In the matter of an application by Gemma Gilvary for Judicial Review (Appellant)

Case summary

Case ID

UKSC/2025/0017

Parties

Appellant(s)

Gemma Gilvary

Respondent(s)

Secretary of State for Northern Ireland

Issue

Did the Court of Appeal err: (i) in concluding that the appellant’s claim under article 3 ECHR, although beyond the temporal scope of the Human Rights Act 1998, did not satisfy the ‘Convention values’ test? (ii) in not applying its findings and those of the court below in respect of article 14 ECHR and, separately, the Windsor Framework to the appellant’s case? Alternatively, does the common law prohibition of torture act as a limit upon the sovereignty of Parliament?

Facts

The appellant is Gemma Gilvary. She is the sister of Maurice Gilvary who was “disappeared” by the IRA on 12 January 1981. Evidence suggests that Mr Gilvary was subjected to torture and was subsequently murdered because he was identified to the IRA as an informer by state agents, including a police officer. This information arose out of Operation Kenova, an investigation into the activities of an alleged state agent associated with the IRA, codenamed Stakeknife. The appellant now notes that the Operation Kenova team have since confirmed that there is no evidence of Stakeknife’s direct involvement in Mr Gilvary’s case, albeit that the IRA’s internal security unit was involved. The unit is believed to have been infiltrated by state agents. The appellant’s position is that available evidence suggests: (i) an officer in the Royal Ulster Constabulary (RUC), under questioning following his arrest, had identified Mr Gilvary as a state informant; (ii) there were police failings to protect Mr Gilvary following his identification as an informer to the IRA; and (iii) there was an apparent failure by the police to effectively investigate Mr Gilvary’s case. On 8 May 2024, section 45 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 came into force. That section had the effect of bringing an end to Police Ombudsman for Northern Ireland (PONI) investigations into certain conduct forming part of the Troubles. As a result, PONI is now no longer investigating Mr Gilvary’s case. Prior to the coming into force of the 2023 Act, on 19 September 2023, the appellant made an application for judicial review to the High Court. The appellant’s action was one of a number of cases which sought to challenge the compatibility of the provisions of the 2023 Act under the Human Rights Act 1998. The appellant’s position was that Parts 2 and 3 of the 2023 Act would operate in such a way as to prevent criminal investigations into allegations of torture and potentially grant immunity to those who have committed such acts in direct contravention of article 3 ECHR. The High Court found a number of the ‘immunity provisions’ to be incompatible with articles 2 and 3 ECHR but dismissed the appellant’s application principally on the basis that it was outside of the temporal scope of the 1998 Act. In hearing a number of the appeals together, the Court of Appeal decided that provisions of the 2023 Act were incompatible with article 3 ECHR. It did not apply that finding to the appellant’s case as affirmed that the appellant’s case fell outside of the temporal scope of the Human Rights Act 1998 and that there was insufficient information that could allow it to conclude the facts of the case met the ‘Convention values’ threshold. It stayed (paused) the appellant’s appeal in anticipation of forthcoming legislative changes which might allow further investigative steps in the appellant’s case, following concessions made by the Secretary of State for Northern Ireland as to the incompatibility of certain provisions in the 2023 Act. The appellant now seeks permission to appeal to the Supreme Court.

Date of issue

5 February 2025

Case origin

PTA

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