The decision by the PSNI to not take further steps to investigate the question of identifying and prosecuting those responsible for criminal acts during the interrogation of the Hooded Men, has been quashed in the High Court in Belfast.
Delivering the judgment, Mr Justice McGuire found that the decision to end the inquiry was seriously flawed, but did not prescribe how the issue should be taken forward.
The present challenge was brought by Francis McGuigan (one of the “Hooded Men”) and Mary McKenna, daughter of the late Sean McKenna, another of the hooded men.
As well as seeking a judicial review of the PSNI’s decision, the applicants also challenged decisions of the Chief Constable, the Department of Justice and the Northern Ireland Office (the respondents) 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 compliance with Articles 2 and 3 of the Convention, common law, and customary international law.
Interrogation in depth
In 1971 the first internment operation, Operation Demetrius, led to 14 men being taken to a British Army facility for “interrogation in depth”.
The decision to conduct deep interrogation was said to have been made by the NI Government in concurrence with the UK Government.
Operation Demetrius led to allegations by and on behalf of those detained of physical brutality and ill-treatment.
In November 1971, the Home Secretary told the House of Commons that there was no evidence of “physical brutality or torture” – leading to the Parker Inquiry, which explored whether a policy change was required.
The reports arising from the Parker Inquiry acknowledged that some, if not all, of the techniques in use involved unlawfulness and the possible commission of criminal offences.
The Parker report was published and debated in March 1972 and lead to the Prime Minister stating that the techniques would not be used in future as an aid to interrogation. He further stated that if a Government did decide that additional techniques were required for interrogation, they would probably have to come to the House of Commons to ask for the requisite powers.
All 14 men who were subjected to the deep interrogation methods brought civil claims for damages directed against Ministers, which were settled and compensation of £10,000 to £25,000 was awarded.
In December 1971, the Irish Government submitted an application to the European Commission for Human Rights against the UK – “the Ireland-UK inter-State case” – on the grounds that the persons detained were subjected to treatment in breach of Article 3 carried out by the security forces of the UK.
The Commission and subsequently the European Court of Human Rights found that the UK had substantively breached Article 3 in the context of deep interrogation. However, the ECtHR held that it did not have the power to direct the UK to institute criminal or disciplinary proceedings against those members of the security forces who had committed acts in breach of Article 3 or against those who condoned or tolerated such breaches
In June 2014, RTÉ broadcast a documentary which referred to materials it said were newly discovered and which had not been before the Commission and ECtHR.
The documentary asserted that torture had been authorised at the time by a UK Government Minister and that the UK Government had withheld evidence from the Commission and ECtHR which tended to undermine the UK case that the after-effects of the use of the five techniques were not long lasting or severe.
In particular, the programme referred to a memorandum written by Merlyn Rees, which gave rise to a claim that Lord Carrington, then Defence Secretary, had in 1971 authorised torture.
The RTÉ broadcast led to questions being asked at the Northern Ireland Policing Board about what steps the PSNI proposed to take, in particular in relation to the allegation that torture had been authorised by a UK Government Minister.
Ultimately the PSNI decided that that there was no evidence to warrant an investigation into the allegation that the UK Government authorised the use of torture in NI in 1971.
Three main issues were identified:
- The Convention Issue:
That the respondents were guilty of failing to ensure an effective investigation is carried out relating to the performance of the UK of its procedural obligation under Articles 2 and 3; and that there was a duty enforceable in domestic law on the State to carry out an effective official investigation into the treatment of the “hooded men”, capable of leading to the identification and punishment of those responsible for the methods used.
The Court concluded this issue in favour of the respondents and held that, as a matter of domestic law Articles 2 and 3 were not engaged in this case because of the temporal restriction on the operation of the HRA.
- The Independence Issue:
If the court finds that an effective official investigation must be conducted by the State, the PSNI should not be permitted to carry it out as it lacks the requisite measure of independence required by the Convention.
Considering its conclusion about the Convention issue, the Court concluded that this ground of challenge must also fail.
- The Common-Law Issue:
Even if the Convention as a matter of domestic law does not require the steps referred to above to be taken, that such steps were required as a matter of common law. The Court found that this ground was made out, and stated that the issue was considered in In Re McKerr  UKHL 12.
The applicants challenged the way in which the PSNI dealt with the events which occurred in the aftermath of the RTÉ programme
The applicant claimed that this was an unreasonable decision which had the effect of bringing the investigation of the matter by the police to an end prematurely.
The Court considered that the decision to end the inquiry was seriously flawed and was inconsistent with the broad approach which the Chief Constable had adopted.
The Court quashed the decision made on behalf of the PSNI not to take further steps to investigate the question of identifying and, if appropriate, prosecute those responsible for criminal acts.
- by Seosamh Gráinséir for Irish Legal News