Investigations into fatalities in Northern Ireland involving British military personnel Contents

3The legal framework underpinning historic investigations against former service personnel

26.Investigations into historic allegations against service personnel in Northern Ireland take place under a legal framework which is underpinned by the European Convention on Human Rights (ECHR) and case law emanating from the European Court of Human Rights (ECtHR).

27.The United Kingdom is a founding member, and architect of, the ECHR and in 1998 incorporated into UK law the rights of the Convention through the Human Rights Act.25 As a result of the 1998 Act, all public bodies have to comply with Convention rights, although the Act does not grant the UK Courts the power to strike down primary legislation made at Westminster. Instead, in the event of an Act being non-compliant with Convention rights, the Courts have the power to issue a ‘declaration of incompatibility’ such a declaration does not affect the validity, continuing operation or enforcement of the said Act/provision.26

28.The ECHR forms an important part of the 1998 Good Friday Agreement (GFA). Compliance with the ECHR forms part of Strand One of the Agreement, while it also committed the UK Government to incorporate the ECHR “into Northern Ireland law […] with direct access to the courts, and remedies for breach of the Convention”.27

29.Human rights policy is devolved to the Northern Ireland Assembly (by virtue of being neither a reserved nor an excepted matter). However, the Assembly is prohibited from legislating in a way that would be incompatible with Convention rights and Ministers of the Northern Ireland Legislative Assembly are not permitted to modify the Human Rights Act 1998 (HRA 1998).28 As a result, both the ECHR and the HRA 1998 are entrenched within Northern Ireland’s devolution settlement and can only be modified by an Act of the UK Parliament. Furthermore, it is unclear whether legislative consent would be expected should the need arise to amend the Human Rights Act.29

30.Article 2 of the ECHR enshrines the ‘right to life’:

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

31.In 1995, the case of McCann v United Kingdom was considered by the European Court of Human Rights (ECtHR). That case first articulated the claim that, within the terms of Article 2, a signatory to the ECHR was under an obligation to carry out some form of effective official investigation into deaths where lethal force had been used against individuals by agents of the state.31

32.The effect of Article 2 was debated among our witnesses. Professor Richard Ekins criticised the “unsound construction” of Article 2 by the ECtHR. By contrast, Professor Philippe Sands QC emphasized the basis of the Court’s rulings in the member states’ domestic law.32 Despite this difference of view, there was agreement that the ECtHR ruling on McCann v United Kingdom and subsequent rulings provided an obligation on Member States to conduct “independent, effective, transparent” investigations where there has been a loss of life as a result of the use of force.33

What constitutes an effective investigation?

33.ECtHR’s case law in this respect raises a question of what constitutes an “independent, effective, transparent” investigation”. This is important in the context of the PSNI’s current investigations into fatalities in Northern Ireland. According to Professor McEvoy, the effectiveness of the investigations conducted at the time of those killings went to the “absolute crux” of the need for the current investigations.34

34.Professor McEvoy argued that there was “reason to believe” that proper investigations for a number of cases, were not carried out at the time. In particular, he highlighted the agreement between the Royal Ulster Constabulary—which ran from 1970 to 1973—that in investigations concerning fatalities caused by serving personnel police investigators “would not be involved in the interrogation of British soldiers”, but would be conducted by the Royal Military Police. The agreement was terminated in 1973, following both “strong suggestions in case law” and wider concerns at that time, that the investigations “were not effective”.35

35.In order to test the meaning of an independent investigation, the Chairman presented the following scenario:

An incident happens 40 years ago, where somebody shoots at a soldier, the soldier draws his gun and shoots the person dead. He then reports what has happened and the matter is looked into by the service authorities. They find that the solider acted perfectly properly. That is not an independent investigation, is it?36

36.Professor McEvoy asserted that such a scenario did not constitute an independent investigation,37 while Professor Sands believed that an independent investigation would still be required in order to “ascertain what the facts are”.38 Professor Ekins also agreed that the original investigation would not satisfy the ECtHR’s interpretation of an independent investigation. However, he was not certain that a failure to re-open an investigation into such a scenario would be seen as a “new or a continuing breach” by the Court.39

37.In a 2013 paper on models for dealing with the past in Northern Ireland, Professor McEvoy and Dr Louise Mallinder noted that although ECtHR’s case law had created a duty to investigate deaths arising from the activities of state actors, it did not bring with it “a duty to prosecute”.40 This point was also highlighted by Professor Philippe Sands QC:

It is not an obligation to take any particular steps. It is simply an obligation to find out the facts of what has happened, and ascertain.41

38.Professor McEvoy concluded that the Government’s room for manoeuvre therefore lay not at the investigation stage—“families have a right to an Article 2-compliant investigation”—but with the “space for legal imagination” on further action, if any, once the investigation had concluded.42

26 See: Horne et al. (19 May 2015) A British Bill of Rights? House of Commons Library Briefing Paper No.7193, pp.5–7

28 Northern Ireland Act 1998, sections 6(2) and 7(1)

29 House of Lords European Union Committee, The UK, the EU and a British Bill of Rights, 12th Report of Session 2015–16, 9 May 2016, HL 139, paras. 162–183

31 O’Neill, A. (19 October 2009). The European Court and the Duty to Investigate Deaths, The Journal

32 Qq2–3

33 Q2; McEvoy, K. and L. Mallinder, (2013). Truth, Amnesty and Prosecutions: Models for dealing with the past. Queens University Belfast, pp.2–3

34 Q11

35 Q12

36 Q21

37 Q21

38 Q25

39 Q25

40 McEvoy, K. and L. Mallinder, (2013). Truth, Amnesty and Prosecutions: Models for dealing with the past. Queens University Belfast, pp.2–4; see also: European Court of Human Rights, Case of Finucane v The United Kingdom (2003), Reports of Judgments and Decisions 2003-VIII, para 89, European Court of Human Rights, Case of Brecknell v The United Kingdom (2007) All ER(D) 416 (Nov), para 66.

41 Q3

42 Q25

25 April 2017