Ireland v United Kingdom (1979-80) 2 EHRR 25

Ireland v United Kingdom1 is a European Court of Human Rights (ECtHR) principally concerning the threshold at
which 'cruel and unusual treatment' becomes 'torture' for the purposes of Article 3 of the European Convention on
Human Rights (ECHR), and the circumstances in which an Article 15 'derogation in times of war or other public
emergency' permit a valid deviation from the standards imposed by Article 5 (right to liberty and security) and
Article 6 (right to a fair trial).

Background

Before 1922, the island of Ireland was a constituent part of the United Kingdom. 2 By the 1970's, a series of
complicated political events had resulted in the island becoming two separate nations:

 The Irish Republic - an independent sovereign nation-state; and

 Northern Ireland that, at the time the events of this case took place, maintained a separate "Government
and Parliament" under the sovereignty of the United Kingdom. 3

Despite this partition, tensions remained high between Northern Ireland's Protestant and Catholic populations.
This superficially religious divide was further characterised and complicated by deep-rooted, social, and economic
differences between the two communities.4 Politically, the Catholics - who comprise around one third of Northern
Irelands population of 1.5 million - generally supported the idea of a united Ireland. The Protestant community
opposed it, preferring on the whole to remain part of the UK.5

The situation deteriorated from 1970 onwards, as terrorist campaigns orchestrated by Loyalists - Protestants who
supported the union with the UK - and the Irish Republican Army (IRA) - who aimed for a united Ireland - became
more violent and deadly in nature.6 The Northern Ireland Government maintain that the IRA perpetrated the
overwhelming majority of this violence.7 By March 1975, an estimated "1,100 people had been killed, over 11,500
injured and more than £140,000,000 worth or property destroyed" as a result of violence that "found its expression
in part in civil disorders, in part in terrorism perpetrated for political ends." 8

Facts

It was against this background that the Northern Ireland Government introduced Operation Demetrius, 9 which was
a series of "extrajudicial measures of detention and internment of suspected terrorists."10 The principal target of
these measures was suspected members of the IRA, although it is accepted that some people would have been
wrongfully detained on the basis of "inadequate or inaccurate information." 11

One of the more serious interrogation techniques used on fourteen prisoners became known as the "five
techniques."12 This consisted of the following:

1. "Wall standing (forcing detainees to remain in a stress position for hours at a time);
2. Hooding (keeping a bag over detainees heads at all times, except during interrogation);
3. Subjection to continuous loud noise;
4. Deprivation of sleep;
5. Deprivation of food and drink."13

It is probable that "physical violence was sometimes used in the forcible application of the five techniques." 14 One
prisoner spent three weeks in hospital after being subjected to "kicking and beating, during or between a series of
'interviews' conducted by the Special Branch sic."15 At least two detainees would go on to develop "acute psychiatric
symptoms" as a result of their interrogation.16
The respondents (the UK) in this case argued that these measures were necessary because "normal procedures of
law and order had become inadequate to deal with IRA terrorists." Widespread intimidation "made it impossible to
obtain sufficient evidence to secure a criminal conviction against known IRA terrorists in the absence of an
admissible confession or of police or army testimony."17 Large swathes of the Catholic community had become "no-
go" areas for the police and security forces. The international border also posed challenges for law enforcement.
These factors led the respondents to conclude that there was "no hope of winning over the terrorists by political
means."18 As such, these measures were necessary to countenance the threat posed by an IRA, who were engaged
in a "highly organised, politically motivated campaign designed to overthrow the State. 19

ECtHR Proceedings

The Irish government objected to these actions, alleging wide reaching breaches of the ECHR. 20The ECtHR
convened to consider the following points:

 "Whether the treatment of persons in custody .... constituted an administrative practice in breach of Article
3;
 Whether internment without trial and detention .... constituted an administrative practice in breach of
Articles 5 and 6 in connection with Article 15;"
 Whether Operation Demetrius - targeting IRA dissidents - amounted to discrimination on the grounds of
political opinion (which would breach the Article 14 prohibition of discrimination). 21

The ECtHR found that the five techniques caused "intense physical and mental suffering to the persons subjected
thereto and also led to acute psychiatric disturbances during interrogation," but did not necessarily cause actual
bodily injury.22 As such, the Court concluded that the five techniques breached Article 3 as they amounted to
"inhuman and degrading treatment." However, this treatment was not considered serious enough to amount to
"torture," which was reserved for the most serious of breached of Article 3. 23 The Court determined that although
Article 5 might have been breached, the existence of an emergency that would permit a derogation "is perfectly
clear from the facts," concluding that no breach had occurred.24 The Court found that Article 6 overlapped with
Article 5, meaning that no further consideration was required. 25 Finally, as the IRA perpetrated the majority of the
violence, the Court concluded that there was no tacit breach of Article 14. 26

Wider Impact

The ECtHR's distinction between "degrading treatment" and "torture" for the purposes of Article 3 highlights how
torture under international law has a subjective element that evolves over time. This flexibility - and the margin of
appreciation afforded the UK in determining the scope of derogation under Article 15 - has led some academics to
fear a "devaluation of Convention rights and freedoms."27 The ECtHR's conclusion that use of the "five techniques"
did not amount to torture appears to have been cited by the US Attorney General as legal authority that the
interrogation techniques used by the USA in Iraq, Afghanistan and Guantanamo Bay did not amount to torture
under international law.28

However, one could equally argue that as the standards of human rights expected by society grow, the Convention
evolves to reflect them. Indeed, it has been said that if the facts of this case were to be heard today, they "would
now be regarded as torture within the meaning of Article 3 of the Convention." 29 The case was also significant in
establishing a more general principle that the cumulative effect of mistreatment can amount to a breach of Article
3. As the recent decision in Becciev v Moldova 30demonstrates, this can still be the case where individual instances
of mistreatment do not, in isolation, amount to a breach of Article 3.

(OR YOU CAN REFER TO THIS TOO)

Facts

The case centered on the use of ‘interrogation methods’ known as ‘the five techniques’ on individuals
detained without trial by British security forces during the conflict in Northern Ireland in the 1970s.
Whereas the Commission unanimously found that the five techniques amounted to torture under Article 3
ECHR— and indeed, the UK had accepted this finding and did not contest this before the Court— the Court,
nevertheless, over-turned this decision and found that the five techniques amounted to inhuman and
degrading treatment only.

Following the broadcast in June 2014 of a documentary by the Irish state broadcaster which highlighted a
number of documents that had become available in the British Government archives according to the ‘thirty
years rule’; Ireland sought to reopen the case against the UK. Ireland contended that these documents
revealed that that British Government had withheld certain information from the Commission and the
Court that would have altered the outcome of the case. Ireland’s claim was formulated on two grounds:
firstly, that the British Government had information which revealed that the effects of the five techniques
could be substantial, severe and long-term, in contrast with its contention in the original case that the effects
were minor and short-term; and secondly, that the new material revealed that the policy of withholding this
information from the Commission and the Court was authorised at ‘ministerial level’. Consequently,
negative inferences may have been drawn from the UK’s conduct, thus making it easier for Ireland to satisfy
the rather onerous standard of proof ‘beyond reasonable doubt’.

Judgment

It is important to note that, in accordance with the Court’s review procedure, Ireland was not seeking to
produce new evidence of the long-term impact of the five techniques based on data collected up to the
present day. Rather, its claim centred on withheld evidence the UK had in its possession at the time of the
original proceedings. Furthermore, Ireland was not asking the Court to re-appraise the five techniques in
light of the evolving moral standards of today. The Court does not have the power to revise a past judgment
simply because it was wrong; nor does it need to use the revision procedure to do so as was seen in Selmouni
v France, when the Court held that acts in the past that were considered to be inhuman and degrading
treatment could be re-classified as torture in future.

This was the first time that the revision procedure has been used in an inter-state case and it is possible that
this had a profound impact on the majority judgment. The possibility of revising a judgment is not provided
for in the Convention; rather, it was introduced by the Rules of Court. A revision request is considered to
be an exceptional procedure and, as such, subjected to strict scrutiny in order to preserve legal certainty.
The majority found that the new facts upon which the revision is based must ‘by their nature have a decisive
influence’ in order for a judgement to be revised. Ultimately, the majority found that the new documents
did not meet this standard.

In reaching this conclusion, the majority relied heavily on the ‘two illustrative cases’ that the Commission
heard in its initial inquiry. The new evidence contained the assessment of Dr L who observed that one of
the detainees, Mr SK, had suffered serious and long-term side effects as a result of the five techniques. Mr
SK, however, was not one of the ‘two illustrative cases’. Yet when Dr L gave evidence to the Commission, he
contended that there was no evidence of long term serious side effects. The Court stressed that as Mr SK
suffered from a specific serious health condition, the evidence submitted by Dr L in the original hearing
was not prima facie misleading or made in bad faith. The Court further concluded that although it was
unknown to the original Court that the five techniques had been authorised at ministerial level, the original
judgment acknowledged that they were authorised at a ‘high level’. Moreover, the original judgment also
made reference to the fact that the UK had not ‘always afforded [the Court] the assistance desirable’ and
therefore it was difficult to contend that alternative inferences would have been drawn from the UK’s
conduct had the information regarding the five techniques being authorised at ministerial level been known
to the Court.

In light of this, the majority found that the new material would not have had a decisive influence on the
outcome of the case. The majority further stressed that ‘it must be clear from the reasoning contained in
the original judgment that the Court would not have come to a specific conclusion had it been aware of the
true state of facts’. The majority then went on to stress that as the original judgment did not mention the
issue of possible long-term side effects of the five techniques, it was difficult to place any emphasis on the
relevance of the uncertainty of the long-term impact on the Court’s reasoning.