McGuigan’s (Francis) and McKenna’s (Mary) Application
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 20 September 2019 |
| Neutral Citation | [2019] NICA 46 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 20 September 2019 |
1
Neutral Citation No: [2019] NICA 46 Ref:
MOR11060
DEE11055
Judgment: approved by the Court for handing down
Delivered:
20/09/2019
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY FRANCIS McGUIGAN FOR
JUDICIAL REVIEW
AND
IN THE MATTER OF AN APPLICATION BY MARY McKENNA FOR JUDICIAL
REVIEW
AND
IN THE MATTER OF DECISIONS AND ONGOING FAILURES OF THE CHIEF
CONSTABLE OF THE POLICE SERVICE OF NORTHERN IRELAND, THE
DEPARTMENT OF JUSTICE FOR NORTHERN IRELAND AND THE
NORTHERN IRELAND OFFICE
________
Before: Morgan LCJ, Stephens LJ and Sir Donnell Deeny
________
MORGAN LCJ and STEPHENS LJ
[1] This appeal concerns applications for judicial review of the decision made by
the PSNI that there was no evidence to warrant an investigation, compliant with
Articles 2 and 3 of the Convention, into the allegation that the UK Government
authorised and used torture in Northern Ireland. The applications also challenge
decisions of all three respondents as constituting a continuing failure to order and
ensure a full, independent and effective investigation into torture at the hands of the
United Kingdom Government and/or its agents in compliance with Articles 2 and 3
of the Convention, common law and customary international law.
[2] Maguire J dismissed those applications but declared that the decision made
on behalf of the PSNI in October 2014, in effect not to take further steps to investigate
2
the question of identifying and, if appropriate, prosecuting those responsible for
criminal acts, should be quashed. As a result of the notices of appeal, cross appeals
and respondents’ notices all the issues before the trial judge are open on this appeal.
Mr Southey QC, Ms Ní Ghrálaigh and Mr Straw appeared for Mr McGuigan,
Ms Quinlivan QC and Mr Anthony for Ms McKenna, Dr McGleenan QC and
Mr McLaughlin for the PSNI and Secretary of State for Northern Ireland and Mr Coll
QC and Mr McAteer for the Department of Justice.
Background
[3] In light of the deteriorating security situation in Northern Ireland in early
1971 the Northern Ireland Government entered into discussions with Her Majesty’s
Government about the introduction of detention without trial. If such a policy was
implemented it was considered essential to interrogate those interned with a view to
securing relevant intelligence. Guidelines on the approach to interrogation in
previous internal security situations outside the United Kingdom were contained in
Joint Intelligence Directive JIC (65)15 which governed military interrogation. It had
been formulated in 1965 and amended in 1967 as a result of complaints arising from
interrogations conducted in Aden. The Directive did not specifically set out the
techniques of interrogation but required adherence to the Geneva Convention and
expressly prohibited the use of violence including mutilation, cruel treatment and
torture, outrages upon personal dignity and humiliating and degrading treatment.
[4] In March 1971 the British military was requested to provide advice and
training to the Northern Ireland authorities about the establishment of an
interrogation centre. The training provided by the military included the use of the
so-called five techniques. These were described as follows in a subsequent
judgement of the ECtHR:
“96. … These methods, sometimes termed
“disorientation” or “sensory deprivation” techniques,
were not used in any cases other than the 14 so
indicated above. The techniques consisted of the
following:
(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
‘spread-eagled 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 detainees’ heads and, at least initially,
keeping it there all the time except during
interrogation;
3
(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.
167. The five techniques were applied in
combination, with premeditation and for hours at a
stretch; they caused, if not actual bodily injury, at
least intense physical and mental suffering to the
persons subjected thereto and also led to acute
psychiatric disturbances during interrogation.”
These techniques were taught orally by officers of the British military’s English
Intelligence Centre to members of the RUC at a seminar held in April 1971. Military
Standing Orders were drawn up to govern the operation of an interrogation centre
and the conduct of the interrogations.
[5] The internment operation commenced at 4 am on 9 August 1971 with the
arrest of some 350 people. On the same day Brigadier Lewis copied to the Vice Chief
of General Staff and the Secretary of State for Defence a memo describing the
interrogation process. The memo indicated that successful interrogation relied
heavily on the contrast between the very harsh and the kind and gentle interrogator
in circumstances designed to heighten the subjects desire to communicate. Those
circumstances included ignorance of the subject’s whereabouts and complete loss of
the sense of time, isolation and fatigue accompanied by interrogation for long and
frequent periods with little sleep and white sound played to unsettle the subject and
prevent them sleeping when not being interrogated. The Secretary of State for
Defence and the Home Secretary discussed the proposed interrogation on 9 and 10
August 1971 and interrogation began on 11 August 1971 at 7 PM after the Director of
Intelligence had had one hour of personally explaining the techniques to Mr
Faulkner, the Prime Minister of Northern Ireland.
[6] Thereafter 12 men were taken to an interrogation centre, now known to have
been located at a British Army base at Ballykelly, Northern Ireland. There they
underwent interrogation in depth over the period from 11 to 17 August 1971 using
the five techniques set out at [4] above. Owing to the second of these techniques,
these men came to be known as “the hooded men”.
[7] Francis McGuigan was arrested at his home at 4:30 AM on 9 August 1971. He
was brought to a gymnasium with approximately 300 men. On 11 August 1971 he
was brought to another building where plainclothes men were placing a hood over
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Lavery's (Robert) Application v Public Records Office NI
...of the investigators in a manner compliant with Article 2 ECHR. On the same date leave to appeal to UKSC in McGuigan and McKenna [2019] NICA 46 was refused. Petitions for leave to appeal have subsequently been submitted to UKSC. The grant of leave on the Article 2 ECHR ground in McQuillan i......
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...of leave on the Article 2 ECHR ground in McQuillan is unconstrained. [6] On the same date leave to appeal to UKSC in McGuigan and McKenna [2019] NICA 46 was refused. Petitions for leave to appeal have subsequently been submitted to UKSC. [7] In McQuillan it was common case that there was fr......
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McEvoy's (John) Application v Chief Constable of PSNI
...leave on the Article 2 ECHR ground in McQuillan is unconstrained. [8] On the same date, leave to appeal to UKSC in McGuigan and McKenna [2019] NICA 46 was refused. Petitions for leave to appeal have subsequently been submitted to UKSC. [9] It was common case in McQuillan that there was fres......
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Lavery's (Patrick) Application
...leave on the Article 2 ECHR ground in McQuillan is unconstrained. [11] On the same date leave to appeal to UKSC in McGuigan and McKenna [2019] NICA 46 was refused. Petitions for leave to appeal have subsequently been submitted to UKSC. [12] In summary there are two central issues in McQuill......