NI High Court: ‘Legacy Act’ breaches human rights legislation

About this case:

• Citation:
  [2024] NIKB 11
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Adrian Colton

Delivering judgment for the High Court, Mr Justice Adrian Colton opined that “…there is no evidence that the granting of immunity under the 2023 Act will in any way contribute to reconciliation in Northern Ireland, indeed, the evidence is to the contrary. It may well be that a system whereby victims could initiate the request for immunity in exchange for information would be compliant with articles 2 and 3 ECHR, but this is not what is contemplated here.”

Background

The Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 ends investigations of Troubles-related incidents, and created the Independent Commission for Reconciliation and Information Recovery (ICRIR) as the sole body to review deaths, harmful conduct and requests for immunity arising from the Troubles for a term of 5 years. The 2023 Act obliges the ICRIR to grant immunity or amnesty to those involved in criminality in certain situations pursuant to s.19, with s.41 prohibiting criminal enforcement action in respect of Troubles-related offences unless they are ‘serious’ (causing death or serious harm) or ‘connected’ offences (i.e. those connected to Troubles-related offences).

Leave to challenge the 2023 Act was granted to a number of applicants, most of whom are family members of individuals killed during the Troubles. The applicants alleged that the 2023 Act is incompatible with Articles 2, 3, 6 and/or 14 of the European Convention on Human Rights (ECHR), breaches their rights pursuant to Article 2 of the Windsor Framework (WF) which obliges the UK to ensure that its withdrawal from the EU would not diminish the rights, safeguards or equality of opportunity as set out in the Good Friday Agreement, and amounts to a fundamental unconstitutional interference in the role and function of the judiciary.

The High Court

Mr Justice Colton considered the provision for immunity from prosecution or ‘amnesties’ pursuant to s.19 of the 2023 Act, finding himself satisfied that “…section 19 and those related provisions under sections 7(3), 12, 20, 21, 22, 39, 42(1) of the 2023 Act are in breach of the lead applicant’s rights pursuant to article 2 of the ECHR. I am also satisfied that they are in breach of article 3 of the ECHR.”

The judge continued, “The immunity contemplated under the 2023 Act does not provide for any exceptions for grave breaches of fundamental rights including allegations of torture. If an applicant for immunity meets the criteria the ICRIR must grant immunity. The victims have no role or say in these decisions. Victims may be confronted with a situation where an applicant for immunity does so at the last minute, in circumstances where a recommendation for prosecution is imminent or inevitable.

The court observed that, “there is no evidence that the granting of immunity under the 2023 Act will in any way contribute to reconciliation in Northern Ireland, indeed, the evidence is to the contrary. It may well be that a system whereby victims could initiate the request for immunity in exchange for information would be compliant with articles 2 and 3 ECHR, but this is not what is contemplated here.”

In respect of s.41, the court noted that “It seems to the court that the applicants are right when they argue that “life endangering offences” are encompassed by the section 41 prohibition. It would, in effect, extend unconditional immunity, to life endangering offences, where no actual harm is caused, such as attempted murder, conspiracy to murder, possessing firearms or explosives with intent to endanger life, causing explosions so long as no death or serious injury results. The state has a responsibility under the Convention to deter and punish such conduct.” Mr Justice Colton decided that the bar to criminal investigation, prosecution and the punishment of offenders under s.41 contravened Articles 2 and 3 ECHR.

The applicants argued that s.43 created a strict limitation period in respect of Troubles-related claims brought on or after 17 May 2022. The court was satisfied that s.43 pursues a legitimate aim with a sufficiently important objective to justify the limitation, but that only insofar as the section has retrospective effect, it does not meet the proportionality test.

The court was not concerned by s.7, which provides for the inadmissibility of certain information obtained by the ICRIR in criminal proceedings, but found s.8, a similar provision in respect of “protected material” in civil proceedings to be incompatible with Articles 2 and 6 ECHR as it went further to exclude all such evidence or evidence relating to protected material.

As to s.38, which provides that there will be no investigation into Troubles-related offences except through the ICRIR, and as to s.9(8) and s.10(3) which limit requests for review to a period of 5 years (to 1 May 2029), the court considered that “the lack of flexibility to deal with cases where new evidence comes to light which could trigger the need for an investigation is a matter of concern. The drawing of “bright line rules” must be problematic when dealing with fundamental rights under articles 2 and 3 which are not qualified rights. Whilst the state is afforded a broad discretion as to how it should meet its investigative obligations under articles 2 and 3, at a minimum, there must be some mechanism capable of doing so.”

Mr Justice Colton proceeded to consider whether the ICRIR could conduct an investigation which is compliant with Articles 2 and 3 ECHR.

In light of the applicants’ assertions that the ICRIR lacked independence being that inter alia it was created by the Secretary of State for Northern Ireland and the Commissioner for Investigations is a former RUC/PSNI officer, the court considered whether the ICRIR was capable of carrying out an investigation complaint with Article 2 ECHR. Mr Justice Colton concluded that the various statutory arrangements, including the ICRIR’s interaction with the Northern Ireland Office, taken together with the Framework Document, Code of Conduct and other documents published by the ICRIR rendered it sufficiently independent to meet the procedural obligations under Articles 2 and 3 ECHR.

The court also considered to a lesser extent the disclosure powers of the ICRIR, issues of victim participation in the review process, the absence of legal aid for next of kin in ICRIR reviews and public transparency.

Mr Justice Colton expressed his understanding of the applicants’ opposition to ICRIR reviews as a substitute for the usual criminal investigations, civil actions and inquests, but stated that he could not “at this remove say that the system established under the Act cannot provide an article 2/3 compliant investigation. The Commission is obliged to do so. It has wide powers and a wide range of discretion/flexibility to carry out its reviews. Should it fall short of its obligations under article 2/3 then I have no doubt that they will be subject to the scrutiny of the court…”

The court also examined inter alia a challenge to s.46 and s.47 of the 2023 Act, provisions retroactively prohibiting extant civil claims brought by applicants acquitted on the basis of an unlawfully made interim custody order, finding the effects of those provisions incompatible with Article 6 ECHR and Article 1 of the First Protocol to the ECHR (A1P1).

Conclusion

Accordingly, the court made the following declarations:

• A declaration that the ‘immunity from prosecution’ provisions of the 2023 Act are incompatible with Articles 2 and 3 ECHR and Article 2 WF and should be disapplied;
• A declaration that s.43(1) of the 2023 Act (which provides that existing civil actions relating to the Troubles brought on or after 17 May 2022 cannot be continued on or after 18 November 2023 and that no new such civil claims may be brought after 18 November 2023) is incompatible with Article 6 ECHR and Article 2 WF and should be disapplied;
• A declaration that s.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 WF and should be disapplied.
• A declaration that s.41 of the 2023 Act (the prohibition of criminal enforcement actions) is incompatible with Article 2 ECHR and Article 2 WF and should be disapplied.
• A declaration that s.46 and s.47 (providing for interim custody orders) are incompatible with Article 6 and A1P1 ECHR.

Dillon, McEvoy, McManus, Hughes, Jordan, Gilvary, and Fitzsimmons Application and In the matter of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 and the Secretary of State for Northern Ireland [2024] NIKB 11