Abused in the name of the state?

christopher-stanleyAs the Northern Ireland Historical Institutional Abuse Inquiry considers its findings, Christopher Stanley describes the political backdrop to the shocking allegations.

As the credibility of the Independent Inquiry into Child Sexual Abuse (IICSA) continues to be questioned by survivors, suspects and the media, in the North of Ireland an inquiry into similar allegations has finished taking evidence and is now in the process of delivering a report. All good: where Westminster fails, Stormont triumphs? Sadly not.

The Historical Institutional Abuse Inquiry (HIA) was a creature of statute established by the executive and assembly at Stormont with the following Terms of Reference :

The NI Executive’s Inquiry and Investigation into historical institutional abuse will examine if there were systemic failings by institutions or the state in their duties towards those children in their care between the years of 1922-1995.

There were 15 Modules relating to separate institutions and one individual. Module 15 examined Kincora and Bawnmore. The scope of Module 15 was as follows:

Investigation of Kincora Boys’ Home, Belfast and Bawnmore Children’s Home, Newtownabbey commenced on Tuesday 31st May 2016 and spanned 20 sitting days.  The timetable of proceedings with links to the transcripts, witness statements and evidence are provided below for each sitting day. Readers may find parts of the transcripts, witness statements and evidence offensive or distressing.  Some of them contain graphic descriptions of violent and sexual behaviour, which are not suitable to be viewed by persons under 18 years of age.  If you have been affected by reading this material you may wish to seek appropriate support.

What occurred to those boys ‘in the care of’ the Kincora Boys’ Home (and related institutions under the jurisdiction of the Eastern Health and Social Services Board) throughout the Conflict up until 1980 marks a particularly bleak point in the systemic practice of state collusion between the British government and Unionist groups, including the Orange Order, Presbyterian churches and Loyalist paramilitary organisation. What occurred at Kincora throughout the 1970s was the sexual abuse of children for the use of political gain through blackmail and related forms of coercion in a strategy of counter-insurgency. Collusion between state agencies including MI5, MI6 and the Ministry of Defence resulted in Kincora becoming a site of sexual abuse (including trafficking to London) for political gain, fed by the Ulster Loyalist and British Establishment sexual appetites. Previous inquiries and investigations only served to intensify the suspicion of cover-up and collusion about Kincora.

It was immediately apparent to those representing the victims of sexual abuse who had come forward to the HIA that there was a flaw in its proposed investigation of Kincora: the HIA was limited in its jurisdictional remit to the North of Ireland with no powers to compel evidence or witnesses from any other part of the UK. This would mean, by default, no powers to compel evidence and witnesses from the British security services and MOD.

A constitutional reason for this absence of power is that matters of National Security remain reserved to the administration at Westminster and are not devolved to the administration at Stormont.

Subsequent representations to the Secretary of State for Northern Ireland requesting that Module 15 be removed from the HIA and placed within the jurisdiction of the IICSA (in retrospect probably not the best strategy) with it panoply of powers under the Inquiries Act 2005 was rejected on the basis that undertakings and guarantees could be established between the relevant agencies and the HIA. (see: In the Matter of an Application by Gary Hoy for Judicial Review 27 May 2016).

Morgan LCJ relied upon the HIA mechanism available to applicant in the following terms at paragraph 34:

More recently the ECHR looked at the procedural obligation in P v United Kingdom (2014) 58 EHRR SE9. That was a case involving a prisoner who required medical treatment as a result of self -harming. The court held that the procedural obligation required a thorough and effective investigation capable of establishing facts and attributing responsibility as regards allegations of serious ill-treatment falling within the scope of the article. Importantly, once the ordinary mechanisms of civil, criminal or administrative remedies provided adequate scrutiny of the impugned ill-treatment, there was no requirement in Article 3 to provide in addition an inquiry into the wider public policy issues which constituted the background to the alleged ill-treatment.

In conclusion at paragraph 41 of that judgment Morgan LCJ stated:

This society has been rocked to its core by the shocking disclosure of the abuse of children in this community over many years. Just as shocking has been the manner in which the institutions to which some of the abusers belonged sought to protect the institution rather than the children. There is a suggestion in this case that children in Kincora were abused and prostituted in order to satisfy the interests of national security. If that is true it must be exposed. As a society we must not repeat the errors of the institutions and should remember our obligations to the children. If the suggestion is not true the rumour and suspicion surrounding this should be allayed. We have decided that the HIA is entitled to proceed along the route mapped out by it. That does not in any way detract from the need to ensure that our obligations to these children are satisfied.

An immediate consequences of the litigation was the decision by some of the victims of abuse not to give evidence to the HIA and the withdrawal of the offer to give evidence by a number of high profile possible witnesses who have maintained that Kincora was a site of cover-up and collusion.

An aspect of the arguments presented to the courts in the North of Ireland was that the HIA specifically regarding Module 15 had to be ECHR Article 3 compliant in that the sexual abuse suffered by the victims at Kincora amounted to torture, inhuman and degrading treatment.

The HIA made it clear in correspondence with the legal representatives of the victims and in arguments to the courts that it had not been the intent of the legislators that the HIA would conduct its investigation in a manner consistent with Article 3 regarding Kincora.

However, since a core allegation made by the victims and a number of witnesses was that there was state knowledge (at least) about Kincora then Article 3 was engaged and therefore the procedural investigatory obligations demanded to discharge the responsibilities of the British government in this investigation were engaged and needed to be satisfied.

In domestic law, seeking an Article 3 compliant investigation analogous to the positive procedural investigatory obligations being engaged following a breach or violation of Article 2, is a developing area of jurisprudence. In terms of institutional sexual abuse investigations where the role of the state is engaged there is obviously a compelling argument to be made that such investigations needs to be Article 3 compliant with victims of abuse being able to effectively participate through the examination of disclosure material and the cross-examination of witnesses in order to safeguard their legitimate interests. Following R (AM) v SSHD [2009] EWCA Civ 219 the case law on the obligation under Article 2 should be considered equally applicable to Article 3. Whether these principles can now be applied to the victims of historic sexual abuse including those ‘in the care of’ the Kincora Boy’s Home in order for them to effectively participate in the investigatory process will now only be tested when the report of the HIA is published. A return to court is anticipated at that point.

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