“An Act to address the legacy of the Northern Ireland Troubles and promote reconciliation by establishing an Independent Commission for Reconciliation and Information Recovery, limiting criminal investigations, legal proceedings, inquests and police complaints, extending the prisoner release scheme in theNorthern Ireland (Sentences) Act 1998 , and providing for experiences to be recorded and preserved and for events to be studied and memorialised …”
“[T]he ICRIR must grant a person immunity from prosecution for one or more serious or connected Troubles-related offences if that person meets the conditions set out in section 19. In short, the key condition is that the person concerned must give a true account of his conduct to the best of his ‘knowledge and belief.’ The potential implications for the applicants are obvious. Those responsible for killing Seamus Dillon, Anthony Hughes, wounding James McManus or the torture and killing of Maurice Gilvary and those responsible for the shooting of John McEvoy would be entitled to immunity if they make such a request to the ICRIR and the ICRIR is satisfied that they are telling the truth about their involvement. Immunity will be granted irrespective of the views of the applicants. There is no requirement for contrition or acknowledgment of the impact of their actions on their victims. The request for immunity can be made at any stage in the process.”
“[t]hey are not ‘a tool enabling an armed conflict or a political regime that violates human rights to be brought to an end more swiftly.’ The conflict or ‘Troubles’ ended, in effect, in 1998. … I accept that the provision of information as to the circumstances in which victims of the Troubles died or were seriously injured is clearly important and valuable. It is arguable that the provision of such information could contribute to reconciliation. However, 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.”
“in order for the [2023] Act to be read compatibly with the Convention and to satisfy the state’s ‘own motion’ obligations under articles 2 and 3 … (see Jordan v UK at para 105) the Secretary of State must inform himself of all outstanding Troubles-related police complaints and submit them to the ICRIR ….”
“As has been stated many times, the Government's policy intent regarding civil claims is to reduce the burden on the Northern Ireland civil courts - which currently have a huge case load backlog to work through - while enabling the commission to establish itself as the sole investigative body looking at Troubles-related deaths and serious injuries. It is the Government's intent that families should no longer have to go through the strained civil court system in order to receive the answers they seek.”
“Given the obligation on the court to look for compelling grounds and to treat retrospective measures with the greatest possible degree of circumspection I consider that insofar as section 43(1) has retrospective effect, it does not meet the proportionality test.”
“I consider that section 8 is an interference with the article 2 rights of those who seek to vindicate those rights via civil litigation against State agencies in the context of Troubles-related killings. Given the unqualified nature of the article 2 rights, such an interference is unlawful and cannot be justified.”
“whether the ICRIR is capable of carrying out an effective investigation into deaths or allegations of torture occurring during the Troubles in compliance with the procedural requirements of articles 2 and 3”
“Does [the ICRIR] have the independence, structures and powers necessary to thoroughly investigate deaths occurring during the Troubles including those involving allegations of state involvement or collusion?”
“Whilst the court is not dealing with a ‘specific case’ it concludes that the proposed statutory arrangements, taken together with the [preparatory] policy documents published by the Commission inject the necessary and structural independence into the ICRIR. At this remove the court concludes that the ICRIR is sufficiently independent to comply with the requirement for independence to meet the procedural obligations under articles 2/3 [of the Convention].”
“(i) A right (or equality of opportunity protection) included in the relevant part of the Belfast/Good Friday 1998 Agreement is engaged; (ii) That right was given effect (in whole or in part) in Northern Ireland, on or before31 December 2020 [the date on which the transition period ended following the UK’s exit from the EU on31 January 2020 ]; (iii) That Northern Ireland law was underpinned by EU law; (iv) That underpinning has been removed, in whole or in part, following withdrawal from the EU; (v) This has resulted in a diminution in enjoyment of this right; and (vi) This diminution would not have occurred had the UK remained in the EU.”
“… it would not be consistent with the rule of law in a democratic society or with the basic principle underlying article 6(1) – namely that civil actions must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons ….”
“… an additional declaration of incompatibility pursuant tosection 4 of the Human Rights Act 1998 to the effect that section 43(1) and (2) of theNorthern Ireland Troubles (Legacy and Reconciliation) Act 2023 (‘the 2023 Act’), which imposes an absolute bar on civil actions which are “Troubles related”, is incompatible with article 6 [of the Convention] (and not merely in respect of those applications pre-dating the Act coming into force).”
“Overall, we find that this regime has the potential to offend the proper aim of the ICRIR expressed in its written submissions that ‘the organisation is made up of personnel that are able to conduct their work free of State interference’ and could give rise to an unhelpful perception which could hinder progress in this area.” (Emphasis added.)
“(a) … a … declaration … that, in circumstances where the ICRIR purports to replace inquests as the means of compliance with the State’s obligations under article 2 [of the Convention], it is not presently capable of discharging the article 2 investigative obligation as (i) it does not have the power to hold an investigation which allows for effective participation of the Next of Kin to the extent necessary to protect their interests and (ii) it is not sufficiently independent in relation to its powers to disclose relevant sensitive information to the Next of Kin and the public.”
“(b) … a declaration of incompatibility pursuant tosection 4 of the Human Rights Act 1998 to the effect that, in the circumstances mentioned at sub-paragraph (a) above [ie in circumstances where the ICRIR purports to replace inquests as the means of compliance with the State’s obligations underarticle 2 of the Convention ], sections 4(1)(a) and (4), 30(2), (4)-(7), (10) and (11) of, and Part 1, paragraphs 3-5, and Part 2, paragraphs 9-13 of Schedule 6 to, the 2023 Act, insofar as they provide the Secretary of State with a power to preclude disclosure of sensitive information by the ICRIR to the Next of Kin and the public, are incompatible with article 2 [of the Convention]. (Sections 33 and 34, which relate to Secretary of State giving guidance and making regulations about handling documents, and section 60 (interpretation), are not included in this declaration, as they do not give rise to the Secretary of State’s veto on disclosure.)”
“(c) It follows that at present, given the declarations made at (a) above and in the absence of any other mechanism which can currently comply with article 2 obligations in cases where an inquest is required, the Court must also make a declaration of incompatibility in relation to section 44 of the 2023 Act, simply to reflect current arrangements (and without expressing any view on how the present incompatibility the court have identified should be remedied).” (Emphasis added.)
“a declaration of incompatibility pursuant tosection 4 of the Human Rights Act 1998 that section 45, insofar as it precludes complaints in relation to police misconduct being progressed to misconduct charges or criminal charges, is incompatible with articles 2 and 3 [of the Convention]. (This does not preclude the ICRIR from conducting investigations which would previously have been carried out by [the Police Ombudsman] but reflects that, where misconduct charges represent part of the State’s response to potential article 2/3 breaches, immunity from misconduct action which might otherwise be possible is incompatible with the Convention on a similar basis to immunity from prosecution.)”
“1. The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the [Belfast Agreement] entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms. 2. The United Kingdom shall continue to facilitate the related work of the institutions and bodies set up pursuant to the [Belfast Agreement], including the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland, in upholding human rights and equality standards.”
“The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.”
“(3) There shall be taken into account, together with the context: … …(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; …”
“We consider that article 2(1) of the Protocol will have direct effect and that individuals (not just the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland) will therefore be able to rely directly on this article before domestic courts. This includes in proceedings against the UK Government. Ultimately, however, the direct effect of individual provisions of the Withdrawal Agreement will be a matter for the courts.” (5) This again is a unilateral statement of opinion by one party to the Withdrawal Agreement and Windsor Framework as to their effect. (6) The applicants also rely on a written answer in Parliament by Lord Duncan of Springbank, Northern Ireland Office Minister, on28 January 2020 that “[t]he Government also considers that article 2(1) of the Protocol is capable of direct effect and that individuals will therefore be able to rely directly on this article before the domestic courts. Individuals will be able to bring proceedings independently …”
“Article 11 Rights in the event of a decision not to prosecute 1. Member states shall ensure that victims, in accordance with their role in the relevant criminal justice system, have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law. 2. Where, in accordance with national law, the role of the victim in the relevant criminal justice system will be established only after a decision to prosecute the offender has been taken, member states shall ensure that at least the victims of serious crimes have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law. 3. Member states shall ensure that victims are notified without unnecessary delay of their right to receive, and that they receive sufficient information to decide whether to request a review of any decision not to prosecute upon request. … Article 16 Right to decision on compensation from the offender in the course of criminal proceedings 1. Member states shall ensure that, in the course of criminal proceedings, victims are entitled to obtain a decision on compensation by the offender, within a reasonable time, except where national law provides for such a decision to be made in other legal proceedings. 2. Member states shall promote measures to encourage offenders to provide adequate compensation to victims.”
“…the limited language of article 2(1) [of the Windsor Framework]’s reference to the diminution of rights has indirectly [led] via a reading into the RSEO chapter of the [Belfast Agreement] of the entirety of the [Charter] (which did not exist at the time), a general and free-standing source of civil, political, economic and social rights accompanied by the most powerful remedial consequences known to domestic law (namely the disapplication of primary legislation of the sovereign Parliament)”
“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights…, with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”
“The Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law.” (Emphasis added.)
“The test is not whether the claimant is personally within the scope of EU law in some way. The issue must be judged by reference to the test set by article 51, which is directed to ‘implementation’ of EU law. Once it is determined that EU law does not require more…than practical support… that also sets the limits of what is involved in its implementation. Although it is open to the state to provide more generous support (‘gold-plating’, as it is sometimes called), that is the exercise of a choice under national law, not EU law.”
“88. It follows that, where they grant that right in circumstances such as those in the main proceedings, the authorities of the host Member State implement the provisions of the FEU Treaty on Union citizenship, which, as pointed out in para 62 above, is destined to be the fundamental status of nationals of the Member States, and that they are accordingly obliged to comply with the provisions of the Charter.” (Emphasis added.)
“The adversarial nature of the proceedings is evidenced by the fact that in the case of the death of Pearse Jordan alone there have been 24 judicial reviews, 14 appeals to the Court of Appeal, 2 hearings in the House of Lords and one hearing before the European Court of Human Rights. The issues in dispute have included questions of scope, relevance and disclosure of materials. If the existing legacy inquests are to be brought to a conclusion under the present system someone could easily be hearing some of these cases in 2040.”
“…the obligation to protect the right to life underarticle 2 of the Convention , read in conjunction with the state’s general duty underarticle 1 of the Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.” (Emphasis added.)
“… it appropriate to specify that compliance with the procedural requirement of article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family and the independence of the investigation. These elements are inter-related and each of them, taken separately, does not amount to an end in itself, as is the case in respect of the independence requirement of article 6. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues, including that of independence, must be assessed.” (Emphasis added.)
“In summary, compliance with the procedural requirement of article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family and the independence of the investigation.”
“… are inter-related and each of them, taken separately, does not amount to an end in itself.”
“… are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues must be assessed.”
“… did not intend for the specific requirements of the duty to investigate to be considered in a piecemeal and incremental fashion. As the separate requirements … are not ends in themselves, compliance with the essential parameters should be considered jointly and not separately.”
“It is axiomatic that the greater the delay, the greater the difficulty the authorities will have in complying with the other essential parameters of an effective investigation since the lapse of time will inevitably be an obstacle to the location of witnesses and the ability of witnesses to recall events reliably (see Brecknell v the United Kingdom, para 71). Consequently, the Court has accepted that the extent to which the requirements of effectiveness, independence, promptness and expedition, accessibility to the family and sufficient public scrutiny apply may well be influenced by the passage of such a considerable amount of time (ibid, para 72).”
“… the Strasbourg court does not require absolute independence but mandates that the persons and bodies responsible for the investigation are sufficiently independent of the persons and structures who may be responsible for the death or inhuman or degrading treatment which is the subject of the investigation. … The adequacy of the degree of independence falls to be assessed in the light of the circumstances of the specific case.”
“[A]s with any criminal offence, the crime of murder may be covered by an amnesty. That in itself does not contravene the Convention unless it can be seen to form part of a general practice aimed at the systematic prevention of prosecution of the perpetrators of such crimes. The Commission notes that as a result of the amnesty law adopted in this case in the light of the special circumstances, ie the political situation in New Caledonia, the prosecution of those suspected of murdering the applicants’ close relatives lapsed. Accordingly, the question which arises is whether this infringed the right protected byarticle 2 of the Convention . The Commission considers in this connection that the amnesty law, which is entirely exceptional in character, was adopted in the context of a process designed to resolve conflicts between the various communities of the islands. It is not for the Commission to assess the advisability of the measures taken by France to that end. The State is justified in adopting, in the context of its criminal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public in having the right to life protected by law. In the present case, the Commission considers that such a balance was maintained and that there has therefore been no breach of [article 2].”
“the Convention organs have already held that, even in such fundamental areas of the protection of human rights as the right to life, the State is justified in enacting, in the context of its criminal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public…”
“Admittedly, the possibility of a conflict arising between, on the one hand, the need to prosecute criminals and, on the other hand, a country’s determination to promote reconciliation in society cannot generally speaking be ruled out. In any event, no reconciliation process of this type has been put in place in Mauritania.”
“However, as the Court has already observed, the prohibition of torture occupies a prominent place in all international instruments relating to the protection of human rights and enshrines one of the basic values of democratic societies. The obligation to prosecute criminals should not therefore be undermined by granting impunity to the perpetrator in the form of an amnesty law that may be considered contrary to international law.”
“In the present case the applicant was granted amnesty for acts which amounted to grave breaches of fundamental human rights such as the intentional killing of civilians and inflicting grave bodily injury on a child … a growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances.” (Emphasis added.)
“It is not the function of our domestic courts to establish new principles of Convention law. But that is not to say that they are unable to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law. In situations which have not yet come before the [Strasbourg] court, they can and should aim to anticipate, where possible, how the [Strasbourg] court might be expected to decide the case, on the basis of the principles established in its case law. … The application of the Convention by our domestic courts, in such circumstances, will be based on the principles established by the [Strasbourg] court, even if some incremental development may be involved.” (Emphasis added.)