An analysis of an element of the Supreme Court ruling on the “Hooded Men” case last week
Torture happens in the shadows. In general, modern states do not keep their torture records. Since the mid-20th century traditional methods of brutality have been superseded by more sophisticated techniques designed not to leave physical marks on the body but to break the person’s psyche. The then British Empire occupied a central role in this new security-intelligence landscape, refining interrogation techniques through counterinsurgency operations during colonial encounters, and in military training scenarios for service personnel. Secrecy surrounded these operations and torture was hidden from view by euphemistic language.
Declassified files from some former British colonies and Northern Ireland use phrases like “enhanced” or “deep interrogation,” “tactical questioning,” “the third degree,” and specific techniques like “sensory deprivation,” “sleep deprivation” and “stress positions” are mentioned. However, it is highly unusual for the word “torture” to appear in the surviving records though interrogators were well aware of how combined techniques impacted people trapped in situations of utter powerlessness.
Similarly, it would be rare for chain of command authorisation for using such techniques to be preserved in official records. Certainly, from the mid-1970s onwards, and in large part due to Ireland’s inter-state application against the United Kingdom to the European Court of Human Rights focusing on the combined use of 5 techniques, there was growing awareness that torture, inhuman and degrading treatment could not be authorised by a state bound by international human rights law.
Yet Rita O’Reilly, an RTE investigator researching The Torture Files documentary (2014) – discovered a 1977 memorandum written by the then Home Secretary Merlyn Rees (to the UK Prime Minister James Callaghan) that Lord Carrington, who had been Secretary of State for Defence at the relevant time, had authorised “torture.” The Rees memo demonstrated that a UK government minister had sanctioned the combined use of five techniques: wall standing, exposure to white noise, hooding, sleep deprivation, and reduced diet on 14 individuals (the “Hooded Men”) – an operation at the core of the inter-state case in Strasbourg.
Two avenues of legacy work opened as a result of the documentary: the first was an attempt to revisit the 1978 Ireland v United Kingdom judgment, which I have analysed elsewhere. The second was that the Police Service of Northern Ireland (PSNI), under the auspices of the now disbanded Historical Enquiries Team (HET), initiated an investigation into the “Hooded Men” case, sending an officer to the National Archives, Kew Gardens in search of the Rees memo. What happened next triggered a court case brought by a survivor of that operation and the daughter of a man who died prematurely after being exposed to the five techniques for almost a week in an off grid secret detention facility where the “Hooded Men” were held incommunicado in 1971. Last week the Supreme Court issued its judgment on the case (adjoined with a right to life violation – the 1972 shooting of Jean Smyth).
The HET investigator could not locate the Rees memo and neither could he identify any documents that explicitly attributed a “torture” instruction to Lord Carrington or any other government minister (though he did find a document where Rees stated that it was preferable not to refer to the five techniques as torture). The investigator concluded that it was “abundantly clear that the use of torture was never authorised at any level and that there is absolutely no document that suggests it ever was.”[1] Thus, the PSNI terminated their investigation into the “Hooded Men” case in 2014.
When doing my own research into the “Hooded Men” operation (known in intelligence-security circles as Operation Calaba) visiting the very same archives in 2015 and 2018, I pieced together the chain of authorisation for use of the techniques. Knowing that the 5 techniques were euphemistically described as “interrogation in depth” or “deep interrogation,” I found a document which showed that Lord Carrington and the Home Secretary, Reginald Maudling, had advance notice of the planned operation and neither had indicated any dissatisfaction with a situation “designed to heighten the subject’s desire to communicate with his fellow human beings included isolation, fatigue, white sound, and deprivation of sense of place and time.”[2]Representing the Ministry of Defence, Dick White, a Director of Intelligence based in Whitehall, explained the techniques to the Northern Ireland Minister of Home Affairs, Brian Faulkner, on the basis that “Westminster knew of and approved of the proposed interrogation.”[3] What was entirely missing from this process was any audit by politicians or civil servants within the Home Office, the Ministry of Defence, or the Northern Ireland Office as to whether these techniques were in compliance with the UK’s international human rights obligations or indeed domestic law standards.
Last Wednesday the Supreme Court stated that the HET investigation was “defective because it was unreasonably narrow,” and to expect explicit references to torture in the surviving documents is unrealistic. The Court stated, “whether torture was authorised could not on any rational view depend on whether the word “torture” was used.”[4] It also found bias and a lack of fairness in the HET officer’s report and therefore concluded that the decision taken by the PSNI “on the basis of such a seriously flawed report was irrational and should not be allowed to stand.”[5] The PSNI has reopened their inquiry into the “Hooded Men” operation, but given the current climate of the UK government’s proposed unconditional amnesty for conflict related killings and other violations, it’s very difficult to see how families and survivors will be able to access the fullest information about these incidents, let alone secure justice and accountability for what happened.
France has recently committed to putting into the public domain its classified intelligence files from the Algerian war of independence (1954-1962). Much is to be gained by overcoming the fear of facing history.
About the author: Aoife Duffy is an interdisciplinary human rights scholar and co-deputy director of the Human Rights Centre, University of Essex.
[1] In the matter of an application by Margaret McQuillan for Judicial Review (Northern Ireland) (Nos 1, 2 and 3) In the matter of an application by Francis McGuigan for Judicial Review (Northern Ireland) (Nos 1, 2 and 3) In the matter of an application by Mary McKenna for Judicial Review (Northern Ireland) (Nos 1 and 2), [2021] UKSC 55, 15 December 2021, para. 238.
[2] TNA DEFE 23/117: Letter from AP Hockaday titled Authority for Interrogation, dated 9 November 1971 to PS/SoS. JSIW Lieutenant Colonel JR Nicholson later stated before the Compton Committee that “it had been made clear to Ministers that the system was not friendly,” in TNA CJ 4/3757: Compton Committee: Notes of Meetings; Meeting recorded between Colonel Nicholson, Sir Edmund Compton, Dr. Ronald Gibson, Mr. E.S. Fay, QC and Mr. CG Leonard (secretary).
[3] TNA CAB 163/172: Note of a meeting held on 17 November 1971, ‘with the Coordinator in Chair,’ and present were Mr Whitmore (MOD), Brigadier Lewis and BTW Stewart.
[4] [2021] UKSC 55, 15 December 2021, para. 248.
[5] Ibid, para. 251.
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