In this issue
Welcome
Re McGuigan’s application for judicial review [2019] NICA 46  - The ‘hooded men’: State authorised torture on home ground
Appeal against Sentence – England and Wales
Hong Kong Case Summaries
Appeals against conviction – England and Wales
Re McGuigan’s application for judicial review [2019] NICA 46  - The ‘hooded men’: State authorised torture on home ground

By Nichola Higgins

 

The internment operation commenced at 4 am on 9 August 1971 with the arrest of 350 people, twelve of whom would ultimately be taken to a secret interrogation centre at Ballykelly in Northern Ireland.

 

The Secretary of State for Defence and the Home Secretary discussed the proposed interrogation process on 9 and 10 August 1971 and the interrogation began on 11 August 1971 at 7pm; after the Director of Intelligence had spent one hour explaining the techniques to Brian Faulkner, then Prime Minister of Northern Ireland.

 

The interrogation took place over the course of the next week.  The techniques used included:

  1. Hooding; putting a dark coloured bag over the detainee’s heads for long periods of time;
  2. Wall-standing: a stress position that puts most of the body’s weight on the fingers;
  3. Subjection to a continuous loud noise;
  4. Deprivation of sleep;
  5. Deprivation of food and drink.

Detainees also alleged physical mistreatment including beatings and being thrown into walls or a concrete post.

 

The above was known by 1978. In addition it was known that the use of the techniques was unlawful and in breach of Article 3 of the European Convention on Human Rights, that the UK Government had accepted that they had been authorised at a senior level and that it chose not to co-operate fully with the investigation carried out by the European Commission and that the UK Government had made it clear that it did not intend to carry out any criminal investigation.  It took 41 years before the techniques applied to the “Hooded men” would be recognised as torture by this majority judgment of the Northern Ireland Court of Appeal delivered on 20 September 2019.

 

The matter arose out of an application for judicial review of the decision of the PSNI that there was no evidence to warrant any further investigation into the allegation that the UK Government had authorised and used torture in Northern Ireland.

Following initial events in the 70s, an enquiry took place and a separate report as well as a case brought by the Irish Government against the UK Government in the European Court of Human Rights (the first time one state had taken a case there against another state) in which the ECHR found that the techniques amounted to inhuman and degrading treatment - but not torture.  The position was reviewed in Selmouni v France (1999) 29 EHRR 403, however the earlier ruling has been deployed to justify aggressive interrogation techniques.

 

Thereafter, all went quiet until August 2013 when researchers happened across archive material relating to the Ireland v UK case which had been authorised for release in 2003.  The documentation disclosed correspondence which implicated Lord Carrington (Secretary of State for Defence in 1971) and suggested that the UK Government had withheld evidence from the Strasbourg institutions that the effects of “deep interrogation” were more prolonged and serious than first thought.

 

Following this, Gerry Kelly MLA tabled a question for the Chief Constable of the PSNI asking what action had been taken following assertion in official documents that Lord Carrington had authorised such methods in Northern Ireland.  The response was “The PSNI will assess any allegation or emerging evidence of criminal behaviour, from whatever quarter, with a view to substantiating such an allegation and identifying sufficient evidence to justify a prosecution and bring people to court". It was the nature of the review that ultimately led to the application.

 

Article 2 of the ECHR also requires some form of effective official investigation when individuals have been killed as a result of the use of force.  Post Geraldine Finucane’s Application [2019] UKSC 7, this duty is detached which means that the duty can arise even if the death occurred before the entry into force of the Human Rights Act in October 2000. 

 

Ultimately, the majority judgment denied the existence of a right to a new investigation compliant with Articles 2 of the Convention on the basis that the test established in Brecknell v UK (2008) 46 EHRR 42 (which requires a temporal connection, a genuine connection and new information which casts a new light on circumstances) was not satisfied. The new information did not substantially change the picture that was public knowledge since 1978. 

 

However, they did find that the assurance of the Chief Constable of the PSNI was a clear and unambiguous undertaking which gave rise to a legitimate expectation of a criminal investigation. That expectation was not met by the limited investigation that had been conducted by a research assistant. The scope of the investigation to date was therefore irrational. 

 

The case is significant for three reasons:

 

First, the confirmation that torture was used and authorised by the UK Government is clearly significant.  It is an example of the ECHR as a living instrument, even if it is toothless with regard to inadequate past investigations. In addition, the retrospective categorisation of the interrogation methods may pave the way for other victims of torture to seek redress and for their abusers to be held to account.

 

Secondly, the case is an example of the delicate balancing exercise at the heart of the intersection between the need for legal certainty, new material and the duty to investigate; where the latter means, as it surely must, the duty to conduct a full and independent investigation.  

 

Thirdly, the final paragraph, serves as a judicial warning for our times: “It is, of course, entirely appropriate in a modern democracy that civil servants should protect the political reputation of their Ministers but there is a real danger that the rule of law is undermined if that extends to protecting Ministers from investigation in respect of criminal offences possibly committed by them”.

 

This judgment was followed four days later by the Supreme Court decision in Miller 2.  A sober reminder of the importance of an independent judiciary.

 

You can read the summary of the judgement here.

 

If you would like to discuss this case with Nichola Higgins, please email here.