required to perform an Article 2 compliant investigation in respect of this death”.

On 6 December 2017, the Court of Appeal heard that it remained “the position of the PSNI that they will conduct the review in this case, they will conduct the review into this death, and are intending to do so by Article 2 compliant standards”, and remitted the proceedings back to the High Court.

On 13 April 2018, Mr Justice Maguire withdrew the declaration made on 3 March 2017 and concluded that:

• Article 2 was not engaged as a matter of domestic law;
• The PSNI were not bound by any form of procedural legitimate expectation;
• There was no parallel obligation to Article 2 existing at common law and therefore no breach of the common law

Court of Appeal

Ms McQuillan appealed against the order made on foot of Mr Justice Maguire’s second judgment on 13 April 2018.

The Court of Appeal concluded that the military logs constituted new evidence coming to light, that Article 2 ECHR applied to the further investigation, and allowed Ms McQuillan’s appeal against that part of Mr Justice Maguire’s second judgment;

The Court of Appeal also held that the further investigative measures were subject to the Article 2 procedural obligation, so that those responsible for carrying them out were required to be independent from those implicated in the events.

Further, as the Article 2 procedural obligation has been revived there is an obligation on the Chief Constable to proceed promptly. That obligation of promptness includes the obligation to put in place suitable arrangements for practical independence and those arrangements should be transparent.

The Court of Appeal concluded that the Chief Constable had not demonstrated practical independence on the part of the Legacy Investigation Branch so that it had the capacity to carry out an investigation into Ms Smyth’s death, and said that the consideration of the independence of Legacy Investigation Branch should be directed to a consideration of the hierarchical, institutional or practical independence of the institution concerned and also should focus on whether the investigators have the capacity to be practically independent.

The Court of Appeal dismissed Ms McQuillan’s appeal from the other parts of Mr Justice Maguire’s second judgment.

Declarations granted

The Court of Appeal granted declarations that the Chief Constable is:

• Obliged to conduct the further investigations into the death of Jean Smyth in a way which satisfies the State’s procedural obligation under Article 2 ECHR; and
• Bound to promptly take steps to secure the practical independence of the investigators so that they have the capacity to carry out an Article 2 compliant effective investigation into the death of Jean Smyth.

• by Seosamh Gráinséir for Irish Legal News