Torture retold: how the ‘Hooded Men’ case has come back under the spotlight

It was January 31st, 1972, the day after Bloody Sunday. The head of the army department in the British Ministry of Defence, John M Parkin wrote to the Chief of Staff, Northern Ireland, Brigadier Marston Tickell, seeking the facts on more than 100 allegations of torture and inhuman and degrading treatment of internees included in Ireland v United Kingdom, the first full-blown inter-state case under the European Convention on Human Rights, lodged a month earlier by the Irish Government before the European Commission on Human Rights.

“Perhaps I should mention that material needs to be presented with complete frankness and that nothing should be withheld. You may of course take it that this is to permit our lawyers to determine the best line of defence and not for reporting to the Commission”, he wrote. His letter was stamped ‘Confidential’.

“We must provide everything possible to the Attorney General in his defence of our cause. The Security Forces will be on international trial, and we must do everything possible to minimise the risk of losing this battle in the propaganda war.”

That night, the Prime Minister Ted Heath invoked that phrase again with the then serving Lord Chief Justice, John Widgery when commissioning his now infamous Bloody Sunday inquiry. Britain was “fighting not only a military war, but also a propaganda war”, he said. Four days later, on February 4th, 1972, Heath met Lord Widgery’s predecessor, Hubert Parker. Lord Parker was about to submit a Privy Counsellors’ report into interrogation techniques that had led to the torture allegations in Strasbourg, the ‘five techniques’ of sensory deprivation: hooding; ‘white noise’; wall-standing in stress positions; and sleep, food and water deprivation.

Heath had commissioned the report after public outcry and unwelcome scrutiny from Amnesty International over the treatment of, in particular, 14 so-called ‘Hooded Men’, arrested and removed by helicopter to a secret location and for days subjected to the combined use of the techniques. An initial inquiry by a civil servant, Sir Edmund Compton, had been roundly dismissed as a whitewash.

On November 18th, 1971, Heath had privately met Lord Parker to discuss a fresh inquiry. Dismissing Amnesty as “a disreputable organisation” Heath sought a report as soon as possible, as “large numbers of persons on the wanted list were now being detained and it was not possible to foresee how soon the time would come when Ministers had to consider whether they would authorise further interrogation in depth.”

When they met again on February 4th, Lord Parker’s conclusion was that there was no reason to rule out what Britain called ‘interrogation in depth’ on moral grounds and that it was possible to operate the five techniques “in a manner consistent with the highest standards of society”.

There was a problem. In a minority report, the Labour peer Gerald Gardiner had found the techniques illegal. Former Lord Chief Justice Parker told the prime minister that Lord Gardiner, “had taken the purist view that no Government minister could ever give authority for something to be done that was against the law.”

The above quotes, taken from the official documentary record – private British government papers held in the British National Archives in Kew – are a sample of thousands the RTÉ Investigations Unit examined for The Torture Files programme broadcast last week. Some still partially redacted, others revealing themselves from a sea of files released since 2002, like truth dropping slow. Many more unseen, and more still retained beyond their due date.

Together they amount to just what was committed to paper. But the pattern and extent of their revelations amount to a lot: a compelling case that torture was sanctioned by the government of a democratic European state against citizens.

The RTÉ Investigations Unit revealed one document that sums up the case to be answered – a letter from the Home Secretary Merlyn Rees to his Prime Minister James Callaghan on March 31st, 1977 solemnly stating: “It is my view (confirmed by Brian Faulkner before his death) that the decision to use methods of torture in Northern Ireland in 1971/72 was taken by Ministers, in particular Lord Carrington, then Secretary of State for Defence”.

“If at any time methods of torture are used in Northern Ireland contrary to the view of the Government of the day I would agree that individual policemen or soldiers should be prosecuted or disciplined; but in the particular circumstances of 1971/72 a political decision was taken.”

RTÉ Investigations Unit put it to Lord Carrington that he had authorised interrogation techniques later found to be torture by the European Commission on Human Rights. We also put it to him and to the UK government that he had been part of a collective government and inter-departmental attempt to deliberately withhold and fail to disclose relevant information to the Commission that had a direct bearing on matters before it. In a statement, the British government said it did not seek to defend the use of the interrogation techniques but it had not been provided with any evidence to substantiate the allegations made about the way its case was presented to the European Commission of Human Rights. In a letter sent on his behalf, Lord Carrington, now 94, said he had nothing to add to that statement.

At the time of the Rees letter, the government of which Rees and Callaghan were a part was still fighting the torture allegations before the European Court of Human Rights. Rees sent his letter after the attorney general Samuel Silkin held secret talks with his Irish counterpart Declan Costello in London on March 23rd, 1977 at which Costello again pressed the case for prosecution of soldiers and RUC men involved in the interrogations.

In 1976, the European Commission on Human Rights had issued an opinion finding the interrogations were torture and Ireland had then referred the case up to the European Court of Human Rights for a full court judgment. Just a month before the Rees letter, Mr Silkin had told the court that prosecutions against individual soldiers or policemen could not launched due to lack of evidence.

From the start, Ireland had argued that the torture was not just a case of bad apples and nor was the blame for it confined to lower or middle ranks of the army and RUC.

Under Liam Cosgrave’s administration, the arguments of the new Attorney General Declan Costello were persuasive before the Human Rights Commission. After one particularly bad day on October 2nd, 1973, Prime Minister Heath instructed his attorney general to “throw the book at the Irish Attorney General, with brass binding on the corners”.

In December 1973, the Irish government conceded to the Commission that it was not making allegations against individual UK ministers, but it continued to insist the torture was an administrative practice. And from 1974, when Samuel Silkin took over as the UK’s AG, he in turn continued to deny that.

What the archives reveal is a pattern, not just showing that ministers of Heath’s Tory administration sanctioned the use of the torture techniques with the apparent approval of the prime minister himself, but that two successive Labour administrations perpetuated its cover-up.

As early as 1972, Britain knew not only that what it had sanctioned was illegal, but that if the Hooded Men pursued their civil claims, senior ministers could be subpoenaed and made liable to conspiracy charges. To protect them, successive prime ministers personally sanctioned out-of-court settlements, including with some men Britain believed were active members of the IRA.

As an October 1974 memo from the then head of the army department put it: “The basic position remains as it was before. That is, because of the possibility that conspiracy may be proved against those others involved, every effort must be made to continue to prevent the cases coming into court.”

In Europe, Britain declined to call any direct evidence on the use of the five techniques. It instructed its witnesses not to answer any questions about in-depth interrogation. Among the witnesses was the GOC Northern Ireland, General Harry Tuzo, who gave evidence at a special informal hearing in London that Ireland’s representatives were not allowed to attend.

From all that, of course: consequences, consequences. As Prof Robert Daly, the eminent psychiatrist who was an expert witness for the Irish state told RTÉ, all the Hooded Men were already showing signs of lasting psychiatric or physical damage arising out of their ordeal when he examined them at the time. Some developed cancers and other serious illnesses.

Yet, relying on what was then before it, in 1978 the European Court of Human Rights overturned the Commission’s opinion of torture and instead found inhuman and degrading treatment. “A special stigma” was reserved for torture, it said, and the five techniques “did not occasion suffering of the particular intensity and cruelty implied by the word torture”.

The consequences of that went beyond Ireland. First President George W Bush's attorney general's office cited Ireland v UK to allow "an aggressive interpretation as to what amounts to torture" in Afghanistan, Iraq and Guantanamo Bay. Then the UK's armed forces in Iraq ignored the solemn undertaking given by its attorney general to Europe that a ban on the five techniques introduced by Heath would remain in place.

In the UK, determining how far up the chain the decision to use torture methods in Iraq was taken is still the subject of controversy and court action. Again, Britain denies the practice was either systematic, sanctioned or an administrative one. The Ministry of Defence explanation to one public inquiry was that the ban on the five techniques got ‘lost’.

Last month, however, the International Criminal Court at the Hague formally launched a preliminary investigation into a complaint brought by Public Interest Lawyers UK and the Berlin-based European Centre for Constitutional and Human Rights (ECCHR) into alleged torture by UK armed forces of 412 people in Iraq, including use of the techniques. It is the first time the ICC has opened an investigation into a Western state. In Ireland, Attorney General Maire Whelan had, prior to the revelations of last week’s RTÉ programme, rejected earlier approaches to get Ireland to apply to the European Court of Human Rights to revisit its judgment in light of newly discovered facts.

Solicitors for the Hooded Men and the Pat Finucane Centre are now considering their options, including a fresh approach to her. The Department of Foreign Affairs has sought the new material revealed on RTÉ last week.

International law is clear, there is an absolute prohibition on torture. Human rights demand that the consequences of Ireland v UK are not ignored by either Britain or Ireland.

The European Commission on Human Rights and Court of Human Rights records are closed for 75 years. The RTÉ Investigations Unit was declined access. The Pat Finucane Centre, however, found hundreds of documents at the British National Archives, and we found hundreds more. Researchers formerly based at the Irish Centre for Human Rights in NUIG also gave RTÉ access to thousands more records- over 30 gigabytes of raw archive – and we examined 1970s documents released to two of the UK public inquiries into Iraqi torture cases.

Full public access to complete archives, currently topical in the context of Ireland’s past, is vital. In the UK, weeding and retention of archives by government departments has been exposed in recent years, both in the High Court in London and in the media.

Cover up is not containable. The past keeps pouring out.

Rita O'Reilly is a reporter with RTÉ Investigations Unit. The Torture Files is available for worldwide viewing on http://www.rte.ie/news/player/prime-time/2014/0604/