From 14 to 16 June 2021, the UK Supreme Court will hear an appeal from Northern Ireland in relation to the treatment of the ‘Hooded Men’. The case is being taken by Mary McKenna, daughter of one of the Hooded Men, Sean McKenna.
Mr McKenna, after release from internment, spent the rest of his life in a psychiatric hospital and later died, as a direct consequence of the ill-treatment sustained by him at the hands of the RUC. Mr McGuigan, another of the Hooded Men, is also a participant in the proceedings.
The ‘Hooded Men’ were a group of twelve men, who were detained on 9 August 1971, on the first day of internment. These men were subjected to the ‘the five techniques’ by RUC Special Branch men, supported by the British Army. These five techniques were hooding; stress positions; sleep deprivation; being subject to white noise; and the deprivation of food and water. This ill-treatment constituted torture and was expressly authorised by the then Northern Ireland Prime Minister, Brian Faulkner and British Ministers at Westminster.
The appeal will focus on the duty to investigate the torture of these men at the hands of the RUC Special Branch. In particular, it will focus on the failure of the RUC and, more recently, the PSNI to investigate criminal misconduct on the part of the RUC officers who carried out the torture and on the part of the Ministers, who knew that the five techniques were going to be used and who expressly authorised their use.
The Supreme Court will determine if there has been a failure to adequately investigate allegations that the UK government authorised and used torture in Northern Ireland in relation to the Hooded Men. It will consider the investigative obligations arising under Article 2 (right to life) and Article 3 (right to be free from torture) of the European Convention on Human Rights (ECHR), as well as the common law principles of independence and legitimate expectation.
The Supreme Court will also consider whether the PSNI Legacy Investigations Branch is sufficiently independent to carry out any necessary investigation into the treatment of the Hooded Men.
Background to the Supreme Court appeal
In 2015, judicial review proceedings against the PSNI, Secretary of State for Northern Ireland and Department of Justice were first issued by Francis McGuigan, one of the ‘Hooded Men’, and Mary McKenna, the daughter of Sean McKenna, another of the Hooded Men, who died in 1975, never having fully recovered from his mistreatment. The proceedings followed the discovery of additional documentary materials relevant to the mistreatment of the men, which were featured in a 2014 RTÉ Documentary, The Torture files.
Following this Documentary, the Chief Constable stated that the PSNI would assess “any allegation or emerging evidence of criminal behaviour, from whatever quarter” concerning the ill-treatment of the Hooded Men “with a view to substantiating such an allegation and identifying sufficient evidence to justify a prosecution and bring people to court’”.
The legal challenge focused on the inadequacy of the PSNI response and the failure to hold a human rights and common law compliant investigation into the torture of the men and in particular the evidence that demonstrated that the ill-treatment was authorised by Government Ministers.
In 2019, the Northern Ireland Court of Appeal held that the treatment inflicted upon the Hooded Men, if it occurred today, would “properly be characterised as torture”. It further held that the Chief Constable had promised a criminal investigation, which has not yet happened, but that any investigation by the PSNI Legacy Investigation Branch or its successor was unlikely “to engender public confidence” because of the lack of independence of the PSNI Legacy Investigation Branch from the RUC, whose members would be under investigation
A majority of the judges also commented that while it was natural for civil servants to protect the political reputation of their Ministers, if that extended to protecting them from criminal investigation, “the rule of law is undermined”.
This judgment was subsequently appealed to the UK Supreme Court by the Chief Constable of the PSNI and Department of Justice and will be heard remotely due to ongoing Covid-19 restrictions.
Mary McKenna, who is represented by CAJ, said, “I was pleased that the Court of Appeal recognised in 2019 that what happened to my Daddy was torture and that it found that there should be an independent investigation. I am disappointed that the PSNI chose to appeal this; it is now 50 years since my Daddy was tortured and they are still hiding the truth.”
Gemma McKeown, CAJ’s Solicitor, said, “It has been six years since our client issued judicial review proceedings and 50 years since her father was subjected to the ‘five techniques’ and there still has not yet been an independent and effective investigation into this treatment. Victims have a right to truth and the rule of law must be upheld without fear or favour. We are hopeful that the Supreme Court will vindicate our client in her fight for truth and justice on behalf of her late father.”
Please direct media enquiries to Robyn Scott, Communications & Equality Coalition Coordinator on firstname.lastname@example.org or 075 1994 1203.
Notes to editors
- The cases of Francis McGuigan and Mary McKenna will be heard alongside another appeal from Northern Ireland taken by Margaret McQuillan, who is the next of kin of Jean Smyth who was murdered in 1972. This challenge focuses on the Article 2 ECHR investigative obligation arising under the Human Rights Act 1998 to investigate a death and whether the PSNI Legacy Investigations Branch is sufficiently independent to investigate this.
- The Hooded Men case was the subject of Ireland v UK in 1978, in which the European Court of Human Right found the UK to be in breach of Article 3 of the European Convention on Human Rights.
- Article 2 of the European Convention on Human Rights (ECHR) states: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
- Article 3 of the European Convention on Human Rights states that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment. The European Court of Human Rights has decided in a number of cases that allegations of torture should be independently and effectively investigated by the state with jurisdiction.”
- The Supreme Court will provide live public access to the hearing on its website from Monday 14 June – Wednesday 16 June 2021): https://www.supremecourt.uk
- The Committee on the Administration of Justice (CAJ) is an independent, non-governmental human rights organisation, which works to ensure that the administration of justice in Northern Ireland is compatible with the highest international human rights standards. See www.caj.org.uk for further information on CAJ and its work.