Belfast Project: High Court Rejects McIntyre’s Application for Judicial Review

Several news sites, including the UTV, are reporting that a judge of the Belfast High Court has rejected Anthony McIntyre’s application for judicial review of the UK authorities’ decision to seek the Belfast Project interview materials under the mutual legal assistance treaty between the United States and the United Kingdom. A written decision is not yet available, but it appears that the judge rejected McIntyre’s position both on the facts and on the law. One of the factual bases for McIntyre’s request for an injunction was the supposed risk of harm to him if the interviews are turned over to the PSNI. The judge found:

In light of the unequivocal response from the PSNI, supported by the threat assessment from the security authorities, I conclude that the applicant has failed to make out an arguable case that disclosure of the Boston College tapes would, as he claimed, materially increase the risk to his life or that of his family.

Following the approach taken by the Court of Appeals for the First Circuit here in Boston, the judge also rejected the premise of McIntyre’s legal argument, which depended on Article 2 of the European Convention on Human Rights:

“Investigating murder and gathering relevant material is not only a requirement of domestic law, but it is also a requirement of the positive duty which Article 2 imposes upon contracting States,” he said.

Rejecting Mr McIntyre’s application for judicial review, the judge added: “On the applicant’s case the PSNI is prohibited from receiving material no matter how probative—even a confession to murder if it exists—because of the risk from the IRA, dissident or otherwise.

“The very notion that a risk generated by the perpetrators or their associates could require the PSNI, or indeed the Court, to effectively suppress material potentially relevant to murder is fundamentally inconsistent with the very nature of the rule of law and Article 2 itself.”

I will try to figure out what the appellate options for McIntyre in Belfast are. But for now it seems that all that stands between the PSNI and the interviews is Justice Breyer’s stay.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

9 thoughts on “Belfast Project: High Court Rejects McIntyre’s Application for Judicial Review

  1. Meanwhile, take a look at this story from an Irish newspaper this week:

    So the clearer the evidence becomes—and we now have multiple and direct public confessions of involvement from one of the people who participated in the kidnapping and murder of Jean McConville—look what’s happening and what’s not happening. The police have not arrested, or even questioned, the person confessing to her role in the murder. But the public confessions are being used in, yes, political speeches.

    The Department of Justice is participating in Irish politics, not a murder investigation.

    1. Chris, you assume that we know precisely what the UK authorities are investigating! The more I think about this, the more I come to think that the UK’s investigation is much broader than the McConville murder. That’s the best way, I think, to make sense of what we know, namely that Judge Young, who reviewed the Price interview and the others in camera, found them to be relevant given what he knew, but we don’t, about the scope of the investigation. This is true whichever version of the Price interview—Ed Moloney’s or the version given by Dolours Price herself—you accept as most likely true.

      1. But the second set of subpoenas very narrowly, explicitly, and specifically demanded all interviews germane to the McConville murder. And the first set demanded the interviews of two people who are known to have participated in it.

        1. You’re right, but is it easier to imagine that Judge Young saw relevance where there was none, or that Ed Moloney is not telling the truth about what’s in the interview? I don’t think so. That’s the puzzle.

  2. Ted,

    one thing we can say for certain is that the British state is not investigating the killings organised by the British Army Force Research Unit and RUC Special Branch

  3. Despite the ruling, the PSNI will not yet automatically gain access to the tapes.

    Lawyers for Mr McIntyre are expected to lodge an appeal against Mr Justice Treacy’s decision.

    And any handover of the material has also been put on hold by the courts in America, pending a further hearing before the US Supreme Court.

    Mr McIntyre’s solicitor, Kevin Winters, confirmed: “We have consulted with our client and we are set to appeal.

    “We also welcome the stay that has been granted in the American courts because it prevents the handover of the tapes.

    “That decision assists Mr McIntyre while he deals with the outstanding appeal issues arising from today’s judgment.”

  4. What grounds would there be for an appeal?

    Will an appeal be granted, If the appeal is not granted is the next step the ECHR?

    If so aren’t these procedures doomed to fail, in particular the European route, as they contain the same argument and flaws as the Belfast case yesterday?

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    All of these steps could fail for the same reason the Belfast high court failed couldn’t they?

    Delaying tatics or can there be any hope of success, plus the expense. Litigation is expensive everywhere.

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