Family of 1972 victim '˜let down by criminal investigation system'

Mr Justice Maguire also held that the PSNI lacks the necessary independence to oversee further inquiries into the killing of Jean Smyth.

He granted her family a declaration that a proposed probe by the force’s Legacy Investigations Branch would breach human rights requirements.

In a withering critique of investigations carried out at the time and subsequently by the Historical Enquiries Team (HET), the judge further raised the possibility of perceived bias and a culture of preferential treatment for soldiers linked to civilian deaths.

The verdict came in a legal bid by relatives of Mrs Smyth to ensure a fully impartial new probe by an outside agency with no links to the Ministry of Defence.

The 24-year-old mother of one was killed by a single shot to the head as she sat in a car on the Glen Road in June 1972.

At the time the RUC informed her family that it was probably an IRA gunman who opened fire.

But records uncovered at the National Archives in Kew, London in 2014 suggest the British Army’s Military Reaction Force (MRF) fired shots in the area and were allegedly involved in her killing, the court heard.

Delivering judgment on Friday, Mr Justice Maguire stressed that she was a wholly innocent person in the wrong place at the wrong time.

He said: “The awkward truth in this case is that the system for investigating serious crime has let her and her family down over a period of decades now.”

Detectives are currently examining nearly 20 shooting incidents as part of wide-ranging inquiries into the MRF’s activities.

Counsel for the family had argued that fresh evidence links the British state’s own agents to the killing of an innocent citizen.

It was claimed that uncovered material points to MRF involvement in a systematic abuse of force, with the truth concealed in the past by both Army and police officers.

The findings of two previous probes into the death were flawed and undermined public confidence in the PSNI conducting an impartial investigation, the barrister contended.

Lawyers representing the chief constable countered that the PSNI is “institutionally distinct” from its RUC predecessor and has the independence required for a new investigation.

But the judge emphasised that public perception was of paramount importance.

He ruled that the PSNI’s Legacy Investigation Branch (LIB) “at this time lacks the necessary element of independence to enable it to pursue the issue of further investigations into the death of the deceased”.

Describing the initial probe as “perfunctory”, he pointed to a range of possible explanations.

Potentially benign explanations included the overwhelming police workload and lack of sophistication in dealing with the “horror” of events in 1972.

But Mr Justice Maguire also raised the possibility that it might have suited the authorities to portray the case as another terrorist atrocity rather than scrutinising the events more critically.

Stressing that there were definitive answers about the true facts of the case, he reached an overwhelming impression that the initial investigation lacked rigour.

Based on the newly available military logs, the judge said it was obvious the inquiry should have focused on a scenario where Mrs Smyth’s death was due to military gunfire.

It raised the real possibility of a superficial and ineffective probe due to at least unconscious bias.

Turning to the involvement from 2006 of the now-defunct HET, Mr Justice Maguire was equally scathing.

Its investigators did not look at the possibility of soldiers being involved in the death and made no attempt to seek police or military records, the court heard.

This may have been due to a lack of enthusiasm to introduce the prospect that the killing was attributable to a non-terrorist source, the judge suggested.

A fair minded observer, he concluded, would reach the same conclusion about a lack of independence in its inquiry.

Referring to reports carried out by HM Inspectorate of Constabulary, he said: “These support the notion that there was a culture in the HET of preferential treatment for soldiers who were under investigation in relation to civilian deaths.”

The judge added: “The absence of an effective investigation of Mrs Smyth’s death at the time was bad enough, but it has been compounded by the poor quality of the review carried out by the HET, which itself had been designed to be insulated to a substantial degree from association with the interests of the PSNI, as successor to the RUC.”

Granting a declaration that the current police plans breach Article 2 requirements under the European Convention on Human Rights, he confirmed: “In the court’s opinion, that (fair minded) observer would conclude that for the investigation to go forward now under the auspices of the LIB would be wrong as in the circumstances the PSNI would not be perceived as passing the test for independence for this purpose.”