The European Court of Human Rights exercises due deference to Great Britain: Ireland v United Kingdom redux (2018)

The Long Read Series

By Aoife Duffy

Just over 40 years after its famous Ireland v United Kingdom judgment, the European Court of Human Rights ruled on the Irish government’s request to review its 1978 finding that the United Kingdom had committed an Article 3 violation of the European Convention on Human Rights. Article 3 states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The historical context of the original ruling was violent conflict in Northern Ireland; the contemporary context of the revision judgment is intense debate about European institutions and standards following the Brexit referendum. Whereas the European Commission found that the United Kingdom’s combined use of five techniques – hooding, wall standing, exposure to white noise, reduced diet and sleep deprivation – amounted to torture, the European Court categorised the system of interrogation not as torture, but inhuman and degrading treatment. In 2014, the Irish government submitted a revision request under the Rules of the Court on the basis of fresh evidence – a dossier of declassified files released under the 30 year rule that seemed to corroborate the Commission’s finding of torture. In short, the Irish government argued that had these facts been known at the time, the European Court would not have diverged from the Commission’s finding of torture. This post will demonstrate that the revision judgment was settled along weak procedural lines, which can easily be picked apart by reference to the declassified files that triggered the revision request. In addition, it will question the utility of situating history making in this type of legal forum.

Having first found the matter to be admissible under Rule 80, which permits a review of an earlier judgment should new information comes to light, the Court examined the new documentation under the rubric of two interrelated categories of consideration: the medical evidence limb and the non-disclosure limb. Regarding the medical evidence, the Irish government relied on the fact that reports prepared by Dr. Denis Leigh, a consultant psychiatrist commissioned by the UK government in relation to civil litigation proceedings, had been suppressed, and that the evidence he gave to the Commission was at variance with his own contemporaneous findings. Critically, in his testimony Dr. Leigh denied that the combined use of the techniques had any long term after effects on fourteen individuals – the “hooded men.” On the basis of conflicting medical evidence, and, in particular, disagreement between Dr. Leigh and the Irish government’s medical experts, Professors Baastians and Daly, the European Commission was unable to “to establish the exact degree of the psychiatric after-effects which the use of the five techniques might have had on these witnesses or generally on persons subjected to them,” but was satisfied that some after effects could not be excluded and that these effects could continue in some individuals for a period of time. On the evidence presented, the Commission was unable to precisely determine the nature and extent of the after-effects in the two illustrative cases, chosen for procedural economy as representing the group of men subjected to the techniques.

Medical Evidence Limb

At least since the Egmez v Cyprus European Court ruling in 2000, the long term effects of specific acts have been relevant to their characterisation as torture. Iulia Padeau argues that while the new evidence presented points to the long term effects of the techniques, the old Court set the threshold to torture primarily by reference to severity and intensity. The revision judgment claims that the original judgment “does not mention the issue of possible long-term effects of the use of the five techniques in its legal assessment.” However, the “mental and physical effects of the treatment” alongside other factors (such as sex, age and the health status of the individual) were central to its initial determination as to whether ill-treatment was severe enough to fall within the scope of Article 3. Thereafter, the relevant paragraph that deals with intensity commences with the assumption that these effects were short lived: that the five techniques when applied in combination resulted in “intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation.” Had the 1978 Court access to these medical reports it most likely would have undermined the assumption upon which the view regarding “intensity of suffering” was formed. A different premise probably would have had a decisive influence as to where to situate the systematic application of these techniques on the Article 3 map. In the end, the modern Court was not persuaded that had the long term psychiatric effects been known at the time, “this one element would have led the Court to conclude that the practice amounted to torture.” Yet, the 1970s Court would not have drawn this conclusion on the basis of one strand of evidence alone, but would have weighed it against other factors, such as sex, age, and health status, in consideration of the intensity and severity of the treatment.

In the revision judgment, the Court was dismissive of medical evidence pertaining to William Shannon, Brian Turley and Sean McKenna, as these were not the two illustrative cases (that of PJ McClean and Patrick Shivers) considered originally. Thus, the majority of the “hooded men” are ignored in the contemporary review of the fresh evidence. In her dissenting opinion to the 2018 judgment, Justice Siofra O’Leary argues that on this point the revision judgment diverges too significantly from the original judgment, which found an Article 3 violation in respect of all 14 “hooded men” rather than just the illustrative cases. To put it bluntly, Dr. Leigh’s medical report on Sean McKenna (a non-illustrative case) irrefutably establishes a connection between his experience of interrogation and the persistent and severe psychiatric and physical symptoms McKenna experienced right up until his untimely death in June 1975. Dr. Leigh examined McKenna only days before his sudden death from cardiac arrest when he noted that McKenna’s heart complaint had increased in intensity. The revision judgment disregards Dr. Leigh’s report on McKenna because it was dated after Dr. Leigh’s appearances before the Commission in June 1974 and January 1975. However, in the medical report Dr. Leigh quoted in the judgment clearly states that he had previously examined McKenna. That examination occurred approximately a year previously, around the time of Dr. Leigh’s first Commission appearance, and certainly several months before his second appearance in January 1975. The second technical point of exclusion, as mentioned above, was that McKenna was not one of the two illustrative cases about which Dr. Leigh was asked his medical opinion by the European Commission.

So if the focus must narrow to only the two original illustrative cases, why then were Dr. Leigh’s reports on Patrick Shivers and PJ McClean not considered relevant as to whether Dr. Leigh had misled the European Commission? Perhaps this information was not included in Irish government’s new evidence, but several files available at The National Archives, Kew Gardens contain medical reports on Shivers and McClean. Dr. Leigh acknowledged a medical examination conducted by Dr. Pearse O’Malley on 1 September 1971 which reported that Shivers continued to suffer from “general nervousness, nightmares, irritability, fatigue and poor concentration.” Fresh medical evidence was later produced which led Dr Leigh to conclude, “Shivers’ existing condition and prognosis is worse than had been supposed.” Dr. Leigh re-examined Shivers on 10 December 1973 and noted that Shivers’ facial tic was “much more marked than previously.” Dr. Leigh found Shivers to be in no way “exaggerating or malingering,” and advised the government to settle the case promptly so as to positively impact on Shivers’ health. Like Sean McKenna, Patrick Shivers died prematurely, of stomach cancer aged only 54.

Dr Leigh also looked at the medical evidence in respect of PJ McClean (the second illustrative case). He refers to Dr. Pearse O’Malley’s examination of McClean in which McClean was found to have been “irritable, sleeping badly and worrying about his health” following his release from detention. It seems that McClean did not experience the same acute psychiatric disturbances as several of the other “hooded men,” and the report concludes that “Mr. McClean is a tough and resilient person mentally and seems to have weathered the interrogation very well… He has been living under the strain in the conditions existing in Northern Ireland to-day and this must play a part in the maintenance of his present minor psychiatric symptoms.”

Beyond these two cases, Dr. Leigh made more general observations about the “hooded men” he examined. He had privileged access and examined at least five of the men, and several (such as Sean McKenna, Patrick Shivers, and Brian Turley) on more than one occasion.  According to Dr. Leigh “all of them [the “hooded men”] continue to suffer from psychiatric symptoms of varying degrees,” and he submitted that a judge would award “damages for the continuing psychiatric sequelae.” In light of these facts, Dr Leigh concluded that the plaintiffs would receive significant damages for deep interrogation due to the continuing psychiatric symptoms should the matter go to trial. The medical reports date from 1973 to 1975 and thus are contemporaneous to the European Commission proceedings, while predating the Court’s deliberations. It is absolutely clear from this body of evidence that Dr. Leigh was dealing with a spectrum of after effects in the interrogatees – from severe at one end (Sean McKenna, Patrick Shivers) to milder at the other end (PJ McClean, Michael Montgomery). The persistence of psychosomatic symptoms was the baseline or common denominator amongst the men (yet refuted by Dr. Leigh in his testimony to the Commission), with the severity or intensity of these symptoms dependent on several factors (such as the subject’s pre-existing health status, psychiatric predispositions, age, and experience etc.).

Non-Disclosure Limb

To utilise a narrow lens regarding the Commission hearing dates as the relevant temporal cut off for the disclosure of medical evidence is unduly restrictive, because the proceedings lasted from 1971 until 1978, and this is the timeline against which the new evidence should have been considered. The documents submitted by the Irish government in support of the non-disclosure limb were largely overlooked by the 2018 Court. However, the levels of suppression and denial detailed in the judgment (and in the declassified files) are really quite astonishing. In his separate opinion to the original decision, Justice Evrigenis identified the “absolute wall of silence” erected by the respondent government as relevant to the final judgment. To ignore this in a request for review that hinges on the idea of high level authorisation for the operation and a subsequent cover up of that fact, misses the heart of the matter. That is to say, the obfuscation strategy – the suppression of specific documents and individual identities associated with the operation, concealing the location of the Centre, the failure to produce security force witnesses involved in the operation and tightly scripted statements for those who did appear before the European Commission – this was happening to avoid an adverse finding by the Court which would detail precisely how the UK government had authorised torture at the highest level.

The cursory treatment of the declassified files, stating that the documents “do not demonstrate facts that were ‘unknown’ to the Court when the original judgment was delivered,” is problematic because the specific chain of events that led to this operation and the subsequent efforts to shield individuals from liability simply was not known at the time, and the degree of cover-up has only become evident since the declassification, identification and interpretation of the relevant documents from the early-2010s onwards. It should be noted that the Commission had found that where a practice is under scrutiny, the level of authorisation is relevant, and “[t]he higher the body authorising or tolerating the acts, the more serious the violation.” The fresh evidence actually pinpoints responsibility to individuals within the political establishment and the security forces, and demonstrates that the UK government’s acceptance that the operation was authorised at a high level was designed to obviate a more thoroughgoing inquiry.

Justice O’Leary maintains that the duty of disclosure is essential to the rules and the jurisprudence of the European Court on Human Rights. She illustrates several cases where non-disclosure has been central to revision requests. State parties are duty bound under Article 38 of the European Convention (previously Article 28) to cooperate with Convention institutions. Whilst the European Commission utilised a high standard of proof (beyond a reasonable doubt), the original Court judgment added the caveat that “the conduct of the Parties when evidence is being obtained has to be taken into account.” Thus, inferences on the nature of the allegations, even in terms of severity or intensity, could have been drawn had the extent to which the UK government’s obstructionist tactics been known. If the relevance of the substantive matter contained in the suppressed documents and the systematic patterns and attitude of the respondent government to the disclosure of these same documents can so readily be discounted, this will give succour to other regimes that have covered up internal information about the known severity and lasting consequences of dubious interrogation methods or similar abuses.

The majority have ruled that where doubts remain as to whether the new evidence would have influenced a certain outcome, legal certainty must prevail. Taking a different standpoint, Justice O’Leary asks where this standard of absolute certainty originated. In her estimation, probability is the relevant threshold for a successful review under Rule 80, so the job of the modern Court was to put themselves in the shoes of their predecessors and ask “might or would a majority of the Court have confirmed the Commission’s unanimous decision and found a practice of torture had they known what the Court knows today?” In the end, it raises the question of whether this was a genuine effort by the Court to protect the principle of legal certainty, or a manifestation of judicial conservatism that is highly sensitive to the political maelstrom of a post-Brexit landscape, seeking not to further alienate the UK from European mechanisms and bodies such as the European Court of Human Rights. There are some indications of a referral to the Grand Chamber, but one has to wonder about the utility of asking justices to adopt the kind of exhaustive and rigorous approach to historical archives needed to piece together a viable historiography of events. Even where the European Convention has temporal jurisdiction, should we be asking its judges to become legal historians?

Disclaimer: The views expressed herein are the author(s) alone

Image: Cover of exposé on the internment torture machine published by Northern Aid with the Association for Legal Justice


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