The High Court in Belfast has quashed the PSNI decision not to investigate those responsible for the ‘in depth’ interrogation of the ‘Hooded Men’.
The ‘Hooded Men’ is the name attributed to the group of fourteen men who were subjected to ‘in depth’ interrogation techniques during their internment in Northern Ireland in 1971. The five specific techniques employed by authorities involved the men being deprived of sleep, food and water, enduring continuous loud noises, being forced to maintain stress positions and being hooded for long periods of time. The Compton and subsequent Parker Inquiries were ordered following allegations of physical brutality and ill-treatment of detainees. The Compton Inquiry ruled the treatment of the interned men constituted physical ill-treatment but did not amount to brutality, while the Parker Inquiry found the techniques involved unlawfulness and the possible commission of criminal offences but were not wholly objectionable when subject to certain safeguards. In light of the findings of the Inquiries, and following considerable debate, the use of the techniques was suspended in March 1972.
The treatment of the men resulted in significant litigation. The men themselves brought civil claims for damages against the Government and settled for compensation of between £10,000 and £25,000. Concurrently the Irish Government brought an application against the UK to the European Commission for Human Rights. The Irish Government argued the treatment of the ‘Hooded Men’ was in violation of Article 3 of the European Convention of Human Rights and amounted to an administrative practice and a continued series of executive acts exposing sections of the population to torture or inhuman and degrading treatment. Both the Commission and the European Court of Human Rights found the UK had substantively breached Article 3 in the context of deep interrogation. The Commission held the treatment amounted to torture, whereas the ECtHR found it constituted inhuman and degrading treatment not amounting to torture and that the Court did not have the power to direct the UK to initiate criminal procedures against those who had committed the acts in breach of the Convention.
A 2014 RTE documentary revealed ‘newly discovered’ documents that purported to expose the UK Government had withheld evidence from the Commission and the ECtHR and which undermined the UK argument that the after-effects of the techniques were not long lasting or severe. In particular the programme referred to the ‘Rees memo’ which gave rise to the claim that Lord Carrington, then Defence Secretary, had authorised torture. Following the programme the PSNI committed to assess any allegation of torture having been authorised by the UK Government. In pursuance of this commitment a researcher was deployed to examine a range of documents. This analysis however determined there to be no evidence of the authorisation of torture and it concluded no useful purpose would be served in continuing an investigation.
Francis McGuigan, one of the ‘Hooded Men’, and Mary McKenna, daughter of the late Sean McKenna, another of the fourteen, sought judicial review of this decision of the PSNI not to pursue an investigation. In conjunction with this they challenged the decisions of the Chief Constable, the Department of Justice and the Northern Ireland Office as constituting a continuing failure to order and ensure a full, independent and effective investigation into torture at the hands of the UK Government and/or its agents in violation of Articles 2 and 3 of the Convention, common law and customary international law.
Three distinct legal issues arise out of the claims against the Chief Constable, the Department of Justice and the Northern Ireland Office: the Convention issue, the common law issue and the independence issue. In consideration of the Convention issue, the Court had to determine whether it would be likely that the ECtHR would find a breach and whether it would be open to the High Court to hold that there was a breach. The first consideration of the Court was to determine the potential admissibility of the claim. Despite the length of time that had elapsed the Court found, given that the activity in question ‘would amount to the negation of the very foundations of the Convention’, the case would be admissible to be heard in the ECtHR. The Court also determined that the material exposed in the RTE documentary met the threshold set out in the Brecknell doctrine and could be considered to warrant the revival of the obligation under Article 2 to carry out an effective investigation, but that it would be likely that the ECtHR would find this obligation remains to be fulfilled. The Court however held that this obligation does not apply in cases such as this where the events in question occurred prior to the commencement of the Human Rights Act 1998. This issue has previously been extensively examined by the Superior Courts and the decision of McKerr on the restriction on the operation of the HRA remains good law.
As a result of the Court’s conclusion on the Convention issue, the other grounds of the challenge must also fail. With regards the common law, the Court held McKerr applied equally to Article 3. Similarly the Court rejected that customary international law required a parallel effective official investigation. The Court did however provide an orbiter statement outlining the likely breach of the independence requirement that arises from the PSNI carrying out an investigation into those responsible for the mistreatment of the ‘Hooded Men’ given the numbers of its members who also served in the RUC.
Despite the failure of the challenges to the decisions of the Chief Constable, the Department of Justice and the Northern Ireland Office, the Court quashed the decision of the PSNI not to take further steps to investigate the question of identifying and, if appropriate, prosecuting those responsible for criminal acts. Analysing the work undertaken by the researcher appointed by the PSNI and the rational of senior officers in coming to the decision, the Court found the investigation ‘lacked focus’ and the decision made was seriously flawed and inconsistent with the broad approach generally adopted. The Court criticised the ‘narrowly based inquiry’, held the investigation should have been aimed at identifying criminal behaviour beyond that of the claim against Lord Carrington and considered it difficult to see why senior officers chose not to take the investigation further ‘given that it was plain that the methods used were unlawful and were capable of being viewed as criminal and given that no-one heretofore had been identified for potential prosecution’.
Click here for a summary of the judgment.