CASE NOTE WRITING ON IRELAND v UK [1976] ECtHR

SUBMITTED BY:

NIDHI.P. GOPAN 180401420032

V.SAI SRI HARSHA 180401420052

BATCH 2018-23

Course Teacher/ Supervisor:

DR. MUKUL SAXENA

Alliance School of Law

Alliance University, Bangalore
 INTRODUCTION

Ireland v United Kingdom is a European Court of Human Rights (ECtHR) principally

concerning the threshold at which ‘cruel and unusual treatment’ becomes ‘torture’ for the

purposes of Article 3 of the European Convention on Human Rights (ECHR), and the

circumstances in which an Article 15 ‘derogation in times of war or other public emergency’

permit a valid deviation from the standards imposed by Article 5 (right to liberty and

security) and Article 6 (right to a fair trial).

Before 1922, the island of Ireland was a constituent part of the United Kingdom. By the

1970’s, a series of complicated political events had resulted in the island becoming two

separate nations:

 The Irish Republic - an independent sovereign nation-state; and

 Northern Ireland that, at the time the events of this case took place, maintained a

separate “Government and Parliament” under the sovereignty of the United Kingdom.

Despite this partition, tensions remained high between Northern Ireland’s Protestant and

Catholic populations. This superficially religious divide was further characterised and

complicated by deep-rooted, social, and economic differences between the two

communities. Politically, the Catholics - who comprise around one third of Northern Irelands

population of 1.5 million - generally supported the idea of a united Ireland. The Protestant

community opposed it, preferring on the whole to remain part of the UK.

The situation deteriorated from 1970 onwards, as terrorist campaigns orchestrated by

Loyalists, Protestants who supported the union with the UK and the Irish Republican Army

(IRA) who aimed for a united Ireland became more violent and deadly in nature. The

Northern Ireland Government maintain that the IRA perpetrated the overwhelming majority
of this violence. By March 1975, an estimated “1,100 people had been killed, over 11,500

injured and more than £140,000,000 worth of property destroyed” as a result of violence that

“found its expression in part in civil disorders, in part in terrorism perpetrated for political

ends.

With the arrival of the British Army in August 1969, in aid of the civil power, intercommunal

strife in Northern Ireland entered a new phase, which saw the regeneration of the Irish

Republican Army (IRA) and the emergence of a guerrilla conflict between the IRA and

British Army. In the first half of 1971, 8 civilians, 10 soldiers, and 2 members of the Royal

Ulster Constabulary (RUC) had been killed; 454 civilians, 110 soldiers, and 71 policemen

had been injured. In July 1971 alone, traditionally a period of acute tension, there had been

86 explosions, 2 soldiers had been shot dead, and 21 persons injured. It was this rising tide of

violence that set the scene for the introduction of internment without trial on August 9, 1971.

This case was referred to the Court by the Government of Ireland (“the applicant

Government”). It originated in an application against the Government of the United Kingdom

of Great Britain and Northern Ireland (“the respondent Government”) lodged by the applicant

Government with the European Commission of Human Rights (“the Commission”) on 16

December 1971 under Article 24 of the Convention for the Protection of Human Rights and

Fundamental Freedoms (“the Convention”). The report drawn up by the Commission

concerning the said application (Article 31 of the Convention) was transmitted to the

Committee of Ministers of the Council of Europe on 9 February 1976.

It is rare for states to lodge inter-state cases with the European Court of Human Rights

because they fear damaging their relations with the respondent states. Yet in 1971 the

government of the Republic of Ireland began a case against the United Kingdom. This

research uses archival material to reveal the private discussions that took place within the

British and Irish Governments regarding the case until its conclusion in 1978, as well as the
official communications issued between the governments. It finds that there were distinct

differences of opinion and tension between the two governments regarding Ireland v. UK.

Anglo-Irish relations were strong enough, however, that the case was largely kept separate

from other aspects of their relationship. This article contributes to understanding of Anglo-

Irish relations in the 1970s and to the literature on this and “the troubles”, which almost

completely neglects Ireland v. UK.

FACTS

Before 1922, the island of Ireland was a constituent part of the United Kingdom. By the

1970’s, a series of complicated political events had resulted in the island becoming two

separate nations:

 The Irish Republic – an independent sovereign nation-state; and

 Northern Ireland that, at the time the events of this case took place, maintained a

separate “Government and Parliament” under the sovereignty of the United Kingdom.

Despite this partition, tensions remained high between Northern Ireland’s Protestant and

Catholic populations. This superficially religious divide was further characterised and

complicated by deep-rooted, social, and economic differences between the two

communities. Politically, the Catholics – who comprise around one third of Northern Irelands

population of 1.5 million – generally supported the idea of a united Ireland. The Protestant

community opposed it, preferring on the whole to remain part of the UK.

The situation deteriorated from 1970 onwards, as terrorist campaigns orchestrated by

Loyalists – Protestants who supported the union with the UK – and the Irish Republican

Army (IRA) – who aimed for a united Ireland – became more violent and deadly in
nature. The Northern Ireland Government maintain that the IRA perpetrated the

overwhelming majority of this violence. By March 1975, an estimated “1,100 people had

been killed, over 11,500 injured and more than £140,000,000 worth or property destroyed” as

a result of violence that “found its expression in part in civil disorders, in part in terrorism

perpetrated for political ends.”

It was against this background that the Northern Ireland Government introduced Operation

Demetrius, which was a series of “extrajudicial measures of detention and internment of

suspected terrorists.” The principal target of these measures was suspected members of the

IRA, although it is accepted that some people would have been wrongfully detained on the

basis of “inadequate or inaccurate information.”

One of the more serious interrogation techniques used on fourteen prisoners became known

as the “five techniques.” This consisted of the following:

1. “Wall standing (forcing detainees to remain in a stress position for hours at a time);

2. Hooding (keeping a bag over detainee’s heads at all times, except during

interrogation);

3. Subjection to continuous loud noise;

4. Deprivation of sleep;

5. Deprivation of food and drink.”

It is probable that “physical violence was sometimes used in the forcible application of the

five techniques.” One prisoner spent three weeks in hospital after being subjected to “kicking

and beating, during or between a series of ‘interviews’ conducted by the Special Branch. At

least two detainees would go on to develop “acute psychiatric symptoms” as a result of their

interrogation.
The respondents (the UK) in this case argued that these measures were necessary because

“normal procedures of law and order had become inadequate to deal with IRA terrorists.”

Widespread intimidation “made it impossible to obtain sufficient evidence to secure a

criminal conviction against known IRA terrorists in the absence of an admissible confession

or of police or army testimony.” Large swathes of the Catholic community had become “no-

go” areas for the police and security forces. The international border also posed challenges

for law enforcement. These factors led the respondents to conclude that there was “no hope of

winning over the terrorists by political means.” As such, these measures were necessary to

countenance the threat posed by an IRA, who were engaged in a “highly organised,

politically motivated campaign designed to overthrow the State.

HOLDING

The Commission’s findings were appealed. In 1978, in the European Court of Human Rights

(ECHR) trial Ireland vs. United Kingdom (5310/71) [1978] ECHR 1, the facts were not in

dispute and the judges court published the following in their judgement:

These methods, sometimes termed “disorientation” or “sensory deprivation” techniques, were

not used in any cases other than the fourteen so indicated above. It emerges from the

Commission’s establishment of the facts that the techniques consisted of:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress

position”, described by those who underwent it as being “spreadeagled against the wall, with

their fingers put high above the head against the wall, the legs spread apart and the feet back,

causing them to stand on their toes with the weight of the body mainly on the fingers”.
(b) hooding: putting a black or navy coloured bag over the detainee’s heads and, at least

initially, keeping it there all the time except during interrogation.

(c) subjection to noise: pending their interrogations, holding the detainees in a room where

there was a continuous loud and hissing noise.

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep.

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay

at the centre and pending interrogations.

These were referred to by the court as the five techniques. The court ruled:

 Although the five techniques, as applied in combination, undoubtedly amounted to

inhuman and degrading treatment, although their object was the extraction of

confessions, the naming of others and/or information and although they were used

systematically, they did not occasion suffering of the particular intensity and cruelty

implied by the word torture as so understood.

 The Court concludes that recourse to the five techniques amounted to a practice of

inhuman and degrading treatment, which practice was in breach of the European

Convention on Human Rights Article 3.

On 8 February 1977, in proceedings before the ECHR, and in line with the findings of the

Parker report and United Kingdom Government policy, the Attorney-General of the United

Kingdom stated that:

“The Government of the United Kingdom have considered the question of the use of the ‘five

techniques’ with very great care and with particular regard to Article 3 of the Convention.

They now give this unqualified undertaking, that the ‘five techniques’ will not in any

circumstances be reintroduced as an aid to interrogation.”

 DISCUSSION OF PRIOR LAW

The Court has laid down principles in the caselaw on Article 3 on what constitutes torture. It

has found in general that it appeared to have been the intention of the European Convention

on Human Rights to attach a special stigma to “torture” and to distinguish between it and

“inhuman or degrading treatment”. “Torture” is understood to mean “deliberate inhuman

treatment causing very serious and cruel suffering”.

The Court has also spoken of a “purposive element” in torture, as recognised in the United

Nations Convention against Torture, which in Article 1 defines torture in terms of the

intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining

information, inflicting punishment or intimidating.

The Court has made various findings of torture: in Aksoy Vs. Turkey (1996), the Court’s first

judicial determination that an individual had been tortured, the applicant was suspended

naked by his arms after they had been tied together behind his back, while in the “El-Masri

vs. the Former Yugoslav republic of Macedonia” of 2012 the applicant was forcibly

undressed, hooded and given a suppository against his will. Torture was also found in

“Shishkin vs. Russia” and “Korobov vs. Ukraine” (both 2011) after the applicants were

severely beaten while in police custody.

In the judgment in “Aydin vs. Turkey”, delivered in 1997, a woman who was raped by the

police while in custody was also found to have been tortured.

In the 1999 case of “Selmouni vs. France”, where there was also a finding of torture, the

Court also stated that as the Convention was a living instrument, treatment which had in the

past been considered as “inhuman and degrading treatment” as opposed to “torture” could be

classified differently in future. It noted that an “increasingly high standard” in the area of the

protection of human rights inevitably required “greater firmness in assessing breaches of the

fundamental values of democratic societies”.

 REASONING OR ANALYSING

Chamber judgments are final unless referred to the Grand Chamber, whose judgments are

always final. On the grounds of legal certainty, a revision request is therefore an exceptional

procedure. Such requests are subjected to strict scrutiny.

But in this case, the case was arisen almost after 40 years of the original judgement because

the Government of Ireland alleged that new evidence had come to light, which if known at

the time would have affected the decision in the original judgment. The Irish Government

relied on material which had been classified at the time of the original proceedings and had

been released into the United Kingdom’s public archives 30 years later. The Irish

Government state that they learned about the relevant new facts from a television programme

broadcast in Ireland in June 2014 and had subsequently obtained documents. It therefore

made a request to revise the original judgment under Rule 80 of the Rules of Court.

There was an earlier finding in Strasbourg that the men in the case had been tortured, which

the British Government did not dispute and there were no proceedings before the Court itself

but after 40 years of the original judgement an initial report was issued by the European

Commission of Human Rights in 1976. The Commission was a body which dealt with cases

before they went to the Court. It issued reports, establishing the facts and expressing

opinions, and could refer cases to the Court. In the present case, the Government of Ireland

asked for a referral to the Court itself for a ruling. The Court came to a different conclusion

than the Commission on the question of torture, finding that there had been inhuman and

degrading treatment rather than torture. The Commission no longer exists as it was merged

into the Court to become a single body after 1998 reforms which were designed to speed up

the adjudication of cases and improve access to the Court.

 CONCLUSION

The five techniques (also known as Deep-Interrogation) are illegal interrogation methods

which were originally developed by the British military in other operational theatres and then

applied to detainees during the Troubles in Northern Ireland. They have been defined as

prolonged wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation

of food and drink.

They were first used in Northern Ireland in 1971 as part of Operation Demetrius – the mass

arrest and internment (imprisonment without trial) of people suspected of involvement with

the Irish Republican Army (IRA). Out of those arrested, fourteen were subjected to a

programme of "deep interrogation" using the five techniques. This took place at Shackleton

Barracks, a secret interrogation centre in Northern Ireland. For seven days, when not being

interrogated, the detainees were kept hooded and handcuffed in a cold cell and subjected to a

continuous loud hissing noise. Here they were forced to stand in a stress position for many

hours and were deprived of sleep, food and drink. They were also repeatedly beaten, and

some reported being kicked in the genitals, having their heads banged against walls and being

threatened with injections. The effect was prolonged pain, physical and mental exhaustion,

severe anxiety, depression, hallucinations, disorientation and repeated loss of consciousness.

It also resulted in long-term psychological trauma. The fourteen became known as "the

Hooded Men" and were the only detainees in Northern Ireland subjected to all five

techniques together. Other detainees were subjected to at least one of the five techniques

along with other interrogation methods.

In 1976, the European Commission of Human Rights ruled that the five techniques amounted

to torture. The case was then referred to the European Court of Human Rights. In 1978 the

court ruled that the techniques were “inhuman and degrading” and breached Article 3 of the

European Convention on Human Rights, but did not amount to torture. In 2014, after new
information was uncovered that showed the decision to use the five techniques in Northern

Ireland in 1971–1972 had been taken by ministers, the Irish Government asked the European

Court of Human Rights to review its judgement. In 2018, the Court declined.

The Court's ruling that the five techniques did not amount to torture was later cited by the

United States and Israel to justify their own interrogation methods, which included the five

techniques. British agents also taught the five techniques to the forces of Brazil’s military

dictatorship.

In response to the public and Parliamentary disquiet on 16 November 1971, the Government

commissioned a committee of inquiry chaired by Lord Parker, the Lord Chief Justice of

England to look into the legal and moral aspects of the use of the five techniques.

The “Parker Report” was published on 2 March 1972, and had found the five techniques to be

illegal under domestic law:

Domestic Law: We have received both written and oral representations from many legal

bodies and individual lawyers from both England and Northern Ireland. There has been no

dissent from the view that the procedures are illegal alike by the law of England and the law

of Northern Ireland: This being so, no Army Directive and no Minister could lawfully or

validly have authorised the use of the procedures. Only Parliament can alter the law. The

procedures were and are illegal.

On the same day (2 March 1972), the United Kingdom Prime Minister Edward Heath stated

in the House of Commons:

Government, having reviewed the whole matter with great care and with reference to any

future operations, have decided that the techniques will not be used in future as an aid to

interrogation. The statement that I have made covers all future circumstances.
Directives expressly prohibiting the use of the techniques, whether singly or in combination,

were then issued to the security forces by the Government. These are still in force and the use

of such methods by UK security forces would not be condoned by the Government.