It is important to note that even under the draconian Special Powers Act the initial arrests in 1971 were illegal, as is demonstrated by the McElduff case. James McElduff was arrested at 4.30 a.m. on 9 August 1971 at his home in Merchantstown, County Tyrone. He was one of 342 people arrested that morning by the army as part of the internment sweep, and, like the others, he was improperly arrested. Subsequently he was improperly arrested a second time and, on foot of that invalid arrest detained illegally for a period of two months before his application to the High Court in Belfast on 12 October. The illegalities stemmed from the misapplication by the security forces of the several powers of arrest provided under the Special Powers Act which were integral to the whole detention operation.
There are at least three powers of arrest under the Special Powers Act, which in this application Mr. Justice McGonigal held to be quite separate powers of arrest, authorising detention on different grounds and leading to different consequences.
In the body of the Act, section 7 provides the arrest power for crimes and offences against the Act itself. Regulation 10 provides a power of arrest for the purpose of interrogation, regulation 11 (1) a power of arrest for an indefinite time on suspicion of subversive acts or intentions, and regulation 11 (2) provides for custody under 11 (1) to be converted into preventative detention by means of a detention order.
The internment operation of August 1971 involved initially the utilisation of regulations 10 and 11. The operation was conceived of as a sequence. First, pursuant to an authorisation from the Chief Constable of the RUC, Shillington, given under regulation 10, units of the army arrested persons, including McElduff, for the purpose of interrogation. Those arrested were brought to various holding centres, (in McElduff's case, Magilligan camp) where interrogation by RUC detectives took place. This was followed in the majority of cases by the making of detention orders and the transfer of the men to detention centres – either Crumlin Road jail or HMS Maidstone, (with the notable exception of the 11 hooded men in whose cases Brian Faulkner signed removal orders after which the men were taken to various places, including Palace barracks, Holywood, and tortured). The detention orders were then subsequently converted into internment orders under section 12 of the Special Powers Act.
The simple issue of fact in the McElduff case was whether, following his arrest under regulation 10 and his conveyance to Magilligan he was arrested again, this time under regulation 11 (1), a step argued to be necessary if his detention under regulation 11(2) was to be valid. This was not the first application for habeas corpus by McElduff. Together with Sean Keenan he had applied to the English High Court for a writ, in the hope that if successful they would have had to be taken to England and there freed since the Special Powers Act had no power there. Embarrassed, Vacation judge Ackner passed the whole matter onto the Court of Appeal who found that, the Government of Ireland Act notwithstanding, the English High Court had no powers of jurisdiction over habeas corpus in N. Ireland. Thus making a mockery of the entire 1920 Act and leading some people to believe that some form of Craigite UDI had already been declared.
Back in Belfast, however, McElduff was successful in his application in the High Court before Mr. Justice McGonigal, who found that it was not enough for a policeman or an army officer to say to a man 'I arrest you under the Special Powers Act'. In McElduff's case it was a somewhat pyrrhic victory. Released on a writ of habeas corpus he was, like so many others, rearrested as he left the court and interned in Long Kesh, yet again demonstrating the RUC Special Branch's scant regard for due process of law.
Nonetheless, the case did pave the way for some interesting developments. In an action in the High Court McElduff received £900 for false imprisonment and loss of wages and immediately a flood of claims followed. By December 1972 over 300 claims were pending. The British taxpayer may yet rue the fact that soldiers and policemen have in the past felt that all that was needed to effect an arrest was brute force and a few obscenities. High Court judges prefer that the accused be at least informed under what regulation or law he is being seized.
Footnotes Appendix 2:
|1.||Arguably regulation 12, authorising various restrictions on movement including 'house-arrest' and internment provides further powers of arrest.|
|2.||A former regulation, providing for detention for purposes of interrogation made it an offence to refuse to answer any questions whether incriminating or not (regulation 22b, revoked by S.R. & O. (N.I.) 1949, No.147). A similar provision is still in use today in the Republic. Since August 1971, the interrogation of persons under this regulation has, in theory, been guided by the Joint Directive on Military Interrogation in Internal Security Operations Overseas. The procedures authorised by this directive were withdrawn in March 1972, following the publication of the Report of the Committee of Privy Councillors Appointed to Consider Authorised Procedures for the Interrogation of Persons Suspected of Terrorism (1972: Cmnd. 4901).|
|3.||For the full legal arguments see the N. Ireland Legal Quarterly Vol.23. No.3. I am indebted to Kevin Boyle for permission to use his draft manuscript for this appendix.|
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The Detention of Terrorists (N.I.) Order came into operation on 7 November 1972. It had already been foreshadowed in a statement to the House of Commons on 21 September and produced no real surprises. Three commissioners were named and commenced work that week, their first task being to announce the names of the first 43 internees and detainees whom they wished to try.
It was clear from the terms of reference that little if anything had changed. Men were no longer 'interned', merely 'detained' – indefinitely. Under Section 4 (1) of the Order the Secretary of State or one of his ministers could make an 'interim custody order' for the detention of a person "suspected of having been concerned in the commission or attempted commission of any act of terrorism or in the direction, organization or training of persons for the purpose of terrorism". Under Section 4 (3) the detention period was limited to 28 days and then the suspect had to he examined by one of the commissioners, who, under Section 5 (3) then had the power to detain indefinitely, having informed the detainee why he had. taken this step. Section 6 allowed for an appeal – which the authorities knew full well would be unlikely to be forthcoming since Republicans in the main would refuse to recognise the Commission let alone the appeal tribunal. This was provided for by statutory periods of imprisonment for "contempt of court".
Evidence that there was still no real separation between the Executive and the Judiciary came in Section 9 which provided the Secretary of State with the power to overrule the commissioners in order to release or detain a suspect. Further pro-visions permitted up to five-year sentences for any detainees who escaped and were recaptured – obviously the exploits of the 'Magnificent 7' and the 'Crumlin Kangaroos' still rankled – and similar penalties for anyone harbouring "any person requested to be detained".
But it was the 'trial' process which showed how little had really changed. Juries were out. Detainees would be told three days in advance – a ludicrously inadequate period of time to find witnesses or prepare a defence – of the nature of the 'evidence' against them and were permitted legal representation, but the evidence of the prosecution could be heard in camera and Branch men could have private chats with the commissioners. Rules of law had been almost totally abandoned – for example, alleged confessions which were the result of torture or 'ill-treatment' at Palace barracks or Girdwood Park or indeed the more recent centres at Springfield Road, and Castlereagh Road barracks in Belfast or the more notorious police holding centre at Enniskillen were not necessarily to he ruled invalid as the Northern Ireland courts had done.
Clearly the 'evidence' against the 284 men interned/detained (the figure on 7 November when the Commission began its work) was slight or they would have been tried normally in the courts, for the hoary old fable of the inability of the courts to obtain convictions because of intimidation had been given the lie by the government itself when it revealed that between January and October in 1972, during the height of the bombing campaign, there had been no fewer than 330 prosecutions for murder, attempted murder, explosions, possession of firearms and riotous behaviour, resulting in 117 convictions, 33 acquittals, 29 withdrawn charges, and 97 cases pending. Many of the convicted were self-confessed IRA men and UVF men. Whitelaw's claim that he had not interned anyone during direct rule was also looking rather feeble too by November with 103 men detained, including 28 internees who had been released in July and redetained within months.
Reaction to the courts was predictable. Prisoners refused to recognise them. The Association for Legal Justice called it "detention with a caricature of a trial". "The waiving of the normal rules of evidence demonstrated that the real purpose of the special courts is to allow dubious evidence from tainted or hostile sources to be given in secret and prevent the accused of rebutting it," they said. The National Council for Civil Liberties, based in London, said that they were "appalled" and accused Whitelaw of keeping the worst aspects of the Special Powers Acts. The Civil Rights Association condemned them also and pointed out the new 'Comptonese' language employed – thus former internees became 'respondents' who were "subjects of a reference" i.e. held without charge or trial a further four weeks. Paddy Devlin and Ivan Cooper of the SDLP denounced the courts too, while in the Twenty-six Counties Jack Lynch, who already had his secret and special courts, kept remarkably quiet. The People's Democracy and the Northern Resistance movement organised yet another march.
None of this made the slightest difference. On 10 November the first eight men appeared before the commissioners. That night two of them – Patrick Joseph Smyth and Patrick Joseph Largy, both from Belfast – were released. They had been held since 9 August 1971 – fifteen months, for nothing.
Some idea of the courts can be judged from the 'charges' presented to the internees three days before the 'trial'. For example, one man was accused of "being suspected of being responsible for robbing a post office-in 1943! Another was accused of causing 650(!) explosions in a six-month period. Of another it was alleged that "in or about 1966 you were adjutant of an IRA unit in Belfast and therefore it is said that you were concerned in the direction and organization of persons for the purpose of terrorism". In 1966 there was not one single recorded instance of 'IRA terrorism'.
Billy Reid (27) from Belfast was charged with "being an IRA man" and with having had guns, ammunition, maps, masks and 'disguise coats' in his house. None of these was produced. Instead, a voice from behind a red curtain claimed to have seen Reid "in a house where arms had been stored". Harry Taylor, of the Special Branch, then appeared and said that Reid's home in Little Distillery Street "had been under observation for some time". When it was pointed out that Reid did not live in that street, Taylor commented "I don't know why he has been arrested at all." Neither did the Commissioner, who released him at once. Nonetheless, he had served 16 months. Another voice from behind the curtain, when queried by a Commissioner about a charge, replied: "I know nothing about this charge; I am only reading it off the sheet." On such hearsay nearly 300 men rotted for another winter in Long Kesh, waiting for the Diplock Commission to report how opponents of the system could be effectively dealt with without the embarrassing word 'internment' actually being used.
(That many men were merely hostages is easily seen from the release figures given by the commissioners. By 13 December 1972, of the first 141 men 'examined' 55, or 40%, were released "without a stain on their character" and 16 months missing from their lives).
Footnotes Appendix 3:
|1.||Judge James Leonard (England), Sir Ian Lewis (Nigerian colonial service) and Sheriff John Dick (Scotland). The sprightly 73-year-old Sir Gordon Wilmer, a former Lord Justice of Appeal, was appointed to take charge of a Detention Appeals Tribunal.|
|2.||For example, Peter O'Reilly (21) of Belfast was interned in September 1971. After 15 months in Long Kesh he appeared before a commissioner, who, after hearing the 'evidence' against him ordered his release. His family were notified and began to prepare a welcome-home party. After being served his release papers O'Reilly was waiting for transport from the camp when he was rearrested by two Special Branch men and 'redetained' in Cage 9. So much for the authority of the commissioners.|
|3.||The members of the commission, which started its work on 20 October 1972 and handed its report over to the Government six weeks later, were Lord Diplock, Professor Rupert Cross, Sir Ken Younger and the trade unionist George Woodcock. None of them had even rudimentary legal training apart from the chairman, Diplock himself.|
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ON 20 December 1972 the findings of the Diplock Commission were announced and accepted immediately by Whitelaw on behalf of the Conservative government. In essence they 'recommended':
|(1)||A continuation of internment. For the sake of international reaction it should be renamed 'detention', just as internees should he referred to as 'suspected terrorists'. It still meant indefinite imprisonment in a camp – or 'centre' as these were now to be known.|
|(2)||No jury trials for political prisoners or suspected 'terrorists', ostensibly because of possible intimidation. In future, one judge would suffice to determine a man's fate.|
|(3)||When the judge felt so inclined the 'onus of proof' would be shifted from the prosecution to the accused. Henceforth, those accused of membership of an illegal organisation or of being in the vicinity of explosives or weapons discovered by the security forces would have to prove their innocence. They were to be considered guilty until proved innocent, a fundamental breach of British law.|
|(4)||In future, the courts should continue to accept the 'evidence' of unnamed, and, in many cases, absent Special Branch men or paid touts and informers. The accused should not be permitted to cross-examine these 'witnesses' lest he recognise his accusers. Moreover 'confessions' allegedly made by the accused alter intensive 'interrogation' should not be thrown out of court as had been done by several judges during late 1972. Thus were the torturers encouraged yet again.|
|(5)||In addition Diplock recommended what he referred to, some-what strangely, as "increased powers of detention for soldiers". From now on they would be able to detain people for four hours to confirm their identity. Since for two years troops had been detaining and 'screening' people for up to 24 hours this 'new power' seemed to most people to he in fact a restriction on the army, were it ever actually adhered to.|
|(6)||A speeded-up programme of prison building with special provisions for juveniles – felt to be necessary since over twenty juveniles on arms and explosives charges had absconded effortlessly from the juvenile remand centres.|
It is doubtful if the British Government really expected anything more than a publicity exercise out of the Diplock Commission. It is even more doubtful if Diplock will make the slightest difference to the complex situation that is Ireland today. The simple message that should have been learnt by all in the past fifty years is that repressive legislation like the Special Powers Acts and the various Offences against the State Acts solve nothing. And neither, as should be patently obvious to all by now, does internment. Depressingly, the Detention of Terrorists Act, the Offences against the State Amendment Act and the Diplock Commission show that the powers that control Ireland, both North and South, today have not as yet learnt this simple lesson.
Diplock did at least admit that the scale of initial arrests in August 1971 "led to the arrest and detention of a number of persons against whom suspicion was founded on inadequate and inaccurate information". This was a direct slap in the face for Brian Faulkner. From Direct Rule to October 1972 Whitelaw ordered the release of 561 internees and 174 detainees and subsequently the Commissioners let out a further 63.
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The Compton Report stated that detainees in Ulster had been subject to a particular procedure – wall-standing (standing spread-eagle against a wall), hooding, masking noise, bread-and-water diet and sleep deprivation. It considered each of these to be physical ill-treatment, a term it never defined. The Report did not explain why they should be so considered, nor what their purpose was. We believe that a consideration of the effects of the procedure will show that the value-judgement implied in the Report's attempt to distinguish between ill-treatment and brutality is not viable.
The history of certain aspects of this procedure is widely known. The techniques resemble those used by the KGB in Russia for interrogation purposes. The prisoner there was arrested and taken to the detention prison, where he underwent an introductory routine which included removal of all clothes and possessions, this all occurring with no explanation. He was then placed in solitary confinement in a featureless room for an indefinite period, totally isolated from human contact except during interrogation. He had to sit or stand in a fixed position all day, was allowed to attempt to sleep only at certain times and always in a fixed position facing light. Any deviation from this regimen was punished. Throughout he was fed on an inadequate diet.
Obviously there are certain common elements between this and the Ulster procedure. However, the hooding and the noise were not part of the Russian procedure. They appear to have been developed from a line of research initiated in the early 1950s – sensory deprivation. This research began partially in an attempt to understand brain-washing, but was also being used by the Canadian psychologist, Hebb, in the development of a theory that there exists an optimum level of arousal for cognition, a theory stimulated by Moruzzi and Magoun's work on the reticular formation. The first sensory deprivation experiments were conducted in Hebb's laboratory in Montreal. They involved student volunteers who lay on a comfortable bed wearing translucent goggles that admitted only diffuse light and cuffs which reduced tactile stimuli. They were in a partially soundproofed cubicle, and a masking noise drowned any noises which had not been completely blocked by the sound-proofing. Despite being paid twenty dollars a day few were willing to remain more than two or three days even though they slept for a considerable portion of the time. They became very bored, desperate for any kind of stimulation, could not concentrate and hallucinated. What was generally anticipated to be a handsomely-paid rest turned out to be extremely unpleasant.
Since the original study, a very large number have been performed in the USA principally sponsored by Defence Department agencies, ostensibly because of the increasing number of restricted and monotonous environments in which military personnel now operate such as in space vehicles, submarines and polar stations. In contrast we know of very few published English studies, which suggests that psychologists in England have in general found insufficient theoretical interest in the procedure to warrant the ethical difficulties involved.
The studies have used various methods of producing sensory isolation. In the most extreme studies subjects were suspended in a tepid bath of water wearing nothing but a breathing mask which also covered eyes and ears. In this environment only ten per cent of subjects were able to last more than ten hours (Shurley 1966). Such an experimental situation is expensive to construct and so more typically a totally darkened room is used either sound-proofed or with a white-noise source masking extraneous sounds. Clearly such an environment is very similar to the 'noise' and 'hood' of the Ulster procedure.
Schultz in a review written in 1965 listed fifteen studies concerned with the affective changes produced by sensory deprivation. For example in a study by Smith and Lewty (1959) twenty subjects volunteered to undergo the normal treatment for as long as they could stand it. The average endurance-time for men was 29 hours compared with the maximum of 43 hours reported by Compton. The authors reported that all subjects experienced anxiety and frequent panic attacks either early in the session or more commonly shortly before they gave up. Those who terminated early gave unbearable anxiety, tension and panic attacks as their reason for leaving. Nightmares involving suffocation, drowning and killing people were reported by five.
There are various ways of increasing the affective consequences of the situation. One is to restrict the subjects' movements. This can be so powerful that even with a monotonous, but not totally deprived, sensory environment psychotic-like effects can occur. Thus Leidermann and his team (1938) noted such symptoms with confinement to an iron lung or with restriction of body movement due to complex traction. The symptoms only responded when the sensory and social environment were improved. In the Ulster situation, the spread-eagle position at the wall serves this function, as well as being a physical torture. Subjects in sensory deprivation experiments normally reduce its effects on them by sleeping extensively; this is prevented in Ulster.
Of great relevance in the Ulster situation is that psychological variables interact with the physiological ones in intensifying sensory deprivation effects. Ignorance of termination time, for instance, was sufficient to produce confusional states and fears of insanity in only a two-hour deprivation period in one experiment. Solitary confinement can produce many similar effects to that of sensory deprivation. Moreover endurance in the typical situation seems strongly related to personality dimensions such as neuroticism, neurotics being less able to stand the situations. Clearly for the detainees the psychological pressures must have been enormous. Sudden arrest in the middle of the night, being physically beaten and dreading what the future might hold can be expected to interact traumatically with the sensory deprivation situation. This could be expected also to increase greatly the pliability of the detainees under interrogation, as sensory deprivation increases the suggestibility and lowers intellectual competence. (These latter phenomena may be related to its progressive slowing of EEG frequencies in the alpha range (Zubek, 1969)). However, greater pliability and suggestibility do not produce more accurate information.
The Ulster methods have much in common with methods used by the KGB (see Hinkle and Wolff, 1956). The period of confinement is much shorter but the isolation techniques are more powerful, solitary confinement being superceded by the 'hood'. The scars left by Communist methods on the personalities of their prisoners have become well known in the West (e.g. Sargant, 1957), although the best documented are the consequences of Chinese methods (Lifton, 1961). Typically one obtains symptoms of anxiety neurosis similar to those that can be generated by any traumatic event.
As an indication of this possibility Dr. O'Malley of the Mater Hospital, who has interviewed three of the detainees at the request of their solicitors, considers that probably one and possibly another will suffer long-lasting anxiety neurosis symptoms. He points out that this is only a preliminary diagnosis based on the one and a half hour interview allowed him by the authorities with each of the three.
The British Society for Social Responsibility in Science had hoped to send an independent team of psychiatrists and other scientists to examine the extent of ascertainable psychological damage among those internees and detainees who suffered the full rigour of the 'disorientation' techniques. However, the Home Secretary has not seen fit to recommend to the Northern Ireland Government that it should grant us interview facilities. We regard this as regrettable, particularly in view of Lord Balniel's statement in Parliament (Hansard, 30 November 1971) that it will be for the Parker Committee to decide from whom it wishes to take medical evidence. We have still not received a reply from the Northern Ireland Government to our request, and so must present our evidence without the benefit of a report from our investigating team.
In the light of the information currently available, both as to the techniques of interrogation used in Northern Ireland and their observed and likely effects, we hold that such techniques – wall-standing, hooding, masking noise, bread-and-water diet, sleep deprivation – should be prohibited. If adopted as official practice, they would incorporate a further misuse of science and technology, as well as a crudely behaviouristic view of the individual as an object to be manipulated mechanistically by the State.
Hinkle, L.E. & Wolff, H.G., Communist interrogation and indoctrination of 'enemies of the state'. Archives of Neurology and Psychiatry 1956, 76, 115-174.
Heron, W., 'The pathology of boredom'. Scientific American, 1957, 196, 52-56.
Leidermann, P.H., Mendelson, J.H., Wexler, D. & Solomon P., 'Sensory deprivation: clinical aspects', Archives of Internal Medicine 1958, 101, 389-396.
Lifton, R.J., Thought Reform and the Psychology of Totalitarianism, New York, Norton, 1961.
Sargant, W., Battle for the Mind, New York, Doubleday, 1957.
Schultz, D.P., Sensory Restriction, New York, Academic Press 1965.
Shurley, J.T., Military Medicine, 1966.
Smith, S. & Lewty, W., 'Perceptual isolation using a silent room'. Lancet, 1959, Pt. 2, 342-345.
Zubek, Sensory Deprivation, New York, Appleton-Century-Croft, 1969.