British Torture, Then and Now: The Role of the Judges
| Published date | 01 January 2021 |
| Author | Conor Gearty |
| Date | 01 January 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12578 |
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Modern Law Review
DOI:10.1111/1468-2230.12578
British Torture, Then and Now: The Role of the Judges
Conor Gearty
This article is concerned with the return of torture and other related abusive conduct to
the British counter-insurgency arsenal following the initiation of military engagements in
Afghanistan and Iraq in the early 2000s. It focuses primarily on how judges have engaged with
the challenges that this torture and abusive conduct have posed, both in their capacity as judges
proper and also as appointees to a range of inquiries that have been initiated in the wake of
these actions. The article contrasts the post-2001 work of judges with that during an earlier
episode when such state abuse was also evident, Northern Ireland in the 1970s. Arguing that
the judiciary has been drawn into the fray much more heavily than in the 1970s and across a
great range of platforms, the article analyses this judicial involvement and posits explanations for
it against the backdrop of a changing UK politico-legal culture.
INTRODUCTION
This article opens with consideration of a particular episode in British legal
history,the incident that lay behind the famous Ireland vUK case and its 2018
sequel.1This was the operation, in the summer of 1971, by British forces in
Northern Ireland, of a system of extreme ill-treatment for interrogation pur-
poses on a number of terrorist suspects under their control. The episode in-
volves covering well-trodden ground. But journeying along it in a particular
way takes us to a fresh platform from which to view the altogether more recent
events at the heart of this article: the return of torture and ill-treatment more
generally to the British counter-insurgency arsenal following the initiation of
military engagements in Afghanistan and Iraq in the early 2000s, and the ways
in which judges have become involved with this.It is now evident that practices
rst denied and then allegedly put to one side have come back into the state’s
repertoire and have been deployed as though the Ireland vUK case – and (as
we shall see) the clear ministerial prohibition on torture around the time the
case got under way – never occurred. Collusion with states involved in such
ill-treatment has been a part of the story as well, in a way in which it never was
Professor of Human Rights Law,LSE. The author wishes to express his deep appreciation for the care
which the anonymous MLR reviewers took in their assessment of the initial draft of this article and
for the very many helpful suggestions that they made.The author is also grateful to Professors Aoife
Nolan and Neil Duxbury for their careful reading of the revised text and many helpful suggestions
on it. The author remains of course entirely responsible for the content.
1Ireland vUnited Kingdom (1978) 2 EHRR 25; App 5310/71 Ireland vUnited Kingdom 20 March
2018.
© 2020 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(1) MLR 118–154
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium,provided the original work is properly cited.
Conor Gearty
in the earlier era. Once again, judges in the English courts2have been drawn
into the fray, this time much more heavily than they had been in the 1970s
and across a great range of platfor ms: litigation, inquest and inquiry-based. The
article lays this story out and then (having detailed the reaction of government
to these judicial engagements) concludes with reections on the dierences
between the approach taken by this cohort of judges during each of these two
periods of torture-practice.
These two phases of British engagement with torture and ill-treatment, both
relatively recent,are poles apart as regards how the rule of law and the judges
have functioned in each.The English judiciary, in both their judicial and extra-
judicial capacities, were once the reliable defenders of state interests as dened
by the executive of the day, perhaps generally (on which more in our con-
cluding section) but certainly so far as the interests at the heart of this article
are concerned. But they are altogether more awkwardly positioned these days,
frequently revealing a commitment to the law that is sometimes (and in the
context of this article frequently) at odds with executive interests. The dier-
ences we explore here go beyond the issue of judicial responses to torture and
ill-treatment of suspects by (broadly speaking) members of the executive branch,
important though this is. They also tell us a great deal both about how the ju-
diciary locates itself in the British state today and about how ideas such as the
rule of law and respect for human rights have played a part in underpinning this
new judicial position. The article is therefore an eort to understand a change
in judicial attitude through the prism of a single issue. The story it tells also
explains why certain parts of the wider executive now push openly for formal
protection from judicial oversight, a stance driven in part at least by impatience
with a cohort of judicial gures whose version of what their job entails does
not t with what, on the executive’s view, they ought to be doing. In other
words, our single issue may be leading to a recalibration of how the executive
arm engages with law,a part of a wider picture for sure but one that might be
about to change that picture for ever.That is for later. First, we must travel back
to Northern Ireland in the 1970s.
SERVANTS OF THE STATE: NORTHERN IRELAND
Internment
British troops were dispatched onto the streets of Northern Ireland in the sum-
mer of 1969.3For the rst three years, they acted under the political direction
2 The article does not deal with the role of the Northern Ireland judges during the 1970s and
1980s. Concentrated (naturally enough) in case-law, their role was very dierent from that of
their senior colleagues in Britain: for a useful snapshot of the law and the cases from this period
in Northern Ireland, see Committee on the Administration of Justice,Civil Liberties in Northern
Ireland: The CAJ Handbook (Belfast:Committee on the Administration of Justice, 3rd ed, 1997).
3 A company of the Prince of Wales’s Own Regiment was sent to Derry on 14 August 1969.
Others quickly followed and by October the number of troops sent to Northern Ireland as a
whole had risen to 9,800: HC Deb vol 788 col 386 (D. Healy) 15 October 1969.
© 2020 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(1) MLR 118–154 119
British Torture, Then and Now:The Role of the Judges
of the devolved administration based in Stormont,a government that had been
Unionist in complexion since the establishment of the six counties as a sepa-
rate political entity in 1921.4The public order situation in Northern Ireland
worsened considerably after the army’s arrival. This was partly because the cir-
cumstances of disorder in Northern Ireland were fast becoming too serious
to be easily managed, but also on account of the perception that the military
forces were present as upholders of the status quo, rather than as defenders of
the Catholics whose exposure to rioting loyalists had been the initial rationale
for their deployment.5In a situation of rising violence, the authorities deployed
a measure which had gured previously in earlier periods of disorder.On the
morning of 9 August 1971, 342 men were taken into detention in an initial
army swoop (from a nal list of 452 suspects).Of these, 105 had been released
by the end of August while the rest were made the subject of indenite de-
tention orders, with many of these then being made the subject of internment
orders proper.6
Almost immediately following the introduction of internment, allegations
surfaced of serious ill-treatment of and brutality towards internees by the secu-
rity forces.7The Government responded quickly, establishing an inquiry on 31
August 1971, chaired by the Parliamentary Commissioner (or ‘Ombudsman’),
Sir Edmund Compton, a man whose independence was brought home to the
House of Commons by the Prime Minister’s assurance that ‘his capacity [was]
that of a judge.’8His rst committee colleague was Dr (later Sir) Ronald Gib-
son, who had been chair of the British Medical Association since 1966, and
the second was a real judge, the rst to appear in our story: Edgar S Fay QC,
a Br itish barr ister and circuit judge, veteran of many enquiries.9The Com-
mittee dealt with forty allegations of ill treatment and found in favour of the
ocial version of events in most instances,10 something that was made almost
inevitable by the refusal of all but two of the detainees to have anything to do
with the proceedings. (This was in stark contrast to the 95 army witnesses, 26
4 Among many good historical treatments see P.Bew,P.Gibbon and H. Patterson, Northern Ireland
1921-1994: Political Forces and Social Classes (London:Serif , 1996).
5 In the twelve months to Februar y 1971, for example, there were 572 searches of occupied
houses and in the seven months to February 1971, no fewer than an average of 650 vehicles
were searched every day: HC Deb vol 811 col 780 (I.Gilmour) 11 February 1971.
6 Sir Edmund Compton,Report of the Enquir y into Allegations Against the Security Forces of Physical
Brutality in Northern Ireland Arising out of the Events on 9 August 1971 Cmnd 4823 (1971) para 9.
Of those not released 237 were held in detention in Crumlin jail or on the Maidstone,ashipon
Belfast quay: ibid.
7 An account of the experiences of those subject to such ill-treatment is to be found in I. Cobain,
Cruel Britannia: A Secret History of Torture (London: Portobello Books, 2012) ch 5. On inter-
rogation in general at this time see L. K. Donohue,The Cost of Counterterrorism: Power,Politics,
and Liberty (Cambridge: Cambridge University Press, 2008) 48-57; H. Bennett, ‘Detention and
Interrogation in Norther n Ireland, 1969-75’ in S. Scheipers (ed), Prisoners in War (Oxford:OUP,
2010) 187-203. For a useful overview covering both periods under discussion in this article see
A. Mumford,‘Minimum Force Meets Brutality: Detention, Interrogation and Torture in Br itish
Counter-Insurgency Campaigns’ (2012) 11 Journal of Military Ethics 10, particularly good on ‘the
high degree of myth-making surrounding British conduct in irregular wars’ ibid,11.
8 HC Deb vol 823 col 324 (E. Heath) 23 September 1971.
9 Fay lived until he was 101 and received obituaries in both The Times (11 December 2009) and
The Daily Telegraph (23 November 2009).
10 Compton, n 6 above, ch VIII (summar y).
120 © 2020 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(1) MLR 118–154
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