Ben Lowry: In the interests of taxpayers and balance, the PSNI has a duty to challenge the hooded men appeal court ruling

The PSNI has a duty to taxpayers to challenge a recent Belfast appeal court judgment.
The European Court of Human Rights at Strasbourg, which refused to redesignate the treatment of the hooded men as torture. Sir Donnell Deeny said the NI appeal court ruling making such a designation 48 years after the treatent of the men contradicted "the court with the ultimate responsibility for the vindication of the European Convention of Human Rights"The European Court of Human Rights at Strasbourg, which refused to redesignate the treatment of the hooded men as torture. Sir Donnell Deeny said the NI appeal court ruling making such a designation 48 years after the treatent of the men contradicted "the court with the ultimate responsibility for the vindication of the European Convention of Human Rights"
The European Court of Human Rights at Strasbourg, which refused to redesignate the treatment of the hooded men as torture. Sir Donnell Deeny said the NI appeal court ruling making such a designation 48 years after the treatent of the men contradicted "the court with the ultimate responsibility for the vindication of the European Convention of Human Rights"

The government has a duty to help the appeal, amid a legacy system clogged up with probes into state forces and a mountain of unsolved terrorism.

The case involves a judicial review taken by one of the so-called hooded men against a PSNI decision to drop an investigation into whether anyone was criminally responsible for their treatment.

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At the Policing Board in July 2014 the chief constable George Hamilton was questioned by the Sinn Fein MLA Gerry Kelly about an RTE programme on the hooded men. Mr Kelly asked what Mr Hamilton had done after “official documents” were found to have said the ex Tory minister Lord Carrington approved torture.

The chief constable replied that “the PSNI will assess any ... evidence of criminal behaviour … [to identify] evidence to justify a prosecution and bring people to court”.

Later in 2014, the PSNI said no such evidence had been found.

That decision was the basis of the legal case. Mr Justice Maguire in 2017 rejected many of the grounds of the challenge, but upheld a key point, as did the appeal court on September 27 (the web version of this article will link to the appeal ruling — it is a summary judgement that the court says cannot be read in isolation from the full ruling, but it is not yet published — see below).

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By a two to one margin, the appeal court endorsed Mr Justice Maguire’s quashing of the PSNI decision not to investigate further. Mr Hamilton had created a legitimate expectation of such a probe.

The court was also “satisfied that the treatment [of the Hooded Men] would if it occurred today properly be characterised as torture”.

There is an important background to this. In 2018 the Irish government tried to use the new evidence to get the treatment of the hooded men re-designated as torture by the European Court of Human Rights (ECHR) in Strasbourg, which in 1978 instead called it “inhuman and degrading treatment”.

In March 2018 Ireland lost, with six justices dismissing the bid (only an Irish judge supported it). Despite this signal that Strasbourg did not want to reopen the case, Dublin appealed. That September it lost, again overwhelmingly.

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The NI Court of Appeal eight days ago cited the dissenting Irish Strasbourg justice, Judge O’Leary, who wanted a torture designation.

So the NI appeal court will perhaps be understanding if their own dissenting judge, Sir Donnell Deeny, is cited as a reason why this case should go the Supreme Court.

The court summary of the appeal ruling and the dissent says Sir Donnell was “unable to fully agree” with his two appeal court colleagues. But it is a more stark division than such soft wording implies.

He said that it was inappropriate to relabel the treatment “as torture 48 years” later. He said the NI appeal ruling contradicted “the court with the ultimate responsibility for the vindication of the ECHR”.

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Sir Donnell also disagreed that Mr Hamilton gave Gerry Kelly a legally enforceable, “unambiguous undertaking” of a criminal probe. He said Mr Hamilton’s answer was “in the most general terms”.

As far as I am aware, Sir Donnell’s striking dissent got no coverage outside of the News Letter.

He 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.”

So why does the PSNI itself not forcefully make this point?

Its leaders have attended events with republicans at which they seem to appeal to the better nature of the latter by saying legacy caseload is overwhelming them. Do they think the IRA will say: “Oh dear, our support for endless legal actions and lawfare is putting undue burden on UK finances – we must drop it”?

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If the PSNI is to (in effect) be ordered by the courts to funnel yet more funds into claims against the state, based on replies to Policing Board politicians, then police leaders must, for balance (not least in memory of 302 police murders, most unsolved), be more mindful as to the cost implications of their words in such meetings.

The PSNI won a recent Glenanne Gang case but was criticised in the ruling and rolled over at once and agreed to spend yet more funds on allegations against security forces.

Meanwhile, a lack of progress into investigating past terror fuels a sense that legacy justice is for those who shout loudest.

Advocates of the Stormont House Agreement (SHA) now cite the failure to implement that deal as justification for all the litigation. But in coming weeks we will publish essays by critics of SHA who say it will actually increase the undue focus on security forces.

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I am reading David Blake Knox’s book on the murder of Thomas Niedermayer, a German businessman who made Northern Ireland his home and created many jobs. Brian Keenan ordered his abduction.

Keenan is one of the only IRA army council leaders to have spent years in jail, but even he was never charged over Niedermayer or with anything comparable to his long orchestration of terror.

IRA commanders like him, Kevin McKenna, Billy McKee and Martin McGuinness lived and died, unmolested by a state that knew what they had done.

Now, while ex IRA men outside the jurisdiction freely admit their pre meditated bloodshed, British soldiers face trial for single shootings, no matter how ill or frail they are.

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But the legacy scandal is deeper than soldier trials or the victim definition. At its heart is the way the PSNI is inundated with probes into state forces who stopped civil war.

The reasons for this are complex and many but this hooded men case will be yet another drain on resources.

At a time when Tory, and some Labour, politicians think judicial review is eroding ministerial power, this case must now go to London.

Ben Lowry (@BenLowry2) is News Letter deputy editor

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