About this case:

• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Sir Declan Morgan

Delivering the leading judgment, Sir Declan Morgan agreed with the High Court that the Chief Constable had made a statement to the NI Policing Board in 2014 which was a clear and unambiguous undertaking as to the nature of the investigation that should be carried out and that it created a legitimate expectation of a procedural kind to the public at large.

Background

In 1971, the decision to introduce internment and the use of five interrogation techniques (Operation Demetrius) led to 14 men being taken to a British Army facility for “interrogation in depth”. The men, commonly referred to as the “Hooded Men”, were severely beaten and subjected to:

• Hooding;
• Stress positions such as wall standing;
• White noise;
• Deprivation of sleep;
• Deprivation of food and water.

In December 1971, Ireland made an inter-state application to the European Commission of Human Rights against the United Kingdom, alleging, inter alia, ill-treatment and torture by the British security forces, contrary to Article 3 of the ECHR (the Government also made allegations of violations under Articles 1, 2, 3, 5, 6 and 14 of the Convention). The Commission found that the use of the five interrogation techniques amounted to torture and inhuman and degrading treatment.

In 1978, the European Court of Human Rights disagreed with the Commission’s finding of torture, but held that the techniques amounted to inhuman and degrading treatment.

Discovery of documents withheld from the ECtHR

In June 2014, RTÉ broadcast a documentary which disclosed correspondence that had not been before the Commission and ECtHR.

In December 2017, Ireland made an application to the ECtHR requesting revision of the 1978 judgment on the grounds that the UK government had withheld information at the relevant time which contradicted its stance that the effects of the five techniques were “minor and short term”. The uncovered documents demonstrated that the UK had withheld this information from the Commission and the ECtHR. The application to revise the 1978 ruling was, however, dismissed by a majority of six to one.

Undertaking by the Chief Constable

The RTÉ documentary also led to the Chief Constable of the PSNI being asked, at the Policing Board in July 2014, what action would be taken, particularly in relation to the allegation that torture had been authorised by a UK Government Minister. The Chief Constable’s response was that “the PSNI will assess any allegation or emerging evidence of criminal behaviour … with a view to substantiating such an allegation and identifying sufficient evidence to justify a prosecution and bring people to court”.

Following an investigation by a PSNI researcher, the decision was taken 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.

Thereafter, applications for judicial review were brought by Francis McGuigan (one of the Hooded Men) and Mary McKenna (the daughter of another of the Hooded Men – the late Sean McKenna).

In the High Court in October 2017, Mr Justice Paul Maguire declared that the PSNI’s decision not to take further steps to investigate the question of identifying and prosecuting individuals should be quashed.

Court of Appeal

The PSNI appealed the decision, however the Court of Appeal upheld the High Court’s decision by a majority of two to one (the Lord Chief Justice Sir Declan Morgan and Lord Justice Ben Stephens concurring, Lord Justice Donnell Deeny dissenting).

The Lord Chief Justice said that the ECHR was a living instrument, and with that in mind, the treatment to which the Hooded Men were subjected would, if it had occurred today, properly be characterised as torture. However, given the passage of time, the test had not been met to enable an Article 2 or 3 procedural investigation to take place.

Considering the legal consequences of the undertaking given by the Chief Constable in July 2014, the Court noted the decision in Geraldine Finucane’s Application [2019] UKSC 7, which said that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so.

The Court was satisfied that the Chief Constable’s statement to the Policing Board was a clear and unambiguous undertaking as to the nature of the investigation that should be carried out and that it created a legitimate expectation of a procedural kind to the public at large. The Court said “the investigation carried out by the researcher tasked with this issue was unduly narrow and appears to have been focused solely in establishing whether there was express information given to a particular Minister [Lord Carrington] of the application of torture. It is disappointing to note that this inadequate investigation was signed off by two more senior officers. That may raise an issue about whether there is likely to be any public confidence in an investigation without practical independence from the PSNI”.

The Court added that it was “entirely appropriate” for civil servants to protect the political reputation of their Ministers, but that “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”.

Finding the approach to the investigation irrational, and that the expectation remained unfilled, the court made the following conclusions:

• The treatment to which Mr McGuigan and Mr McKenna were subject would if it occurred today properly be characterised as torture bearing in mind that the Convention is a living instrument.
• The Brecknell test can apply in domestic law so as to enable an Article 2 or 3 procedural investigation to take place in respect of a death occurring before 2 October 2000 but consider that the test is not satisfied in this case taking into account the conclusion of the revision judgment in Ireland v UK.
• The genuine connection test in Janowiec is not satisfied and we question whether the Convention values test is satisfied bearing in mind the conclusion of the Court in Ireland v UK and the extent of the investigation that has taken place already.
• There is no common law obligation identical or similar to the procedural Article 2 or 3 obligations.
• There is no procedural obligation imposed by customary international law in this case.
• The Chief Constable’s answer to the question posed at the meeting of the NI Policing Board in July 2014 gave rise to a legitimate expectation of the type described in the judgment. The Chief Constable has not resiled from that undertaking.
• The investigation carried out by the researcher on behalf of the Historical Enquiries Team was irrational and did not honour the undertaking given by the Chief Constable.
• The High Court decision to quash the outcome of that investigation was well within the trial judge’s area of discretionary judgment. In light of the manner in which the investigation was pursued it seems unlikely that an investigation by the Legacy Investigation Branch of the PSNI or its successor is likely to engender public confidence.
• The passage of time may considerably hamper the progress of any such investigation.

Dissenting judgment

Lord Justice Deeny said he was unable to fully agree with the judgment of the Court in respect of two matters.

Firstly, Lord Justice Deeny said it was not appropriate for the Court to make a finding that the treatment should be re-labelled as torture 48 years after the events. He cited the principle of legal certainty, and said for the Court to make an actual finding that the “deplorable conduct” constituted torture was inappropriate.

Secondly, Lord Justice Deeny disagreed with the conclusion that the Chief Constable’s answer at the Policing Board in 2014 gave rise to a legitimate expectation. He said he would find in favour of the Chief Constable and reverse the decision of the trial judge insofar as he found against him. He commented that the decision not to investigate further was one the Chief Constable was entitled in law to make.

• by Róise Connolly for Irish Legal News