In the case of Ireland v. the United Kingdom,
The European Court of Human Rights, taking its decision in plenary
session in application of Rule 48 of the Rules of Court and composed
of the following judges:
Mr. G. BALLADORE PALLIERI, President,
Mr. G. WIARDA,
Mr. M. ZEKIA,
Mr. J. CREMONA,
Mr. P. O'DONOGHUE,
Mrs. H. PEDERSEN,
Mr. THÓR VILHJÁLMSSON,
Mr. R. RYSSDAL,
Mr. W. GANSHOF VAN DER MEERSCH,
Sir Gerald FITZMAURICE,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. D. EVRIGENIS,
Mr. P.-H. TEITGEN,
Mr. G. LAGERGREN,
Mr. L. LIESCH,
Mr. F. GÖLCÜKLÜ,
Mr. F. MATSCHER,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 10 and 11 February, 22 and 25 to
27 April, 25 to 28 July and 6 to 13 December 1977,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. 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 (art. 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) (art. 31) was
transmitted to the Committee of Ministers of the Council of Europe on
9 February 1976.
2. The Irish Government's application to the Court was lodged with
the registry on 10 March 1976, within the period of three months laid
down by Articles 32 para. 1 and 47 (art. 32-1, art. 47) of the
Convention, and referred to Article 48 (art. 48). Its object is "to
ensure the observance in Northern Ireland of the engagements
undertaken by the respondent Government as a High Contracting Party to
the Convention and in particular of the engagements specifically set
out by the applicant Government in the pleadings filed and the
submissions made on their behalf and described in the evidence adduced
before the Commission in the hearings before them". "To this end", the
Court is invited "to consider the report of the Commission and to
confirm the opinion of the Commission that breaches of the Convention
have occurred and also to consider the claims of the applicant
Government with regard to other alleged breaches and to make a finding
of breach of the Convention where the Court is satisfied that a breach
has occurred".
The United Kingdom is one of the States which have declared that they
recognise the compulsory jurisdiction of the Court (Article 46)
(art. 46).
3. The Registrar received twenty-five copies of the Commission's
report from its Secretary on 17 March 1976.
4. The Chamber of seven judges to be constituted included, as ex
officio members, Mr. P. O'Donoghue, the elected judge of Irish
nationality, and Sir Gerald Fitzmaurice, the elected judge of British
nationality (Article 43 of the Convention) (art. 43), and
Mr. G. Balladore Pallieri, the President of the Court (Rule 21 para. 3 (b)
of the Rules of Court). On 20 March 1976, the President of the Court
drew by lot, in the presence of an official of the registry, the names
of the four other members, namely Mr. H. Mosler, Mr. M. Zekia,
Mr. S. Petrén and Mrs. D. Bindschedler-Robert (Article 43 in fine
of the Convention and Rule 21 para. 4) (art. 43).
Mr. Balladore Pallieri assumed the office of President of the Chamber
(Rule 21 para. 5).
5. On 29 April 1976, the Chamber decided under Rule 48 to relinquish
jurisdiction forthwith in favour of the plenary Court, "considering
that the case raise[d] serious questions affecting the interpretation of
the Convention".
6. At a meeting held on 18 May 1976, the President ascertained the
views of the Agents of the Parties and of the delegates of the
Commission regarding the procedure to be followed. He decided by an
Order of the same date that the applicant Government should have until
2 August 1976 to file a memorial, that the respondent Government
should then have until 30 October 1976 to file a memorial in reply and
that the delegates of the Commission should be entitled to present
their written observations, if any, within one month of the receipt of
the said memorial in reply. By an Order of 19 November 1976, the
President extended the last-mentioned time-limit until 15 December.
The memorials of the applicant Government, the respondent Government
and the delegates of the Commission were received at the registry on
30 July, 28 October and 15 December 1976, respectively.
7. By an Order of 26 July 1976, the President of the Court, having
regard to Rule 29 para. 3 and with the agreement of the two Governments
concerned and of the Commission, instructed the Registrar to make the
Commission's report public only after incorporation of changes
approved by the President and having the sole purpose of protecting
the identity of certain persons. The report was so made public as
from 2 September 1976.
8. The President met the Agents of the Parties and the delegates of
the Commission on 7 December 1976 in order to consult them on the
organisation of the hearings. On 7 January 1977, he decided, with the
agreement of the Court, that the first part of the oral proceedings
would open on 7 February and would concern the following questions:
"(a) Is the jurisdiction of the Court to examine any particular issue
of fact or law limited by the original allegations of the Government
of Ireland and/or by the decision of the Commission on the
admissibility of application no. 5310/71? In the affirmative, do
certain issues of fact or law fall outside this jurisdiction in the
present case?
(b) Has the Court jurisdiction to pronounce on the existence of the
violations of the Convention found by the Commission in its report and
which are not contested by the United Kingdom Government? In the
affirmative, should the Court exercise that jurisdiction?
(c) Should the Court examine the cases mentioned in paragraphs 2.30
and 2.31 of the memorial of the delegates of the Commission?
(d) Is it proper in the circumstances of this case for the Court,
without further enquiry into the facts, to:
(i) confirm the conclusions of the Commission to the extent that they
are not contested?
(ii) deal only with the substance of those questions which give rise
to dispute between the Parties?
(e) Has the Court jurisdiction to review the procedural decisions of
the Commission as such and/or should the Court, when assessing the
conclusions of the Commission, have regard to the procedure followed
by the latter body?
(f) Does Article 1 (art. 1) of the Convention create any rights in
addition to those defined in Section I and can it be the subject of a
separate breach?"
Oral hearings were accordingly held in public at the Human Rights
Building, Strasbourg, from 7 to 9 February. Immediately afterwards,
the Court deliberated in private. At its request, the President, by
Order of 11 February, advised the Parties and the Commission of the
following matters to be taken into account by them during the further
procedure:
"1. In the circumstances of this case, the Court does not consider
that the reasons which have been given why it should refrain from
pronouncing on the non-contested allegations of violation of Article 3
(art. 3) of the Convention are such as to preclude it from so
pronouncing. However, the Court considers that it is already in
possession of sufficient information and materials to enable it to
make such a pronouncement.
2. The Court takes note of the fact that it is no longer invited by
the applicant Government to examine the cases mentioned in
paragraph 2.30 of the memorial of the delegates of the Commission; it
does not deem it necessary to examine them proprio motu.
3. The Court finds that is has jurisdiction to take cognisance of the
other contested cases of violation of Article 3 (art. 3) (paragraph 2.31
of the memorial of the delegates of the Commission) if and to the
extent that the applicant Government put them forward as establishing
the existence of a practice.
4. The Court finds that it does not have jurisdiction to rule on the
correctness of the procedure followed by the Commission for hearing
the witnesses G 1, G 2 and G 3 in London on 20 February 1975, but that
it is empowered to assess the relevance and probative value of the
evidence so obtained."
After consulting the representatives of the two Governments concerned
and of the Commission, the President, by the same Order, fixed
19 April 1977 as the date for resumption of the hearings.
The second part of the hearings was held in public at the Human Rights
Building, Strasbourg, from 19 to 22 April.
9. At the hearings of February and/or April 1977 there appeared
before the Court:
- for the applicant Government:
- Mr. F.M. HAYES, Legal Adviser, Department of Foreign Affairs, Agent,
- Mr. D. COSTELLO, S.C., Attorney General,
- Mr. A.J. HEDERMAN, S.C.,
- Mr. R.J. O'HANLON, S.C.,
- Mr. A. BROWNE, S.C.,
- Mr. J. MURRAY, Barrister-at-Law, Counsel,
- Mr. L. LYSAGHT, Chief State Solicitor,
- Mr. P.P.D. QUIGLEY, Legal Assistant, Attorney General's Office,
- Mr. M. BURKE, First Secretary, Department of Foreign Affairs
(February hearings only),
- Mrs. J. LIDDY, Assistant Legal Adviser, Department of Foreign
Affairs (February hearings only),
- Mr. P. HENNESSY, First Secretary, Department of Foreign Affairs,
- Mr. D. WALSHE, Office of the Chief State Solicitor, Advisers;
- for the respondent Government:
- Mr. D.H. ANDERSON, Legal Counsellor, Foreign and Commonwealth Office,
Agent,
- Mr. I.K. MATHERS, Assistant Legal Adviser, Foreign and Commonwealth
Office, Assistant Agent,
- The Rt. Hon. S. SILKIN, Q.C., M.P., Attorney-General,
- Mr. J.B.E. HUTTON, Q.C.,
- Mr. A. LESTER, Q.C.,
- Mr. N. BRATZA, Barrister-at-Law, Counsel,
- Sir Basil HALL, K.C.B., M.C., T.D., Treasury Solicitor,
- Mr. C. LEONARD, Treasury Solicitor's Department,
- Mr. M.L. SAUNDERS, Law Officers' Department (February hearings
only),
- Mr. W.C. BECKETT, Law Officers' Department (April hearings only),
- Mr. A.P. WILSON, Northern Ireland Office,
- Mr. N. VARNEY, Northern Ireland Office,
- Mr. N. BRIDGES, Northern Ireland Office (February hearings only),
- Mr. R. SEAMAN, Northern Ireland Office (April hearings only),
Advisers;
- for the Commission:
- Mr. G. SPERDUTI, Principal Delegate,
- Mr. C. NØRGAARD, Delegate,
- Mr. T. OPSAHL, Delegate.
The Court heard addresses by Mr. Costello for the applicant
Government, by Mr. Silkin, Mr. Hutton and Mr. Lester for the
respondent Government and by Mr. Sperduti, Mr. Nørgaard and
Mr. Opsahl for the Commission, as well as their replies to a
question put by the Court.
10. In the course of the hearings and during the interval between the
two parts thereof those appearing before the Court produced various
documents including written submissions on Article 1 (art. 1) of the
Convention. The Commission subsequently furnished to the Registrar
other documents which he had requested on the instructions of the
Court or its President.
AS TO THE FACTS
I. THE EMERGENCY SITUATION AND ITS BACKGROUND
11. The tragic and lasting crisis in Northern Ireland lies at the
root of the present case. In order to combat what the respondent
Government describe as "the longest and most violent terrorist
campaign witnessed in either part of the island of Ireland", the
authorities in Northern Ireland exercised from August 1971 until
December 1975 a series of extrajudicial powers of arrest, detention
and internment. The proceedings in this case concern the scope and
the operation in practice of those measures as well as the alleged
ill-treatment of persons thereby deprived of their liberty.
12. Up to March 1975, on the figures cited before the Commission by
the respondent Government, over 1,100 people had been killed, over
11,500 injured and more than £140,000,000 worth of property destroyed
during the recent troubles in Northern Ireland. This violence found
its expression in part in civil disorders, in part in terrorism, that
is organised violence for political ends.
A. SOCIAL, CONSTITUTIONAL AND POLITICAL BACKGROUND
13. Prior to 1922 the whole of the island of Ireland formed part of
the United Kingdom. In that year, following a treaty of 1921,
legislation was passed which endorsed the setting-up, with
self-governing status within the British Commonwealth, of the Irish
Free State comprising initially all of the island's thirty-two
counties. Provision was made for six of the nine counties of the
province of Ulster in the north to opt out and remain within the
United Kingdom and they did this in 1922. Thereafter, the Irish Free
State became responsible for the government of the remaining
twenty-six counties and, in 1937, a new Constitution was introduced
proclaiming the independence and sovereignty of the State of what is
now known as the Irish Republic. After the Second World War it left
the Commonwealth and declared itself a republic.
14. From the 1920's onwards, Northern Ireland, that is the
above-mentioned six counties, had a separate Government and Parliament
of its own. In addition, the electorate of the province (meaning in
this judgment the six counties) returned twelve members to the United
Kingdom Parliament. With certain defined matters excepted, the
Northern Ireland Parliament and Government were the legislative and
executive authorities for the six counties until 30 March 1972 when
the United Kingdom authorities resumed "direct rule" of the province
(see paragraph 49 below).
15. Northern Ireland is not a homogeneous society. It consists of two
communities divided by deep and long-standing antagonisms. One
community is variously termed Protestant, Unionist or Loyalist, the
other is generally labelled as Catholic, Republican or Nationalist.
About two-thirds of the population of one and a half million belong to
the Protestant community, the remaining third to the Catholic
community. The majority group is descended from Protestant settlers
who emigrated in large numbers from Britain to Northern Ireland during
the seventeenth century. The now traditional antagonism between the
two groups is based both on religion and on social, economic and
political differences. In particular, the Protestant community has
consistently opposed the idea of a united Ireland independent of the
United Kingdom, whereas the Catholic community has traditionally
supported it.
16. The Irish Republican Army (IRA) is a clandestine organisation
with quasi-military dispositions. Formed during the troubles prior to
the partition of the island and illegal in the United Kingdom as well
as in the Republic of Ireland, the IRA neither accepts the existence
of Northern Ireland as part of the United Kingdom nor recognises the
democratic order of the Republic. It has periodically mounted
campaigns of terrorism in both parts of the island of Ireland and in
Great Britain. After 1962, the IRA was not overtly active for some
years.
During the time covered by the complaints of the applicant Government,
that is from 1971 to 1975, virtually all those members of the IRA
living and operating in Northern Ireland were recruited from among the
Catholic community.
17. Legislation designed to deal with matters affecting law and order
and the security of the State was first enacted by the Northern
Ireland Parliament in 1922 in the form of the Civil Authorities
(Special Powers) Act (Northern Ireland). This legislation
(hereinafter referred to as "the Special Powers Act") was an enabling
Act under which Regulations were from time to time made and brought
into operation. Thus, for instance, a Regulation dating from before
1949 declared illegal certain organisations, including the IRA. In
1950 and 1954, following raids carried out by the IRA in Great Britain
and Northern Ireland, Regulations were introduced granting powers of
entry and search. In 1956 and 1957, in order to combat an IRA
campaign then being launched, further Regulations were made dealing
with internment, curfew, special trial procedures, firearms and
explosives control, and restriction on movement. An account of the
particular Regulations at issue in the present case, namely
Regulations 10, 11 (1), 11 (2) and 12 (1), appears below at
paragraphs 81 to 84.
18. The differing aspirations of the two communities resulted in the
division between the main political parties in Northern Ireland being
based primarily on their attitude to the status of the province as
part of the United Kingdom rather than on political differences of the
type commonly found in the rest of the United Kingdom and elsewhere.
The Protestant community in general voted for the Unionist Party,
which wished Northern Ireland to remain within the United Kingdom,
whilst the Catholic community in general supported candidates
favouring a united, independent Ireland. Given the relative sizes of
the two communities, the inevitable result of this polarisation was
that the Unionist Party, supported almost exclusively by Protestants,
had a permanent majority in the Northern Ireland Parliament and formed
the Government of the province throughout the fifty years leading up
to direct rule in 1972. The abolition of proportional representation
in the early 1920's and the geographical arrangement of constituencies
effected a great increase in the size of the Parliamentary majority.
This situation understandably disenchanted the Catholic community.
19. Thus, whilst only a small minority of the latter community has
ever actively supported the IRA, a very much greater proportion had
always been discontented with Unionist government and the effects of
its in-built majority. The Catholics in the population regarded
themselves as discriminated against on various counts. The Cameron
Commission, a body appointed by the Northern Ireland Government in
March 1969 to report, inter alia, on the causes of disturbances in the
six counties in 1968-1969 (see paragraph 23 below), considered
justified many of the grievances then felt by the Catholics, in
particular those concerned with the allocation of houses, local
authority appointments, limitations on local electoral franchise and
deliberate manipulation of ward boundaries and electoral areas. The
European Commission of Human Rights itself came to the conclusion that
there certainly was an element of inherent bias in the whole political
system in Northern Ireland in favour of one community.
From the time of partition onwards there has always been a greater or
lesser degree of tension between the two communities, although since
the early 1920's there have been no disturbances comparable in scale
to those of recent years.
B. DEVELOPMENT OF THE CRISIS UP TO 1969
20. In 1963 the first moves towards a campaign for "civil rights" for
the Catholic community began to be made. The objectives of this
campaign were, broadly speaking, the removal of the discrimination
referred to above.
At the same time, though, manifestations of Protestant violence began
to emerge. In 1964 there was serious rioting in Belfast following a
Protestant march. In March 1966, several petrol bombs were thrown at
Catholic schools and property. In May 1966, a body calling itself the
Ulster Volunteer Force (UVF), previously unknown to the police, issued
a statement declaring war on the IRA and warning of its intention to
execute all IRA men. Shortly thereafter, two Catholics were murdered
and two others seriously wounded in Belfast. Three Protestants,
members of the UVF, were subsequently charged and convicted for these
attacks. The UVF, believed by the police to have consisted of
only 5 to 6 persons, was declared illegal in June 1966 and seems to have
remained inactive from then until 1969.
During this period, there was no violent activity of significance by
the IRA, who, after 1962, appear to have concentrated on political
activity.
21. Throughout 1967, the movement for "civil rights" for the Catholic
community gathered momentum. The first civil rights march took place
in August 1968 without incident, but in October a clash with the
police and two days' rioting ensued after a march in Londonderry.
22. On 22 November 1968, the Northern Ireland Government announced a
reform programme to deal with the Catholic grievances. Nevertheless,
the civil rights movement continued its campaign and marches. The
marches again led to clashes with the police and to violent
confrontation with Protestant counter-demonstrators, often armed with
cudgels, stones and the like.
23. The demonstrations, disturbances and rioting continued in various
places into 1969. In paragraph 226 of its report, presented to the
Northern Ireland Parliament in September 1969, the Cameron Commission
expressed the view that certain Protestant extremist organisations
"must ... bear a heavy share of direct responsibility for [certain of]
the disorders ... and also for inflaming passions and engineering
opposition to lawful, and what would in all probability otherwise have
been peaceful, demonstrations or at least have attracted only modified
and easily controlled opposition". Police conduct in handling certain
disturbances was also criticised by the Cameron Commission.
24. In March and April 1969, five major explosions thought to have
been caused by the UVF occurred at water and electricity installations
in three counties. Units of British troops were flown into the
province.
The Northern Ireland Prime Minister, whose reform policies were
unpopular with many Protestants, resigned at the end of April. A few
days later, his successor declared a general amnesty for persons
charged with or convicted of offences connected with the recent
political protests and demonstrations.
25. Tension remained high; sectarian disturbances continued
periodically up to mid-August. On 12 August 1969, a traditional
Protestant anniversary parade sparked off several days of large-scale
rioting, first of all in Londonderry and thereafter spreading to
Belfast and other places. After 10 civilians had been killed
and 145 civilians and 4 policemen wounded, it was found necessary to
call in aid units of the British army.
The riots in August 1969 greatly exceeded in severity any that had
occurred in the previous years. Casualties and damage to property
were extensive. In Belfast, for instance, a large number of houses
and licensed premises, mostly Catholic owned or occupied, were burnt
down, destroyed or damaged.
26. The Northern Ireland Prime Minister called a peace conference on
18 August which was attended by representatives of the two
communities. On the next day, the United Kingdom and Northern Ireland
Governments issued a joint declaration re-affirming, inter alia, their
commitment to reforms in the six counties.
In October, a programme of reform was announced; it included the
reorganisation of the police force and local government, measures to
prohibit discrimination in public employment, and the establishment of
a Community Relations Commission and a central housing authority.
27. However, the publication of a government report into the
functions and organisation of the province's police force had produced
a violent reaction in Protestant circles. On 11 October, a policeman
was shot dead by a bullet fired from a crowd of Protestant rioters in
Belfast. He became the first member of the security forces to be
killed during the disorders of the past few years.
28. The IRA carried out no major acts of violence in 1969. However,
at Easter 1969 they had reactivated their forces, placing all
volunteers on full alert. At the same time, the IRA are thought to
have gained much more support as a result of the riots and of an
accompanying loss of confidence by Catholics in the police.
Towards the end of the year, the IRA split into two wings. For some
time there had been dissension in the movement between those who hoped
to bring about a form of socialist people's republic for all Ireland
and those who considered that such involvement deflected the IRA from
its traditional aims. The traditionalists formed themselves into the
Provisional IRA whilst the followers of the new political doctrines
became the Official IRA. Both factions remained organised along
military lines.
C. SITUATION FROM 1970 UNTIL THE INTRODUCTION OF INTERNMENT ON
9 AUGUST 1971
29. The situation worsened in 1970. The number of explosions
recorded by the police jumped dramatically from a total of 8 in 1969
to 155 in 1970. Some explosions were caused by Loyalists - about 25
according to statistics cited by the Commission - but there is no
dispute that the majority were the work of the IRA. In total,
23 civilians and 2 policemen were killed during the course of the
year. None of these deaths was attributed by the police to Protestant
activity.
30. The terrorist campaign by the IRA appears to have begun in
earnest in 1970 and to have been one primarily of bombing buildings
and attacking the security forces. There was also undoubtedly some
terrorist activity on the part of Loyalists, directed largely against
politicians seen as hostile to Unionism and against Catholic owned or
occupied property, particularly licensed premises. Responsibility for
certain explosions was in fact claimed by the UVF.
31. The sharp increase in what may be termed terrorist-type activity
was not accompanied by the cessation of inter-communal street
disturbances which continued sporadically during the year of 1970 and
accounted for the deaths of a number of people.
32. Between January and July 1971, the violence intensified, being
marked by a dramatic upsurge in terrorist activity by the IRA.
Police statistics record a total of 304 explosions, including 94 for
the one month of July. Shooting at the security forces' patrols built
up and for the first time soldiers numbered amongst those killed. By
9 August, 13 soldiers, 2 policemen and 16 civilians had died since the
beginning of the year. In addition, serious and prolonged rioting
occurred in both Catholic and Protestant areas.
Apart from one explosion in which a civilian was killed, there is no
evidence of any deaths or even injuries having been caused by Loyalist
terrorists. On the applicant Government's own approximate estimate,
Loyalist explosions accounted for only 14 out of the overall total of
304. Furthermore, as in 1970, Loyalist terrorists used mainly pipe
bombs which were not very powerful in comparison with the devices
employed by the IRA.
The Commission stated in its report that the IRA were indisputably
responsible for the very great majority of the acts of violence during
this period. Loyalist terrorist activity had declined; there is no
evidence that such Loyalist terrorism as did exist formed part of a
highly organised campaign in the sense that IRA activity did. The
Commission's conclusion was that the threat and reality of serious
terrorism came almost exclusively from the IRA.
33. On the political front during 1970 and 1971, progress was made in
implementing the reforms announced in October 1969 (see paragraph 26
above). The Prime Minister of Northern Ireland, however, resigned in
March 1971. In June 1971, his successor proposed a number of further
steps designed to provide a positive rôle for representatives of the
minority community in the actual process of government.
D. 9 AUGUST 1971 (INTRODUCTION OF INTERNMENT) UNTIL 30 MARCH 1972
(INTRODUCTION OF DIRECT RULE)
1. The decision to introduce internment
34. It was against the background outlined above that on
9 August 1971 the Northern Ireland Government brought into operation
extrajudicial measures of detention and internment of suspected
terrorists. From 9 August 1971 until 7 November 1972, when certain of
the Special Powers Regulations were replaced, the authorities in
Northern Ireland in fact exercised four such extrajudicial powers:
(i) arrest for interrogation purposes during 48 hours (under
Regulation 10); (ii) arrest and remand in custody (under
Regulation 11 (1)); (iii) detention of an arrested person (under
Regulation 11 (2)); and (iv) internment (under Regulation 12 (1)). An
account of the operation of these powers and the procedures thereunder
is given below at paragraphs 81 to 84.
35. For some time, the possibility of internment had been extensively
canvassed in the press and amongst politicians. Pressure had also
been mounting within the Protestant community for its introduction; in
the early months of 1971 there had been demonstrations against the
then Prime Minister because of his Government's alleged failure to
deal with the IRA threat.
The decision to introduce a policy of detention and internment was
taken on 5 August 1971 by the Northern Ireland Government, following a
meeting in London between the Northern Ireland and United Kingdom
Governments. Prior to this, the question had been considered at the
highest level in Northern Ireland and frequent consultations had taken
place between the two Governments.
In the latter half of July 1971, as an apparent last resort to avoid
introducing internment, the security forces had intensified operations
against suspected terrorists, mounting searches and detaining for
questioning what were believed to be key figures in the IRA.
Some 90 persons were arrested but no significant results were yielded.
Prior to August 1971, the intelligence obtained by the police had
failed to provide anything but a very general picture of the IRA
organisation.
2. Reasons for the decision to introduce internment
36. The campaign of violence carried out by the IRA had attained
unprecedented proportions by the middle of 1971. This was clearly the
dominant factor behind the decision to exercise the extrajudicial
powers.
Three principal reasons for the decision have been cited by the
respondent Government. Firstly, the authorities took the view that
the normal procedures of investigation and criminal prosecution had
become inadequate to deal with IRA terrorists; it was considered that
the ordinary criminal courts could no longer be relied on as the sole
process of law for restoring peace and order. The second reason given,
which was closely related to the first, was the widespread
intimidation of the population. Such intimidation often made it
impossible to obtain sufficient evidence to secure a criminal
conviction against a known IRA terrorist in the absence of an
admissible confession or of police or army testimony. Furthermore, the
conduct of police enquiries was seriously hampered by the grip the IRA
had on certain so-called "no-go" areas, that is Catholic strongholds
where terrorists, unlike the police, could operate in comparative
safety. Thirdly, the ease of escape across the territorial border
between Northern Ireland and the Republic of Ireland presented
difficulties of control.
In addition to the three "security" reasons, there was, in the
judgment of both the Northern Ireland Government and the United
Kingdom Government, no hope of winning over the terrorists by
political means, the reform programme initiated in 1969 having failed
to prevent continuing violence.
The authorities therefore came to the conclusion that it was necessary
to introduce a policy of detention and internment of persons suspected
of serious terrorist activities but against whom sufficient evidence
could not be laid in court. This policy was regarded as a temporary
measure primarily aimed at breaking the influence of the IRA. It was
intended that a respite would be provided so as to enable the
political and social reforms already undertaken to achieve their full
effects.
3. The decision whom to arrest, detain and intern
37. The possibility of interning Loyalists was discussed in the
preparatory stages. The security forces were aware of some Loyalist
terrorist activity in 1971 and also of certain Protestant extremists,
described by those forces as "rabble rousers" and suspected by them of
acts of violence or intimidation, if not of terrorism strictly
speaking. However, the security forces did not judge at this stage
that there was any serious threat coming from the Loyalist quarter.
There was said to be no army or police intelligence then available
which indicated that any organisation other than the IRA had been
actively engaged in bombing and killing in the very recent months.
On account of the unprecedented level it had reached, and because of
its nature as a highly organised, politically motivated campaign
designed to overthrow the State, IRA terrorism was regarded as the
real menace to law and order. Protestant terrorist activity, which
was in the main directed against the Catholic community and not the
State or the security forces, was seen by the authorities more as
sporadic and as being on a minute scale in comparison and on a much
less organised basis.
38. In the weeks preceding the introduction of internment, the
police, in consultation with the army, were preparing lists of persons
to be arrested. The lists included not only suspected IRA terrorists
but also persons suspected of being involved or associated with the
IRA or even, in a few cases, of possessing information about others so
involved or associated. It was generally understood that the target
of the planned exercise was the IRA.
4. Operation Demetrius
39. Starting at 4.00 a.m. on Monday, 9 August 1971, the army, with
police officers occasionally acting as guides, mounted an operation to
arrest the 452 persons whose names appeared on the final list. In the
event, some 350 persons were arrested in accordance with the Special
Powers Regulations. The arrested persons were taken to one of the
three regional holding centres (Magilligan Weekend Training Centre in
County Londonderry, Ballykinler Weekend Training Centre in County Down
and Girdwood Park Territorial Army Centre in Belfast) that had been
set up to receive the prisoners during 48 hours. All those arrested
were subjected to interrogation by police officers of the Royal Ulster
Constabulary (RUC). 104 persons were released within 48 hours. Those
who were to be detained were sent on to the prison ship "Maidstone" or
to Crumlin Road Prison, both in Belfast. Prior to being lodged in
detention, 12 individuals were moved to one or more unidentified
centres for "interrogation in depth" extending over several days.
Operation Demetrius, as the Commission points out, was not a selective
manoeuvre aimed at individuals but a "sweeping-up" exercise directed
against the IRA organisation as a whole. It is generally accepted
that because of the scale and speed of the operation, some persons
were arrested or even detained on the basis of inadequate or
inaccurate information.
5. Events subsequent to Operation Demetrius
40. At 11.15 a.m. on 9 August 1971, the Prime Minister of Northern
Ireland announced to the public the introduction of internment. He
stated, inter alia:
"The main target of the present operation is the Irish Republican Army
... They are the present threat; but we will not hesitate to take
strong action against any other individuals or organisations who may
present such a threat in the future."
41. Arrests continued to be made during the rest of the year, partly
of persons on the above-mentioned list and partly of persons who came
under suspicion thereafter.
The three regional holding centres were closed down in August 1971
shortly after Operation Demetrius was completed, and in
September/October 1971 police centres were established at Palace
Barracks (Holywood, County Down), Girdwood Park (Belfast), Gough
(County Armagh) and Ballykelly (County Londonderry) for the purpose of
holding and interrogating persons arrested under the Special Powers
Regulations.
42. The introduction of internment provoked a violent reaction from
the Catholic community and the IRA. Serious rioting broke out in
Belfast and elsewhere, there was a considerable increase in shootings
and bombings, and the security situation in general deteriorated
rapidly. Within the minority community there occurred a further
alienation from the authorities and the security forces, together with
a rise in support for the IRA.
43. Although surprised by the extent of this reaction, both the
Northern Ireland and the United Kingdom Governments continued their
efforts to secure political progress. In London, the Home Secretary
announced in September 1971 his Government's determination to ensure
that the Catholic population in the province should have an active,
permanent and guaranteed rôle in the conduct of public business. In
the same month, a meeting took place in England between the Prime
Ministers of the United Kingdom, Northern Ireland and the Irish
Republic. In October, the Belfast Government published proposals for
involving the opposition in government. However, these proposals were
considered unacceptable by the political representatives of the
Catholic community and nothing came of them.
44. Neither internment nor the political initiatives ended the
violence. On the contrary, the numbers of deaths, explosions and
shootings recorded by the police for each month throughout the period
from August to December 1971 were higher than those recorded in any of
the previous seven months of the year. There was a total
of 146 persons killed, including 47 members of the security
forces and 99 civilians, 729 explosions and 1,437 shooting incidents.
45. Apart from rioting and a small-scale bombing campaign of licensed
premises, there was apparently little serious violence by Protestants
in 1971. Only one death occurring between August and the end of the
year, an assassination of a Protestant in September, was attributed by
the police to Loyalists. On the other hand, intimidation of members
of the opposite community to move from their homes seems to have
become more prevalent on both sides, although the official figures
indicate that Catholics were principally affected.
46. On the Protestant side, the increased violence at this time led
to the formation of defence associations or vigilante groups which
ultimately amalgamated in or about September 1971 to become the Ulster
Defence Association (UDA). The UDA did not appear openly on the
streets until the spring of 1972. There was also seen the start of a
development later to become significant, that is the holding of large,
carefully prepared parades by Loyalist organisations (see paragraph 51
below). The latter and in particular the UDA were looked on by the
police as primarily political organisations not engaged in violence as
such.
47. At the beginning of 1972, despite a small drop, the level of
violence remained higher than at any time before 9 August 1971. On
30 January 1972, 13 people were killed by army gunfire in the course of
disorders taking place in the predominantly Catholic town of
Londonderry. This incident led to a new upsurge in support for the
IRA amongst the Catholic community.
In the first three months of 1972, 87 people were killed,
including 27 members of the security forces. Two assassinations
carried out in March, one of a Protestant and the other of a Catholic,
were the only deaths attributed to Loyalist activity. 421 explosions,
the vast majority attributed to the IRA, were caused during the same
period.
48. From August 1971 until 30 March 1972 there had been in Northern
Ireland 1,130 bomb explosions and well over 2,000 shooting incidents.
158 civilians, 58 soldiers and 17 policemen had been killed,
and 2,505 civilians, 306 soldiers and 107 RUC members injured.
Throughout these months the numbers held under detention or internment
orders proceeded to rise until a total of over 900 persons, all
suspected of involvement with the IRA, were held at the end of
March 1972. At the same time, the ordinary processes of the criminal
law continued to be used, against Protestants as well as Catholics,
whenever there was thought to be sufficient evidence to ground a
criminal conviction. Thus, between 9 August 1971 and 31 March 1972,
over 1,600 people were charged with "terrorist-type" offences.
49. In March 1972, in view of the deteriorating circumstances, the
Government in London decided that they should assume direct
responsibility for the administration of law and order in Northern
Ireland if there was to be any hope of political progress. This
decision was unacceptable to the Government of the province and
accordingly it was announced on 24 March 1972 that direct rule from
Westminster not only on law and order but on all matters was to be
introduced.
Under the Northern Ireland (Temporary Provisions) Act 1972
(hereinafter referred to as the "Temporary Provisions Act"), which was
passed by the United Kingdom Parliament and came into force on
30 March 1972, temporary provision was made for the exercise of the
executive and legislative powers of the Northern Ireland Parliament
and Government by the United Kingdom authorities. The Belfast
Parliament was prorogued and the Queen empowered to legislate in its
stead by Order in Council. The executive powers of the Belfast
Government were transferred to the Secretary of State for Northern
Ireland. This was a new office created for the purpose; its holder
was a member of the United Kingdom Government and answerable to the
United Kingdom Parliament. The legislation was enacted for a period
of one year but was subsequently extended.
E. 30 MARCH 1972 (INTRODUCTION OF DIRECT RULE) UNTIL 5 FEBRUARY 1973
(FIRST DETENTION OF LOYALISTS)
50. On assuming direct rule, the United Kingdom Government stated
that one of their most important objectives was to bring internment
under the Special Powers Act to an end and to consider how far the
powers under that Act could be dispensed with. On 7 April 1972, the
Secretary of State for Northern Ireland announced the immediate
release of 47 internees and 26 detainees. By mid-May 259 persons had
been released. The decision to phase out internment was not dictated
by any fall in the level of violence. Rather it was intended to open
the way for political progress by reducing tension as the first step
in the process of reconciliation.
On the political level, the United Kingdom was seeking the
establishment of an equitable form of government for Northern Ireland,
acceptable to both communities.
51. The introduction of direct rule, together with the release of
detainees, caused resentment and dismay amongst the Protestant
community. A two-day strike, which proved largely effective, was
immediately called by the leader of one of the extremist movements on
the Loyalist side.
Street demonstrations and marches called by the UDA appear to have
begun shortly after 30 March 1972. The UDA was organised on
pseudo-military lines, its members, estimated at between 20,000 and
30,000 persons, giving themselves military ranks. The UDA used its
forces to erect barricades, set up road blocks and disrupt civil life
generally. They paraded in large numbers through the centre of
Belfast and elsewhere, many of them masked and dressed in
para-military uniforms and on occasions openly carrying weapons such
as sticks or cudgels. Such demonstrations, however, seem rarely to
have led to physical violence. Whilst it was illegal to block roads,
wear uniforms or carry offensive weapons, the security forces did not
attempt to arrest those taking part in UDA demonstrations since they
feared that major riots would result. Neither were the extrajudicial
powers of detention and internment ever used, against either Catholics
or Protestants, to combat this kind of illegal activity.
According to the respondent Government, consideration was given to the
possibility of proscribing the UDA, but it was decided that on balance
no good purpose would be served by doing so, not least because most of
its members were not engaged in violence. It is generally accepted,
however, that UDA membership overlapped, to some extent at least, with
the smaller and more militant extremist bodies which were illegal,
such as the UVF (see paragraph 20 above).
52. Other aspects of Loyalist activity during this stage of the
crisis included the erection of barricades and the continuing
intimidation of Catholics, a problem that became particularly grave in
the summer of 1972. There were serious disturbances in Protestant
areas in September and October 1972, with Loyalist terrorists
exchanging fire with the security forces. The rioting in October
ceased after the UDA had ordered the confrontation with the security
forces to stop.
53. After the introduction of direct rule, there occurred a marked
upward turn in Loyalist terrorism, evidenced by a few bombing attacks,
a large-scale build-up of arms and ammunitions, and above all
sectarian assassinations.
Sectarian assassinations, which the respondent Government term the
outstanding feature of Loyalist violence since 1972, first reached
serious proportions in the spring of 1972. Victims seem largely to
have been chosen at random on no other ground than their membership
of, or links with, the other community. Kidnapping and torturing
sometimes accompanied this kind of indiscriminate killing. While both
sides committed sectarian murders, it is generally accepted that
Protestants were responsible for more than Catholics. The police had
difficulty in detecting those responsible for sectarian
assassinations. In particular, witnesses were reluctant to come
forward and were subjected to intimidation. Accordingly, a
confidential telephone system was installed in August 1972, whereby
information could be given anonymously to the security forces.
54. Although Loyalist terrorist activity had grown significantly, it
nonetheless remained that the great bulk of serious violence in this
period was attributed to the IRA (see paragraph 61 below). The high
level of IRA terrorism did not at all abate despite the phasing-out of
internment. In fact, there was a steady rise in explosions, shooting
incidents and casualties amongst the security forces over the period
from March until the end of May. However, on 29 May 1972 the Official
IRA, who had been responsible for a lesser amount of violence than the
Provisionals, declared a truce which they have on the whole respected
ever since. On 22 June 1972 the Provisional IRA in their turn
announced a truce, becoming effective on 26 June. The Provisionals'
truce was, however, called off on 9 July following an incident arising
out of a communal argument between the UDA and Catholics about the
allocation of accommodation on a Belfast housing estate.
55. After the breakdown of the ceasefire, Provisional IRA violence
was resumed at an increased level. In July 1972 alone, 21 members of
the security forces and 74 civilians were killed; in addition, there
were nearly 200 explosions and 2,800 shooting incidents. These figures
were the highest for any month in the entire emergency up to the end
of 1974. Responsibility was attributed to Loyalists for 18 deaths and
only 2 explosions.
56. Faced with the mounting tide of violence, the United Kingdom
Government decided to restore the presence of the security forces in
the "no-go" areas. After due warning had been given to the civilian
population, a large-scale manoeuvre, known as Operation Motorman, was
mounted on 31 July beginning at 4.00 a.m.
Even after Operation Motorman the police were still not able to
function properly in Catholic areas. Access to Protestant areas
remained easier for the police and they were not subject there to the
same risk of attack. The army operated principally, and was employed
to carry out police duties, in those areas where the minority
community predominated.
57. Nevertheless, the level of violence, although still high,
immediately fell. In August, September and October, there was an
overall total of approximately 2,200 shooting incidents as opposed to
2,800 for July alone. The monthly average of deaths was less than
half the July total, and the number of explosions became progressively
less.
According to the respondent Government, a development contributing to
the maintenance of this gradual reduction was the institution in
November 1972 of a revised system for the detention of terrorists.
In the months following the introduction of direct rule - including
July, the worst of these months for violence - no new internment
orders were made and fresh detentions virtually ceased. From
September onwards, after the breakdown of the attempted ceasefire, the
number of detention orders - as before, against IRA suspects only -
increased, while the rate of releases fell. There was, however, no
large-scale operation to re-detain and re-intern people.
58. The political gesture of phasing out internment had not, as
hoped, elicited a positive response from the IRA; on the contrary,
violence had mounted to fresh heights. Furthermore, the authorities
judged that the capability of the ordinary processes of law to counter
IRA terrorism continued to be impeded by a number of circumstances
such as the intimidation of potential witnesses and the difficulty of
bringing to trial those responsible for directing terrorist
operations.
The United Kingdom Government therefore became convinced that it was
necessary to find fresh means of separating known terrorists from the
population at large. On 21 September 1972, the Government announced
that it was to set up a Commission, subsequently appointed in October
under the chairmanship of Lord Diplock,
- to consider "what arrangements for the administration of justice in
Northern Ireland could be made in order to deal more effectively with
terrorist organisations by bringing to book, otherwise than by
internment by the Executive, individuals involved in terrorist
activities, particularly those who plan and direct, but do not
necessarily take part in, terrorist acts"; and
- "to make recommendations".
Without waiting for the report of the Diplock Commission, the
Government brought into effect on 7 November 1972 the Detention of
Terrorists (Northern Ireland) Order 1972 (abbreviated hereafter to the
"Terrorists Order"), an Order made in exercise of the powers conferred
by the Temporary Provisions Act (see paragraph 49 above). This Order,
which was of a temporary nature, revoked Regulations 11 (2)
(detention) and 12 (1) (internment); in replacement it instituted,
with further procedural guarantees for the protection of the
individual concerned, a new system of "interim custody" and
"detention" for persons suspected of participation in terrorist
activities. Regulations 10 and 11 (1) (arrest) remained. Further
details on the Order are given below at paragraphs 85 to 87.
59. The report of the Diplock Commission was presented to the United
Kingdom Parliament in December 1972. This report analysed the minimum
requirements of a judicial process, the effects of intimidation,
possible changes in the rules of evidence and the need for detention
without trial. It stated, inter alia:
"The fear of intimidation is widespread and well-founded. Until it can
be removed and the personal safety of witnesses and their families
guaranteed, the use by the Executive of some extrajudicial process for
the detention of terrorists cannot be dispensed with."
The European Commission of Human Rights, on the basis of the evidence
it had itself obtained, accepted that the findings of the Diplock
report as to the level of intimidation were generally warranted.
60. Another contributory factor invoked by the respondent Government
in connection with the fall in violence (see paragraph 57 above) was
the intensive programme of consultations which they undertook with the
political parties in Northern Ireland on the question of the future
government of the province. These consultations, first commenced in
July and August 1972, continued throughout the last weeks of 1972 and
the early months of 1973. Apart from the steps taken on the security
front, the United Kingdom Government thus maintained the new emphasis
placed, since the introduction of direct rule, on attempting to find a
solution to the crisis through political means (see paragraph 50
above).
61. The gradual reduction in the level of violence was maintained
until the end of this period. The figures for deaths and explosions
for January 1973 were, with one slight exception, lower than for any
month since the introduction of internment. Despite this general
reduction, though, the development of Loyalist militancy and terrorist
activity continued.
From 1 April 1972 until 31 January 1973, 398 persons were killed,
72 of these deaths being attributed to Loyalists. The overall total
included 123 members of the security forces, the vast majority of whom
were considered to have been killed by the IRA, and an equal number of
victims of "factional or sectarian" assassinations. Of these
assassinations, 69 were ascribed to Loyalists, 34 to the IRA, with no
attribution being possible in the remaining 20 cases.
For their part, explosions totalled 1,141; no more than a small
percentage - for example, 29 out of 691 explosions recorded between
1 July 1972 and 31 January 1973 - were regarded as being the work of
Loyalists.
The increasing Protestant militancy was further evidenced by the
statistics on intimidation, arms and ammunitions recovered, and
charges brought for "terrorist-type offences". Thus, between
31 July 1972 and 31 January 1973, charges of the kind just referred to
were laid against 640 persons, namely 402 Catholics and
238 Protestants; within this total, 45 individuals - 24 Protestants,
including 16 in the one month of January 1973, and 21 Catholics - were
charged with murder or attempted murder.
62. Loyalist terrorism was linked by the police with Protestant
extremist organisations, notably the UVF. The police considered that
the UVF's membership and acts of terrorism had increased from 1972
onwards following a period of relative inactivity after its 1969
bombing campaign (see paragraphs 24 and 30 above). It was looked on
as a well-armed and organised body. In general, by about the middle
of 1972 the police had reasonably good intelligence as to the identity
of the violent elements on the Protestant side, but there were cases in
1972 in which it was impossible to procure sufficient evidence to
bring such persons before the ordinary criminal courts. Nevertheless,
none of the extrajudicial orders made between the introduction of
direct rule and 5 February 1973 (see paragraph 64 below) applied to
Loyalists.
63. Loyalist violence, however, remained on a far smaller scale than
that of the Provisional IRA who, as the above-cited figures show, were
still responsible for the great bulk of the terrorist deeds recorded.
In the view of the respondent Government and of the Commission,
Loyalist and IRA violence were to be distinguished in further respects
in addition to volume. Loyalist terrorism consisted largely of
intimidation and sectarian assassinations, whereas the IRA campaign
also included attacks on members of the security forces and the
bombing of public places. As indicated earlier (paragraph 37 above),
the character, aims and background of the various organisations
engaged in terrorism on the two sides differed. The evidence suggests
that the Loyalist terrorist groups were at the time more amorphous
than the IRA. Within the security forces there was a tendency, which
the Commission regarded as justified in many ways, to look on Loyalist
terrorists as "criminals" or "hooligans" and on the IRA as the
organised "terrorist" enemy. The prospects of obtaining sufficient
admissible evidence for a criminal prosecution were, it seems, judged
by the security forces as being better in relation to Loyalists than
to IRA suspects. Given the continued inability of the police to
operate normally in Catholic areas and the greater extent and
organisation of the IRA campaign, the Commission found such an
attitude "not surprising".
Finally, the statistics referred to above at paragraph 61 indicate
that action, in the form of searches, recovery of arms and the
bringing of criminal charges, was being taken by the authorities
against both sides.
64. From 30 March until 7 November 1972 no new internment orders were
made, although it was considered necessary to make 107 detention
orders under Regulation 11 (2). By the latter date 628 men had been
released from internment and 334 from detention, leaving 167 still
interned and 119 still detained. Between the entry into force of the
Terrorists Order and 31 January 1973, 166 interim custody orders and
128 detention orders were made while 94 persons were released.
65. In the context of the period from 30 March 1972 to
5 February 1973, the Commission noted in its report that subsequent to
the introduction of direct rule the extrajudicial powers appear to
have been exercised on a more selective basis and, broadly speaking,
in accordance with the following criteria:
(i) extrajudicial orders were served only on persons suspected of
involvement in serious and organised terrorism;
(ii) they were used solely as a "last resort", that is only in cases
where sufficient evidence was not available to justify prosecution
before the ordinary courts;
(iii) as a general practice, they were not made against a person in
respect of matters for which he had been tried and acquitted by an
ordinary court, provided that it had been possible to put before the
court all the relevant evidence.
66. At the beginning of February 1973, a British soldier was shot
dead in a Protestant part of Belfast. Shortly afterwards, on
5 February 1973, two interim custody orders were made in respect of
Loyalists. These two men were the first Loyalists against whom the
extrajudicial powers were exercised. According to the applicant
Government, the specific act of which one of these men was suspected
- the bombing of a bus, responsibility for which had been claimed
immediately after the event by the UVF - had caused a public outcry
and had actually forced a decision to "intern" the first suspected
Protestant terrorist. The decision itself had been the subject of
discussions between the Secretary of State for Northern Ireland, the
General Officer Commanding the British forces in the province and high
ranking civil servants. The relevant higher authorities are noted in
the Commission's report as recognising that the detention of Loyalists
would lead to repercussions in the security situation. The Commission
accepts that the risk of a severe outbreak of Protestant violence in
response was clearly a very real one.
Prior to February 1973, it seems, no recommendations had been made to
the Secretary of State for the detention or internment of Loyalists.
F. 5 FEBRUARY 1973 ONWARDS
67. According to the applicant Government, the exercise of the
extrajudicial powers against Loyalists brought in its wake widespread
threats from the UDA. In general, however, the pattern of violence
from February 1973 onwards can be said to have followed the previous
pattern, although at a somewhat lower level than in 1972. The bulk of
the terrorist acts, that is most of the bombing and shooting attacks
on members of the security forces were still perpetrated by the
Provisional IRA, with the Loyalists committing the majority of the
sectarian assassinations.
From 1 February 1973 until 31 October 1974, the police registered
403 deaths, of which 116 were considered to be the responsibility of
Loyalists. Of the 145 "factional or sectarian" murders recorded,
95 were ascribed to Loyalists and 40 to the IRA and in 10 cases no
attribution was possible. In these twenty-two months, the number of
explosions dropped to less than 1,600 - about 330 being attributed to
Loyalists - as compared with approximately 1,400 in the one year of
1972. For their part, shootings fell from 10,628 to 7,112, although
an increase occurred in punishment shootings such as "executions" and
"knee-cappings".
68. On 8 August 1973, the Northern Ireland (Emergency Provisions)
Act 1973 (hereafter abbreviated to the "Emergency Provisions Act")
came into force. This Act, which was based mainly on the
recommendations of the Diplock Commission (see paragraphs 58 and 59
above), repealed the 1922 Special Powers Act, Regulations 10 and
11 (1) and the 1972 Terrorists Order, while retaining in substance the
procedure laid down in the latter Order. Briefly, the extrajudicial
powers introduced under the Emergency Provisions Act were: (i) arrest
and detention for 72 hours; (ii) interim custody for 28 days; and
(iii) detention (see paragraphs 88 and 89 below for a fuller
explanation). These emergency powers remained in force for a period of
one year unless renewed. The Act also dealt with the trial and
punishment by the ordinary courts of certain scheduled offences, for
the most part offences concerned with violence. One provision,
section 6, is referred to below at paragraph 136.
69. Between 1 February 1973 and 31 October 1974, interim custody
orders were served on 99 Protestants and 626 Catholics; at all times
many more Catholics than Protestants were actually held. Shortly
before Christmas 1973, 65 detainees, 63 of whom were Catholics, were
released.
70. During the same period, 2,478 persons were charged with
"terrorist-type offences", the total being made up as follows:
1,042 Protestants, 1,420 Catholics and 16 soldiers. These figures
included 60 Protestants and 66 Catholics charged with murder. In
addition, searches were being conducted and arms recovered in relation
to both sides.
71. While the level of violence was reduced in the years 1973 and
1974, progress on the political front was somewhat erratic. In
March 1973, the United Kingdom Government published a White Paper
setting out proposals for the constitutional future of the six
counties. These proposals envisaged a new regional government with
participation at "cabinet" level by representatives of both
communities. A 1973 Act provided for the election of a Northern
Ireland Assembly before the main constitutional legislation was
enacted. Elections, based on the principle of proportional
representation in order to ensure a fair representation for the
Catholic minority, were held on 30 June 1973. Of the 78 members
elected to the Assembly, 51 were in favour of the proposed
constitutional changes, even though the extreme Loyalist parties had
conducted a campaign of opposition.
72. The White Paper proposals were enacted in July 1973 in the form
of the Northern Ireland Constitution Act 1973. This Act empowered the
Assembly to legislate within certain limits and established an
Executive. A Standing Advisory Commission on Human Rights was
instituted to advise the Secretary of State. The Act also
specifically provided that legislation passed by the Assembly would be
void if it discriminated on the ground of religious belief or
political opinion; in addition, discrimination by public authorities
on such grounds was expressly rendered unlawful.
The provisions of the Act relating to legislative and executive powers
required the passing by the United Kingdom Parliament of a Devolution
Order. The Order was made on 19 December 1973 and the devolution
became effective on 1 January 1974. This devolution, which was based
on the principle of "power-sharing" between the two communities,
marked for a certain time the end of direct rule.
73. The Northern Ireland Executive came into office on
1 January 1974. For the first time, a Northern Ireland Government
contained representatives of both the majority and minority
communities, but its life proved to be very brief. In May 1974,
Protestant extremist groups combined to organise a politically
motivated strike which brought about the downfall of the Executive and
a return to direct rule from Westminster. On 29 May, Her Majesty,
acting under the Constitution Act referred to in the preceding
paragraph, by Order in Council directed that the Northern Ireland
Assembly should stand prorogued for four months.
On 17 July 1974, the Northern Ireland Act 1974 was passed by the
United Kingdom Parliament in order to make temporary provision for the
government of the six counties. This Act suspended the functions of
the above-mentioned Assembly and enabled laws to be made by Order in
Council, enacted that no appointments to the Executive were to be
made, and made the province's departments subject to the direction and
control of the Secretary of State for Northern Ireland.
74. In 1974, the United Kingdom Government appointed the
Gardiner Committee whose terms of reference were to consider what
provisions and powers, consistent to the maximum extent practicable in
the circumstances with the preservation of civil liberties and human
rights, were required to deal with terrorism and subversion in
Northern Ireland, including provisions for the administration of
justice; to examine the working of the 1973 Emergency Provisions Act;
and to make recommendations.
The report of the Gardiner Committee was presented to the United
Kingdom Parliament in January 1975. This report critically examined
trial procedures before the ordinary courts, existing and proposed
offences connected with terrorism, the powers of the security forces,
prison accommodation, special category prisoners and detention. When
dealing with the question of detention, the Gardiner Committee noted
at paragraph 143:
"... We have detailed evidence of 482 cases of intimidation of
witnesses between 1st January 1972 and 31st August 1974: and there
must be many more. Civilian witnesses to murder and other terrorist
offences are either too afraid to make any statement at all, or,
having made a statement identifying the criminal, refuse in any
circumstances to give evidence in court. The prevalence of murder and
knee-capping make this only too easy to understand."
The Gardiner Committee, while making certain recommendations about
detention and existing detention procedures, concluded at
paragraphs 148 and 149:
"After long and anxious consideration, we are of the opinion that
detention cannot remain as a long-term policy. In the short term, it
may be an effective means of containing violence, but the prolonged
effects of the use of detention are ultimately inimical to community
life, fan a widespread sense of grievance and injustice, and obstruct
those elements in Northern Ireland society which could lead to
reconciliation. Detention can only be tolerated in a democratic
society in the most extreme circumstances; it must be used with the
utmost restraint and retained only as long as it is strictly
necessary. We would like to be able to recommend that the time has
come to abolish detention; but the present level of violence, the
risks of increased violence, and the difficulty of predicting events
even a few months ahead make it impossible for us to put forward a
precise recommendation on the timing.
We think that this grave decision can only be made by the Government
..."
75. The Emergency Provisions Act of 1973, the main subject of the
examination by the Gardiner Committee, was extended by Orders of
17 July 1974, 17 December 1974 and 27 June 1975. On 7 August 1975,
the United Kingdom Parliament, acting on the recommendations of the
Gardiner report, passed the Northern Ireland (Emergency Provisions)
(Amendment) Act 1975 (hereafter abbreviated to the "Emergency
Provisions Amendment Act"). This Act, which came into effect on
21 August 1975, amended the law relating to detention without trial
(see paragraph 90 below), as well as containing further provisions
concerned with criminal proceedings, the maintenance of order and the
detection of crime in Northern Ireland. The Emergency Provisions
Amendment Act is still in force, having twice been continued by
Parliamentary Resolution.
76. No detailed statistics for the year 1975 are before the Court,
although a few figures as to murder charges appear in the Commission's
report. By 19 June, the police had been able to bring criminal
charges against a total of 73 Protestants and 20 Catholics in respect
of 49 sectarian murders.
On 5 December 1975, the Secretary of State for Northern Ireland signed
orders for the release from detention of the last 75 individuals held
under the emergency legislation. Since December 1975, according to
the data before the Court, no person has been held in detention under
the extrajudicial measures in Northern Ireland.
The terrorism and violence in the province have persisted through 1976
until the present day, accounting, for instance, for the murders of
173 persons and injuries to 770 others between 1 January and
28 June 1976.
77. The respondent Government have drawn attention, before both the
Commission and the Court, to the continuous programme of reform
implemented in Northern Ireland since 1969 in order to tackle the
problems of unfair discrimination which had prompted the civil rights
movement. Radical changes have been made in the structure of local
government in the province: universal suffrage was introduced in 1969,
proportional representation in 1972, local government boundaries were
revised in 1973, and many important functions such as education and
housing were transferred to special area boards or to central
government bodies in the hope of ending or reducing the fear of
discrimination in the social field. In 1969, the Northern Ireland
Government established a Parliamentary Commissioner (i.e. Ombudsman)
for Administration and a Commissioner for Complaints. The provisions
of the Northern Ireland Constitution Act of 1973 directed against
discrimination have already been referred to (paragraph 72 above).
The Standing Advisory Commission on Human Rights, set up under the
last-mentioned Act, began in 1975 a detailed study of the extent to
which the existing legislation provides a sufficient protection for
human rights in the six counties. Legislation making discrimination
unlawful in the private sector was introduced in 1976.
II. EXTRAJUDICIAL DEPRIVATION OF LIBERTY
78. During the period under consideration, in addition to the
ordinary criminal law which remained in force and in use, the
authorities had various special powers to combat terrorism in Northern
Ireland. These were all discretionary and underwent modification from
time to time, as is described below; they enabled the authorities to
effect extrajudicial deprivation of liberty falling into the following
three basic categories:
- initial arrest for interrogation;
- detention for further interrogation (originally called "detention"
and subsequently "interim custody");
- preventive detention (originally called "internment" and
subsequently "detention").
79. In accordance with Article 15 para. 3 (art. 15-3) of the Convention,
the United Kingdom Government sent to the Secretary-General of the
Council of Europe, both before and after the original application to
the Commission, six notices of derogation in respect of these powers.
Such notices, of which the first two are not pertinent in the present
case, were dated 27 June 1957, 25 September 1969, 20 August 1971,
23 January 1973, 16 August 1973 and 19 September 1975 and drew
attention to the relevant legislation and modifications thereof.
A. THE SPECIAL POWERS ACT AND REGULATIONS THEREUNDER
80. The Special Powers Act empowered the Minister of Home Affairs for
Northern Ireland, until 30 March 1972, or, thereafter and until
8 August 1973, the Secretary of State for Northern Ireland to take all
such steps and issue all such orders as might be necessary for
preserving peace and maintaining order. It was an enabling Act whose
substantive provisions were contained in Regulations made thereunder.
Before direct rule, either House of Parliament of Northern Ireland
could, at the time Regulations were made, request the Governor to
annul them; subsequently, new Regulations were subject to approval by
the United Kingdom Parliament.
The number and scope of the Regulations in force varied over the
years; they could be brought into use without any legislative act or
proclamation. Those relevant to the present case were made in 1956
(Regulations 11 and 12) and 1957 (Regulation 10). They were utilised
to implement the policy of internment introduced on 9 August 1971 and
advice of their use was given to the Secretary-General by the United
Kingdom Government's notice of derogation of 20 August 1971 (Yearbook
of the Convention, volume 14, page 32). They conferred the four
powers described below.
1. Arrest under Regulation 10
81. Under this Regulation
- any individual could be arrested without warrant and detained for
the purpose of interrogation;
- the arrest could be authorised by any officer of the RUC;
- the officer had to be of the opinion that the arrest should be
effected "for the preservation of the peace and maintenance of order";
- the detention could not exceed forty-eight hours.
Exercise of the power was not conditional on suspicion of an offence
and, following a practice originating in instructions issued to the
military police in May 1970, the individual was not normally informed
of the reason for his arrest. Although looked upon in principle as a
preliminary to detention and internment (see paragraphs 83 and 84
below), arrest sometimes had the object of interrogating a person
about the activities of others. Some arrests, and some subsequent
detention orders, seem to have been made on the basis of inadequate or
inaccurate information.
The individual could not apply for bail (see the judgment of
12 October 1971 delivered by the High Court of Justice in Northern
Ireland in the case of In Re McElduff). Moreover, arrests under this
Regulation could not as a general rule be questioned in the courts but
it was held in the judgment of 18 February 1972 delivered by the
Armagh County Court in the case of Moore v. Shillington and Ministry
of Defence that failure to comply with the proper procedure, including
certain fundamental principles of the common law, invalidated exercise
of the power.
On 8 August 1973 the Emergency Provisions Act (see paragraph 88 below)
repealed Regulation 10. 2,937 persons had been arrested thereunder
prior to 30 March 1972, of whom 1,711 had been released within
forty-eight hours and 1,226 had had their detention prolonged under
other Regulations.
2. Arrest under Regulation 11 (1)
82. Under this Regulation
- any individual could be arrested without warrant;
- the arrest could be effected by any police constable, member of the
forces or person authorised by the "Civil Authority" (i.e. the
Minister of Home Affairs or his delegates);
- the person making the arrest had to suspect the individual of
acting, having acted or being about to act in a manner prejudicial to
the preservation of the peace or maintenance of order or of having
committed an offence against the Regulations;
- the duration of the arrest was unlimited in law but limited in
practice to seventy-two hours.
Arrest under this Regulation could follow arrest under Regulation 10,
giving a total of at most one hundred and twenty hours. The
individual was not normally informed of the reason for his arrest.
Judicial decisions show that review by the courts of the exercise of
this power was limited. They could intervene if there had been bad
faith, absence of a genuine suspicion, improper motive or failure to
comply either with the statutory procedures or with such principles of
the common law as were held not to be excluded by the language of the
Regulation; however, they could not in general enquire into the
reasonableness or fairness of the suspicion or of the decision to
exercise the power (see the McElduff case and the judgment of
11 January 1973 delivered by the High Court of Justice in Northern
Ireland in the case of Kelly v. Faulkner and others).
Under Regulation 11 (4), the individual could apply to the Civil
Authority for release on bail and, if that Authority so directed,
might be conditionally discharged from custody by a magistrate;
however, this right was abolished on 7 November 1972 with the
revocation of Regulation 11 (4) by the Terrorists Order
(see paragraph 85 below).
Regulation 11 (1) was repealed on 8 August 1973 by the Emergency
Provisions Act (see paragraph 88 below).
3. Detention under Regulation 11 (2)
83. Under this Regulation
- any individual arrested under Regulation 11 (1) could be detained in
prison or elsewhere on the conditions directed by the Civil Authority;
- the power to make detention orders was vested in the Civil Authority
and the initiative for them came from the police. The respondent
Government said that they were always made on the personal decision,
before direct rule, of the Prime Minister of Northern Ireland or,
thereafter, of the Secretary of State for Northern Ireland or two
other Ministers;
- detention continued until the individual was discharged by the
Attorney-General or brought before a court. Its duration was unlimited
in law but limited in practice, generally, to twenty-eight days.
The respondent Government said that detention orders were made to
enable the police to complete enquiries. If they had sufficient
evidence to secure a conviction, the individual would be brought
before an ordinary court in which event he was entitled to at least
twenty-four hours' notice of the charge. Alternatively, he might be
released after a limited period or be the subject of an internment
order (see paragraph 84 below).
The detainee had the limited right to apply for bail afforded by
Regulation 11 (4) (see paragraph 82 above). The position concerning
supervision by the courts was the same as under Regulations 10 and
11 (1) (see the McElduff and the Kelly cases) and there was no other
procedure for review of the detention.
More than 1,250 detention orders were made under Regulation 11 (2),
the vast majority before 30 March 1972. Nearly 120 orders were still
in force on 7 November 1972 when the Regulation was revoked by the
Terrorists Order (see paragraph 85 below).
4. Internment under Regulation 12 (1)
84. Under this Regulation
- any individual could by order be subjected to restrictions on
movement or interned;
- the power to make such orders was vested before direct rule in the
Minister of Home Affairs for Northern Ireland on the recommendation of
a senior police officer or of an advisory committee. The respondent
Government said that they were always made on the personal decision of
the Prime Minister of Northern Ireland;
- the Minister had to be satisfied that for securing the preservation
of the peace and the maintenance of order it was expedient that a
person suspected of acting, having acted or being about to act in a
manner prejudicial te peace and order be subjected to such
restrictions or interned;
- the duration of internment was unlimited. In many cases, after
prolongation under later legislation (see paragraphs 85 and 88 below),
it lasted for some years.
Every order had to provide for the consideration by and advisory
committee of representations made by the individual. In fact it
reviewed the position of all internees whether they made
representations or not. The committee, composed of a judge and two
laymen, could recommend, but not order, release.
The individual had no right in law to appear or be legally represented
before the committee, to test the grounds for internment, to examine
witnesses against him or to call his own witnesses. In fact, he was
allowed to appear and be interviewed and every effort was made to
trace witnesses he proposed. The committee required the security
forces to produce the information in their possession but statements
of evidence against the internee so obtained remained anonymous,
apparently to avoid retaliation. According to the Commission, the
committee probably relied on evidence not admissible in a court of
law.
The position concerning the review of internment orders by the courts
was the same as under Regulations 10, 11 (1) and 11 (2) (see the Kelly
case).
796 orders were made under Regulation 12 (1), all before the
introduction of direct rule. Nearly 170 orders were still in force on
7 November 1972 when the Regulation was revoked by the Terrorists
Order (see paragraph 85 below).
By 30 March 1972, 588 of the 796 cases had been reviewed by the
advisory committee (although 451 internees refused to appear)
and 69 releases recommended. Of the 69 individuals all were released
except 6 who refused to give an undertaking as to future good
behaviour.
B. THE TERRORISTS ORDER
85. The Terrorists Order, a temporary measure made under the
Temporary Provisions Act (see paragraph 49 above), introduced an
independent review of decisions on detention for further interrogation
and on preventive detention whereas, previously, such decisions had
been taken by the administrative authority alone. The Order revoked
with effect from 7 November 1972 Special Powers Regulations 11 (2) and
(4) and 12 (1) - but not 10 and 11 (1) - and converted existing
detention or internment orders into interim custody orders (see
paragraph 86 below). The Order defined "terrorism" as "the use of
violence for political ends [including] any use of violence for the
purpose of putting the public or any section of the public in fear".
The Secretary-General of the Council of Europe was advised of the
making of this Order by the United Kingdom Government's notice of
derogation of 23 January 1973 (Yearbook of the Convention, volume 16,
pages 24 and 26). The Order conferred the powers described below and
was repealed by the Emergency Provisions Act on 8 August 1973 (see
paragraph 88 below).
1. Interim custody under Article 4
86. Under this Article
- any individual could by an interim custody order be temporarily
detained;
- the power to make such orders was vested in the Secretary of State
for Northern Ireland;
- the power was exercisable where it appeared to the Secretary of
State that the individual was suspected of having been concerned in
the commission or attempted commission of any act of terrorism or the
organisation of persons for the purpose of terrorism;
- detention was limited to twenty-eight days unless the case was
referred by the Chief Constable - or, as regards persons originally
held under the Special Powers Regulations, by the Secretary of State -
to a commissioner for determination, in which event it could continue
only until such determination.
The individual had to be released after twenty-eight days if his case
had not by then been referred to a commissioner but, in fact, all
cases, including those of persons originally detained or interned
under the Special Powers Regulations, were so referred. During the
order's initial twenty-eight days and during its extension pending the
commissioner's adjudication, which could take up to six months, the
individual had no means under the Terrorists Order of challenging the
lawfulness of his detention.
Figures for interim custody orders appear in paragraph 89 below.
2. Detention under Article 5
87. Under this Article
- where the case of an individual subject to an interim custody order
under Article 4 was referred to a commissioner, he could make a
detention order for that individual's detention;
- the commissioner had first to satisfy himself by enquiry that the
individual had been concerned in the commission or attempted
commission of any act of terrorism or the organisation of persons for
the purpose of terrorism and that his detention was necessary for the
protection of the public. If so satisfied, he had to make an order;
if not, he had to direct the individual's discharge;
- the duration of detention was unlimited. In many cases, after
prolongation under later legislation (see paragraph 88 below), it
lasted for some years.
Unlike the recommendation of the advisory committee under
Regulation 12 (1), a commissioner's decision to release was binding.
The Secretary of State retained independent powers to release
detainees with or without conditions and to recall to detention an
individual conditionally released by him. He could also at any time
refer a detention order case to a commissioner for review; in that
event discharge was obligatory unless the commissioner considered
continued detention necessary for public protection.
Proceedings before a commissioner took place in private. At least
three days before the hearing the individual had to be notified in
writing of the nature of the terrorist activities to be enquired into.
He had the right to legal aid and to be legally represented and had to
be present unless removed on grounds of disorderly conduct or of
security. He could be required to answer questions; he had no right
to examine or have examined witnesses against him but the respondent
Government said that, in practice, cross-examination took place.
The individual had to be informed, as far as possible, of matters
dealt with in his absence for security reasons but had no right to
test evidence given at that time. The commissioner might receive
evidence however obtained and irrespective of whether it would be
admissible in a court of law. This procedure applied, mutatis
mutandis, both to initial references to a commissioner and to later
references for review.
Article 6 of the Terrorists Order introduced a right for the
individual to appeal within twenty-one days against a detention order
to a detention appeal tribunal of at least three members.
Procedurally the individual's position before the tribunal was similar
to his position before a commissioner; however, he was entitled to be
present only when fresh evidence was produced, which was rare as the
tribunal generally relied on the evidence furnished to the
commissioner.
Both commissioners and members of the tribunal had to have experience
of judicial office or at least ten years' experience as a barrister,
advocate or solicitor.
Figures for detention orders appear in paragraph 89 below.
C. THE EMERGENCY PROVISIONS ACT
88. The Emergency Provisions Act, based on the recommendations of the
Diplock Commission (see paragraph 59 above), repealed with effect from
8 August 1973 the Special Powers Act, Regulations 10 and 11 (1) and
the Terrorists Order but maintained in effect - under its own
provisions - the existing interim custody and detention orders.
The emergency powers contained in the new Act were to remain in force
for one year unless renewed for a period not exceeding one year by an
Order of the Secretary of State approved by both United Kingdom Houses
of Parliament; they were in fact renewed for six-monthly periods
commencing on 25 July 1974, 25 January 1975 and 25 July 1975 and then
amended on 21 August 1975 by the Emergency Provisions Amendment Act
(see paragraph 90 below). The Secretary-General of the Council of
Europe was advised of the new legislation, and of the subsequent
renewal and amendment of the emergency powers, by the United Kingdom
Government's notices of derogation of 16 August 1973 (Yearbook of the
Convention, volume 16, pages 26 and 28) and 19 September 1975
(document DH (75) 5, page 5).
The new Act (section 10 (5) and Schedule 1) re-enacted, in substance,
the powers contained in the Terrorists Order, retaining its definition
of terrorism. Accordingly, the powers to make interim custody and
detention orders, and the review thereof by a commissioner and the
appeal tribunal, continued in the manner, on the conditions and
subject to the procedure described in paragraph 86 and 87 above, with
the significant differences that:
- the individual had to receive a written statement concerning the
terrorist activities to be investigated by the commissioner at least
seven (rather than three) days before the hearing;
- in addition to his optional power to refer, the Secretary of State
had to refer to a commissioner the case of anyone held under a
detention order for one year since the making of the order or for
six months since the last review.
Section 10 of the Act also provided that any constable might arrest
without warrant a person whom he suspected of being a terrorist;
detention after arrest was limited to seventy-two hours. The Act
conferred certain other powers of arrest (sections 11 and 12) which
are not in issue in the present case.
89. Figures for interim custody and detention orders (under the
Terrorists Order and the Emergency Provisions Act) are:
- November 1972 to 1 February 1973: 166 interim custody orders (under
the Terrorists Order);
- November 1972 to January 1973: 128 individuals detained under the
Terrorists Order and 94 released;
- November 1972 to 5 September 1973: the commissioners reviewed 579
cases (296 interim custody orders made under the Terrorists Order or
the Emergency Provisions Act; 165 former internments and 118 former
detentions under the Special Powers Regulations); they made 453
detention orders and directed release in the remaining 126 cases;
- November 1972 to 3 October 1973: 44 appeals were lodged with the
detention appeal tribunal; 34 had been heard and 25 releases directed.
D. THE EMERGENCY PROVISIONS AMENDMENT ACT
90. With effect from 21 August 1975, the Emergency Provisions
Amendment Act, based on the recommendations of the Gardiner Committee
(see paragraph 74 above), made, inter alia, new provisions for the
detention of terrorists which have not been the subject of the present
case. The Act reverted to the principle of detention by order of the
Secretary of State, rather than of a commissioner, such order to be
preceded by a report from a legally qualified Adviser.
91. As indicated in the United Kingdom Government's communication of
12 December 1975 to the Secretary-General of the Council of Europe
(Yearbook of the Convention, volume 18, page 18), on 5 December 1975
the Secretary of State signed orders for the release of the
last 75 persons detained under the emergency legislation; all were
released forthwith except those remanded in custody on criminal
charges or serving sentences of imprisonment. Since then, according
to the data before the Court, the power to make detention orders under
the Emergency Provisions Amendment Act has not been exercised.
III. ALLEGATIONS OF ILL-TREATMENT
A. Introduction
92. As recounted above at paragraphs 39 and 41, on 9 August 1971 and
thereafter numerous persons in Northern Ireland were arrested and
taken into custody by the security forces acting in pursuance of the
emergency powers. The persons arrested were interrogated, usually by
members of the RUC, in order to determine whether they should be
interned and/or to compile information about the IRA. In all, about
3,276 persons were processed by the police at various holding centres
from August 1971 until June 1972. The holding centres were replaced
in July 1972 by police offices in Belfast and at Ballykelly Military
Barracks.
93. Allegations of ill-treatment have been made by the applicant
Government in relation both to the initial arrests and to the
subsequent interrogations. The applicant Government submitted written
evidence to the Commission in respect of 228 cases concerning
incidents between 9 August 1971 and 1974.
The procedure followed for the purposes of ascertaining the facts
(Article 28, sub-paragraph (a), of the Convention) (art. 28-a)
was one decided upon by the Commission and accepted by the Parties.
The Commission examined in detail with medical reports and oral
evidence 16 "illustrative" cases selected at its request by the
applicant Government. The Commission considered a further 41 cases
(the so-called "41 cases") on which it had received medical reports
and invited written comments; it referred to the remaining cases.
The nature of the evidence submitted by the two Governments and the
procedure followed by the Commission in its investigation of such
evidence are set out in some detail in the Commission's report. The
Commission came to view that neither the witnesses from the
security forces nor the case-witnesses put forward by the applicant
Government had given accurate and complete accounts of what had
happened. Consequently, where the allegations of ill-treatment were in
dispute, the Commission treated as "the most important objective
evidence" the medical findings which were not contested as such.
The following account of events is based on the information set out in
the Commission's report and in the other documents before the Court.
94. In order to protect the identity of certain persons, notably
witnesses, the published version of the Commission's report (see
paragraph 7 above) incorporated changes to the original text; these
changes mainly took the form of designating such persons by letters
and/or figures.
95. The Commission grouped the cases into five categories, according
to the place where the ill-treatment was said to have been inflicted,
namely:
(1) the unidentified interrogation centre or centres;
(2) Palace Barracks, Holywood;
(3) Girdwood Park Barracks;
(4) Ballykinler Regional Holding Centre; and
(5) various other miscellaneous places.
B. THE UNIDENTIFIED INTERROGATION CENTRE OR CENTRES
96. Twelve persons arrested on 9 August 1971 and two persons arrested
in October 1971 were singled out and taken to one or more unidentified
centres. There, between 11 to 17 August and 11 to 18 October
respectively, they were submitted to a form of "interrogation in
depth" which involved the combined application of five particular
techniques.
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 detainees'
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.
The Commissions's findings as to the manner and effects of the
application of these techniques on two particular case-witnesses are
referred to below at paragraph 104.
97. From the start, it has been conceded by the respondent Government
that the use of the five techniques was authorised at "high level".
Although never committed to writing or authorised in any official
document, the techniques had been orally taught to members of the RUC
by the English Intelligence Centre at a seminar held in April 1971.
98. The two operations of interrogation in depth by means of the five
techniques led to the obtaining of a considerable quantity of
intelligence information, including the identification of 700 members
of both IRA factions and the discovery of individual responsibility
for about 85 previously unexplained criminal incidents.
99. Reports alleging physical brutality and ill-treatment by the
security forces were made public within a few days of Operation
Demetrius (described above at paragraph 39). A committee of enquiry
under the chairmanship of Sir Edmund Compton was appointed by the
United Kingdom Government on 31 August 1971 to investigate such
allegations. Among the 40 cases this Committee examined were 11 cases
of persons subjected to the five techniques in August 1971; its
findings were that interrogation in depth by means of the techniques
constituted physical ill-treatment but not physical brutality as it
understood that term. The Committee's report, adopted on
3 November 1971, was made public, as was a supplemental report of
14 November by Sir Edmund Compton in relation to 3 further cases
occurring in September and October, one of which involved the
techniques.
100. The Compton reports came under considerable criticism in the
United Kingdom. On 16 November 1971, the British Home Secretary
announced that a further Committee had been set up under the
chairmanship of Lord Parker of Waddington to consider "whether, and if
so in what respects, the procedures currently authorised for
interrogation of persons suspected of terrorism and for their custody
while subject to interrogation require amendment".
The Parker report, which was adopted on 31 January 1972, contained a
majority and a minority opinion. The majority report concluded that
the application of the techniques, subject to recommended safeguards
against excessive use, need not be ruled out on moral grounds. On the
other hand, the minority report by Lord Gardiner disagreed that such
interrogation procedures were morally justifiable, even in emergency
terrorist conditions. Both the majority and the minority considered
the methods to be illegal under domestic law, although the majority
confined their view to English law and to "some if not all the
techniques".
101. The Parker report was published on 2 March 1972. On the same
day, the United Kingdom Prime Minister stated in Parliament:
"[The] 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."
He further declared:
"The statement that I have made covers all future circumstances. If a
Government did decide ... that additional techniques were required for
interrogation, then I think that ... they would probably have to come
to the House and ask for the powers to do it."
As foreshadowed in the Prime Minister's statement, directives
expressly prohibiting the use of the techniques, whether singly or in
combination, were then issued to the security forces by the Government
(see paragraph 135 below).
102. At the hearing before the Court on 8 February 1977, the United
Kingdom Attorney-General made the following declaration:
"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 (art. 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."
103. The Irish Government referred to the Commission 8 cases of
persons submitted to the five techniques during interrogation at the
unidentified centre or centres between 11 and 17 August 1971. A
further case, that of T 22, considered in the Commission's report in
the context of Palace Barracks, concerned the use of the five
techniques in October 1971. The Commission examined as illustrative
the cases of T 6 and T 13, which were among the 11 cases investigated
by the Compton Committee.
104. T 6 and T 13 were arrested on 9 August 1971 during Operation
Demetrius. Two days later they were transferred from Magilligan
Regional Holding Centre to an unidentified interrogation centre where
they were medically examined on arrival. Thereafter, with
intermittent periods of respite, they were subjected to the five
techniques during four or possibly five days; neither the Compton or
Parker Committees nor the Commission were able to establish the exact
length of the periods of respite.
The Commission was satisfied that T 6 and T 13 were kept at the wall
for different periods totalling between twenty to thirty hours, but it
did not consider it proved that the enforced stress position had
lasted all the time they were at the wall. It stated in addition that
the required posture caused physical pain and exhaustion. The
Commission noted that, later on during his stay at the interrogation
centre, T 13 was allowed to take his hood off when he was alone in the
room, provided that he turned his face to the wall. It was not found
possible by the Commission to establish for what periods T 6 and
T 13 had been without sleep, or to what extent they were deprived of
nourishment and whether or not they were offered food but refused to
take it.
The Commission found no physical injury to have resulted from the
application of the five techniques as such, but loss of weight by the
two case-witnesses and acute psychiatric symptoms developed by them
during interrogation were recorded in the medical and other evidence.
The Commission, on the material before it, was unable to establish the
exact degree of any psychiatric after-effects produced on T 6 and
T 13, but on the general level it was satisfied that some psychiatric
after-effects in certain of the fourteen persons subjected to the
techniques could not be excluded.
105. T 13 claimed in addition to have been beaten and otherwise
physically ill-treated, but the medical evidence before the
Commission, as the delegates explained at the hearing before the Court
on 21 April 1977, gave reason to doubt that he had been assaulted to
any severe degree, if at all. Accordingly, the Commission treated the
allegations in regard to T 13 as concerning the five techniques only.
T 6 similarly alleged that he was also assaulted in various ways at, or
during transport to and from, the centre. On 17 August 1971 he was
medically examined on leaving the centre and also on his subsequent
arrival at Crumlin Road Prison where he was then detained until
3 May 1972. The medical reports of these examinations and photographs
taken on the same day revealed on T 6's body bruising and contusions
that had not been present on 11 August. While not accepting all
T 6's allegations, the Commission was "satisfied beyond a reasonable
doubt that certain of these injuries ... [were] the result of assaults
committed on him by the security forces at the centre". As a general
inference from the facts established in T 6's case, the Commission also
found it "probable that physical violence was sometimes used in the
forcible application of the five techniques".
106. Although several other cases were referred to before the
Commission by the applicant Government in connection with the
unidentified interrogation centre or centres, no detailed allegations
or findings are set out in the Commission's report except in the case
of T 22 which was one of the "41 cases". The medical evidence
established that when leaving the centre and on entering Crumlin Road
Prison, T 22 had suffered superficial bruising. The Commission's short
assessment of this case, which it described as comparable to the case
of T 6, was that "there exists a strong indication that the course of
events was similar to that found in the illustrative [case]".
107. T 13 and T 6 instituted civil proceedings in 1971 to recover
damages for wrongful imprisonment and assault; their claims were
settled in 1973 and 1975 respectively for £15,000 and £14,000. The
twelve other individuals against whom the five techniques were used
have all received in settlement of their civil claims compensation
ranging from £10,000 to £25,000.
C. PALACE BARRACKS
1. Introduction
108. Palace Barracks, a military camp in Holywood, County Down, on
the outskirts of Belfast, was used as a holding centre for some days
in August 1971 and then from September 1971 until June 1972. During
this period, when it was the main interrogation centre in Northern
Ireland, some 2,000 persons from all over the province passed through
Palace Barracks. The centre was operated jointly by the army and the
RUC. Persons held there were photographed immediately after arriving
and, from November 1971 onwards (see paragraph 133 below), examined by
a doctor on entry as well as departure.
The interrogations - records of which were kept for filing - were
conducted solely by police, usually at least two in number, from the
Special Branch of the RUC. These men, who were independent of the
uniformed RUC, came under the responsibility of an officer in charge
with the rank of inspector. Many of them interrogated prisoners both
at Palace Barracks and at Girdwood Park on a rotating system.
109. A total of 45 cases concerned with Palace Barracks were
submitted to the Commission by the applicant Government. The
Commission examined in detail 9 illustrative cases, all relating to
the period between September and November 1971. It also considered a
further 8 cases, included in the "41 cases"; of these 8 cases,
6 covered the months October to December 1971 while 2 concerned events
occurring in January and May 1972.
2. The illustrative cases
(a) The cases of T 2, T 8, T 12 and T 15
110. These four men were all arrested early on 20 September 1971 at
their homes in County Tyrone and taken to Palace Barracks for
interrogation. They were photographed and examined by an army doctor
immediately after their arrest; apart from one small scar, no injuries
were apparently found. The next day they were transferred together
from Palace Barracks to Crumlin Road Prison. They all alleged that at
various times they had been made to stand spreadeagled against a wall
and had been severely beaten or otherwise physically ill-treated,
particularly during interrogations. On their arrival at Crumlin Road,
a prison doctor found contusions and bruising on three of the men; on
23 September, another doctor found similar injuries on the fourth man.
In the Commission's view, this medical evidence made "it highly
probable that all the four received their injuries while at Palace
Barracks".
Despite the absolute denials given in evidence by witnesses from the
security forces at Palace Barracks, the Commission held the following
facts, amongst others, to be established beyond reasonable doubt:
"The four men ... were severely beaten by members of the security
forces ... The beating was not occasional but it was applied in a
sort of scheme in order to make them speak ..."
Each man instituted civil proceedings for damages and rejected the
offer of £750 made in settlement of his claim.
(b) The cases of T 9 and T 14
111. T 9 and T 14 were arrested together by an army patrol in a
Belfast street on the night of 16 October 1971. They were brought to
Palace Barracks for interrogation and held there until the evening of
18 October when they were transferred to Crumlin Road Prison. On
arrival at the latter institution, they were examined by a prison
doctor. T 14 was immediately transported to the prison hospital wing
where he spent the next three weeks. Both men soon made statements
alleging ill-treatment at Palace Barracks. T 14, for instance, claimed
that he had been made to stand spreadeagled against a wall while being
questioned by a Special Branch man who was kicking him continuously on
the insides of the legs. They obtained legal assistance and were
further medically examined.
The medical evidence disclosed injuries described as "substantial" in
T 9's case and "massive" in T 14's case. The Commission concluded that
"the proved injuries must have been caused while the two men were at
Palace Barracks". Fourteen members of the security forces at the
centre gave evidence completely denying any knowledge of the injuries
or their causes, but these denials were not believed by the
Commission. While viewing certain of the two men's assertions as
exaggerated, invented or improbable, the Commission made the following
finding:
"T 9 and T 14 ... were subjected to physical violence, especially
kicking and beating, during or between a series of 'interviews'
conducted by the Special Branch."
Civil proceedings seeking damages were instituted by T 14 and
T 9; their claims were settled for £2,250 and £1,975 respectively.
They also, it seems, complained to the police, but no evidence was
produced to the Commission of a police enquiry into their complaints.
(c) The cases of T 1 and T 4
112. These two cases, although not directly connected, have certain
similarities and were grouped together by the Commission.
113. T 1 was arrested at his home in the early hours of
20 October 1971 and taken by soldiers to Palace Barracks. He was
questioned several times that day. At about 6.30 p.m. he was released
without being charged. The following morning, he was examined by a
general practitioner who found what he considered to be rather
superficial injuries.
T 1 alleged that he had been kicked and punched while being made to
stand against the wall with his weight on his fingertips. These
allegations were completely denied by witnesses from the police. No
corroborated evidence was produced by either side to confirm or rebut
the suggestion made by police witnesses that T 1 might have received
his injuries after his release while being "questioned" by the IRA.
T 1 did concede having had some previous contacts, albeit superficial
and undesired, with IRA members. The Commission found inter alia:
"It cannot ... be concluded beyond a reasonable doubt that [T 1] ...
received these injuries in the way alleged by him."
Although T 1 said that he had brought a civil action for damages, there
is no information as to the outcome of those proceedings. He further
stated that after complaint to the RUC, he was told that his
allegations had been investigated but found to be unsubstantiated.
114. T 4 was arrested by an army patrol in the street near his home in
the afternoon of 2 November 1971. He was taken by army vehicle first
to a police station, where he stayed for less than an hour, and then
on to Palace Barracks for questioning. He was released the same day.
He alleged that he had been kicked and beaten by soldiers when lying
on the floor of the army vehicle and thereafter beaten during
interrogation by the police at Palace Barracks. Both the army and the
police witnesses denied these allegations.
The day after his release, T 4 saw his family doctor who found
extensive bruising to his body. On 4 November, he was admitted to
hospital where he remained under observation for about two weeks.
The Commission considered that the medical evidence was difficult to
reconcile with the account given by T 4 of his alleged ill-treatment.
The findings of the Commission included the following:
"Bearing in mind that twelve hours elapsed from his release until his
medical examination, the statements of the soldiers and some doubt
about T 4's reliability, it cannot be concluded, solely on T 4's own
statements, that he received these injuries at the hands of the army
or the police."
There is no evidence of any civil action brought by T 4 or of any army
investigation into complaints he apparently made; the results of a
police enquiry are not known.
(d) The case of T 10
115. T 10 was arrested at his house early in the morning of
18 November 1971 and subsequently taken to Palace Barracks for
interrogation. The next day a detention order was served on him and
he was transferred to Crumlin Road Prison. T 10 alleged that while at
the interrogation centre he was subjected to what the Commission terms
"comparatively trivial beatings".
He was medically examined on arrival at Palace Barracks, when entering
Crumlin Road Prison and on 20 November by his family doctor who saw
him in prison. The latter two examinations revealed that T 10 had
suffered a perforation to the right eardrum and some minor bruising.
Despite absolute denials on the part of the five witnesses from the
security forces, the Commission found it proved beyond reasonable
doubt that T 10's injuries could not have been caused in any way
materially different from that described in his evidence. In the
Commission's view, it was to be taken as established that the acts
complained of occurred at Palace Barracks.
T 10 did not, it seems, institute civil proceedings for damages. On
the other hand, he complained through his lawyer against a number of
police officers, but no evidence was produced by the respondent
Government of any real police investigation.
3. The "41 cases"
116. Within this group, there are 8 cases (T 22, T 27, T 28,
T 29, T 30, T 31, T 48 and one other) raising allegations of
ill-treatment by the army during transport to Palace Barracks and by
the police during interrogation there. The case of T 22 had already
been mentioned in connection with the unidentified centre or centres
(see paragraph 106 above).
The medical reports show that the persons concerned had sustained
injuries in varying degrees. No evidence, though, was obtained from
the respondent Government. The Commission, while therefore feeling it
unsafe to make any findings on the basis of the medical reports alone,
stated in its short assessment:
"Nevertheless, in those cases in which the victims were detained
following their interrogation and were medically examined shortly
after their committal to detention (the cases of T 22, T 27,
T 48, T 29, T 30 and T 31), there exists a strong indication that the
course of events was similar to that found in the illustrative cases."
T 27, T 30 and T 31 accepted sums of £900, £200 and £750
respectively in settlement of civil claims brought. At the time of
the Commission's report, actions for damages were still pending in the
cases of T 22 and T 29; a substantial sum was ultimately received by
the former person as a victim of the five techniques (see
paragraph 107 above).
4. The remaining cases
117. In the absence of corroborative, including medical, evidence,
the Commission did not find it possible to examine further another
28 cases concerning Palace Barracks. It merely confirmed that
allegations of ill-treatment had been made and that, in some cases,
compensation had been paid.
5. General
118. The Commission considered on a number of grounds that the police
officers in command at Palace Barracks at the relevant time could not
have been ingnorant of the acts of ill-treatment found to have been
committed. Yet, on their own evidence, these officers took no action
to prevent the occurrence or repetition of such ill-treatment.
Knowledge on the part of the higher authorities of allegations
regarding this centre was inferred by the Commission from various
facts. Nevertheless, no evidence of police investigations into these
allegations was produced to the Commission and,