Belfast appeal judge strongly dissents against his court’s decision to designate treatment of ‘hooded men’ as torture

Sir Donnell Deeny disagreed with the judgment of the lord chief justice, Sir Declan Morgan, and the third appeal court judge, Lord Justice Stephens.

In a majority ruling, the court said it was “satisfied that the treatment to which hooded men had been subjected to would if it occurred today properly be characterised as torture”.

It held that the interned men had a legitimate expectation that police would further investigate claims that their treatment was sanctioned by the British government.

An investigation carried out after allegations of ministerial involvement emerged in a 2014 television documentary failed to honour an undertaking given by former PSNI Chief Constable George Hamilton.

Sinn Fein MLA Gerry Kelly had pressed Mr Hamilton at a Policing Board meeting in 2014 on what action was being taken on assertions in documents that Lord Carrington authorised use of “torture”.

Mr Kelly was told then the PSNI would assess alleged criminal conduct. The two appeal judges held: “We are satisfied that the chief constable’s answer to the question posed by Mr Kelly at the meeting of the Policing Board gave rise to a legitimate expectation of the type described in the judgment.”

But the court rejected claims that the state was in breach of a legal obligation to carry out a full and independent inquiry into the affair — because the events occurred decades before human rights legislation came into force.

The verdict came in a failed appeal by the PSNI against a previous ruling that its decision to end preliminary inquiries into the men’s 1971 interrogation was seriously flawed.

Sir Donnell, however, said he could not agree that it is appropriate for the court to make a finding that the treatment is to be re-labelled as torture 48 years after the events.

He noted that the European Court of Human Rights (ECHR), by a majority of six to one, had dismissed a request by the Republic of Ireland to substitute its 1978 finding of “inhuman and degrading treatment” for one of torture.

Sir Donnell cited “the principle of legal certainty” which means there must be an end to litigation and said for the court to find that the ‘deplorable conduct’ constituted torture was inappropriate in four respects:

• It altered a finding of fact by the judge for no good reason;

• It ran counter to the finding of the court with the ultimate responsibility for the vindication of the ECHR which chose not to make that finding applying the appropriate test;

• It contradicts the principle of legal certainty;

• It appeared to be ‘an unnecessary and otiose’ finding and that the conduct in 1971 had a ‘larger dimension than an ordinary criminal offences and would amount to the negation of the very foundations of the convention’.

Sir Donnell said that neither a memo from then Labour Home Secretary Merlyn Rees memo saying that torture had been authorised by a preceding Tory minister Lord Carrington nor other material relied on by the appellants “seemed to justify a reopening of the investigation”.

He cited case law which stated “the required connection for the [European Convention on Human Rights] values test may be found to exist if the triggering event was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundations of the convention as would be the case with serious crimes under international law such as war crimes, genocide or crimes against humanity”.

Sir Donnell said that “however deplorable the treatment here it is not to be equated with ‘war crimes, genocide or crimes against humanity’”.

He added: “The mere fact that the events happened 48 years ago would strongly point against such a course or the application of [an ECHR] test. So is the fact that those who authorised the techniques, whether in some lesser form or as actually applied in the brutal way they were, are either dead or, as Lord Carrington was at the time of the hearing at first instance, very elderly.

“He has since died. What is to be gained by going over this ground again? It seems to me therefore that this would be an erroneous application of the convention values test which is to be kept for something more exceptional.”

Sir Donnell also disagreed with the conclusion that the chief constable’s answer at the Policing Board in 2014 gave rise to a legitimate expectation.

In determining whether there is a legitimate expectation the court has to consider whether the Chief Constable gave a ‘clear and unambiguous undertaking’ which is enforceable in law.

He described Mr Hamilton’s answer to “merely a statement of the duty on the PSNI to assess allegations of, or evidence of criminal behaviour”.

The answer to Mr Kelly was “in the most general terms and not what the courts had in mind where they have found public authorities to have created a legitimate expectation of which they are in breach”.

Sir Donnell added: “It might not be an unreasonable implication from [ACC Will Kerr’s letter dated 14 August 2014] that the PSNI considered the matter had been disposed of; they had not ‘resiled’ from any ‘undertaking’ but that they had researched the matter and said they would. It is true to say that in subsequent correspondence the PSNI said they were open to consider any further evidence that came to light. It would have been preferable for ACC Kerr to give more detail at that stage.”

Sir Donnell said: “It seems to me that the police have much more pressing duties of crime prevention and law enforcement than to conduct historical research into the matters of which the appellants complain.

“It does not seem to me appropriate to interfere with the decision of the chief constable contained in the ACC letter of 17 October 2014 on discretionary grounds.

“I think it is a common sense decision to take the course adopted by the chief constable. Certainly it is within his area of discretion and should not be interfered with by the court.

“Given the passage of time, the elaborate investigations that have taken place in the past and the paucity of evidence that had come to light from [the researcher’s] investigation it seems to me a decision that could not possibly be described as irrational.”

Sir Donnell Deeny said he would find in favour of the chief constable on his appeal and reverse the decision of the trial judge [Mr Justice Maguire] 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.

The court, however, by a two to one majority said that an investigation carried out by a researcher on behalf of the now defunct Historical Enquiries Team “was irrational and did not honour the undertaking given by the chief constable”.

Acknowledging the passage of time may hamper to progress of any further probe, the judges accepted civil servants should protect the political reputation of ministers in a modern democracy.

But they cautioned: “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 from them.”

Outside, one of the hooded men who brought the case, Francis McGuigan, said: “Today’s judgment makes it expressly clear that the treatment that I suffered at the hands of ministers was torture and should be investigated by an independent police force.

“This treatment cannot be forgotten, it has had lasting and terrible effects on my mental health to this day, and I can only hope that this judgment will assist someone somewhere in the world that suffers torture at the hand of their government.”

His solicitor, Darragh Mackin, added: “Today is a significant as the court firmly said that the rule of law is undermined if protection provided extends to protecting ministers from investigation in respect of criminal offences committed by them.

“It is now essential that an effective and independent investigation is commissioned without any further delay.”