Holden v Ministry of Defence and the Police Service of Northern Ireland: accountability and the Northern Ireland conflict
9 August 2023
In the early hours of 24 March 1922, a group of men, of whom most were in police uniform, broke into the North Belfast home of prominent Catholic businessman Owen McMahon and shot him dead, along with four of his sons and a male employee. Between 1920 and 1922, hundreds of people were killed, and thousands forced out of their homes, particularly in Belfast and the surrounding townlands. These grizzly events marked the birth of Northern Ireland.
In response to the violence, the recently established Parliament of Northern Ireland enacted the Civil Authorities (Special Powers) Act (NI) 1922 which allowed certain authorities of Stormont’s devolved government to be designated ‘civil authorities’ for the purpose of making regulations to maintain peace. The Northern Ireland Home Affairs Minister, designated such an authority, promptly made regulations to empower members of the armed forces serving in Northern Ireland with very broad powers of arrest. The 1922 statute, reviled throughout its existence and renewed several times until it was made permanent, was eventually repealed in 1973. But the arrestees and detainees over whom the statute cast its long shadow remained. Holden involved one such individual.
Liam Holden was connected to the shooting of a member of 2 Parachute Regiment, Private Frank Bell, on 17 September 1972. This connection was made in an intelligence report, with the intelligence known to the Parachute Regiment. On 16 October, Holden was arrested under regulation 11 made under the 1922 statute. Among the widest powers of arrest ever conferred by statute in Northern Ireland, regulation 11 authorised any police, member of the armed forces or other person designated as such to:
[…] arrest without warrant any person whom he suspects of acting or of having acted or being about to act in a manner prejudicial to the preservation of the peace or maintenance of order, or upon whom may be found any article, book, letter or other document, the possession of which gives ground for such a suspicion, or who is suspected of having committed an offence against these Regulations or of being in possession of any article or document which is being used or intended to be used for any purpose or in any prejudicial to the preservation of the peace or maintenance of order, and anything found on any persons so arrested which there is reason to suspect is being so used or intended to be used may be seized.
The details of Holden’s arrest are just as important as what happened subsequently. Private Lockhart, who arrested Holden, took him to the British Army base at Black Mountain School. In a statement originally prepared to this effect, Private Lockhart explained that Holden was taken back to the Army base because ‘the Army wished to see’ Holden. This was subsequently removed from the statement prior to Holden’s trial for the shooting.
Holden remained in Army custody for around 5 hours, including a 3-hour interrogation which resulted in a confession. The confession was repeated to the police when Holden was taken to the Castlereagh Holding Centre a few hours later. Holden was charged with murder later that day. This was substituted on 21 December with a charge of capital murder contrary to common law and an unlawful possession of firearms charge. At his voir dire, defence counsel submitted that Holden confessed under oppressive circumstances and thus his confession was inadmissible. In his evidence, Holden had made several allegations against the Army when being interrogated at its base, including being waterboarded, hooded and threatened with being shot. Lord Lowry, then Lord Chief Justice of Northern Ireland, rejected these allegations and accepted the prosecution evidence that no ill-treatment had occurred. Holden was convicted of both charges in 1973 and sentenced to death for the first charge, though this was subsequently commuted to life imprisonment.
In 2002, Holden applied to the Criminal Cases Review Commission which referred the matter to the Northern Ireland Court of Appeal. In 2012, the Court of Appeal quashed the conviction for capital murder. Critically, the details of Holden’s arrest were contrary to the policy which had come into force a few months before Holden’s arrest. Concerns around the unlawfulness of arrests and detentions by the Army, various law officers, including the then Treasury Solicitor, sought to narrow the scope of the powers conferred under the 1922 statute. At the time of Holden’s arrest, the Army was required to hand over anyone it arrested to the Royal Military Police to document the arrest and ensure the arrestee knew the grounds for their arrest, before the arrestee was handed over to the ordinary police for charging or further questioning. The Army was only exceptionally permitted to question an arrestee in order to ascertain their identity. These requirements came into force in July 1972 and codified in a manual called the Blue Book, with all Army units in Northern Ireland being trained as a result. Holden, it should be remembered, was in Army custody for 5 hours and interrogated about matters relating to the suspected offences for which he had been arrested – in clear breach of the requirements at the relevant time.
A claim for miscarriage of justice compensation yielded the statutory maximum following reforms in 2008. But of course, compensation for miscarriages in justice relates only to the criminal justice system and not the conduct of any other party in relation to that miscarriage. This is instead dealt with by the civil claim which Holden pursued.
For the most part, the judgment of Mr Justice Rooney is unexceptionable. Among the key issues which divided the parties in this case were whether the initial arrest and subsequent detention had been lawful, the truthfulness of the plaintiff’s confession in 1972 and – perhaps most publicised – whether the plaintiff’s confession was extracted under torture.
On the first issue, Rooney J decided that the arrest had been lawful. This is because the power of arrest conferred by regulation 11 (above) required suspicion, rather than reasonable suspicion. Regulation 11 had previously been interpreted in this way some 50 years ago in a decision which Rooney J did not depart from (Holden, -). However, the arrest subsequently became unlawful. Holden had been brought to the Army base at Black Mountain School and interrogated to gather intelligence on who shot Private Bell – all in breach of the Blue Book (Holden, ).
The resolution of the second issue was not as straightforward. Holden gave evidence to the effect that his confession had been extracted under torture and was untrue. The defendants, adopting much of what was said at the original criminal trial, submitted that the confession accorded with the prosecution account of the shooting and the murder weapon at the time, and should be accepted as having been true. Rooney J found discrepancies in the prosecution evidence – where the evidence at trial appeared to have been inexplicably enlarged upon from previous statements made by the Army officers who had interrogated the plaintiff (Holden, ). Even more damningly, the Enfield rifle alleged to have been the murder weapon could not be ballistically or forensically linked with the shooting at all (Holden, ). As the defendants did not call the original prosecution witnesses to give evidence in the civil trial, the discrepancies in their evidence before Lord Lowry LCJ could not be tested. Consequently, the plaintiff’s original confession ‘cannot be assumed [to have been] truthful’ (Holden, ).
On the issue of torture, the plaintiff gave evidence together with two experts. The defendants, critically, offered no evidence. The details of the plaintiff’s evidence here are harrowing, the description of waterboarding especially so:
The first thing I felt was the cold. Then the water on my face. Then, arrrgh! I couldn’t breathe. I tried to breathe through my mouth but sucked water in. [I was] gagging. I tried to breathe through the nose. I felt water going up my nose. You can just feel yourself sinking away.Holden, 
The defendant’s most significant response in this context was not in relation to the plaintiff’s evidence, but in getting his expert to concede that the psychiatric injury covered the totality of the plaintiff’s experience – from arrest, to interrogation, to trial, to imprisonment (Holden, ). This had consequences for causation (whether the plaintiff’s injuries were attributable solely to the defendants’ actions and not a combination of those actions and subsequent events outside the defendants’ control) and thus, the level of damages to which the plaintiff would be entitled.
The upshot was that the plaintiff’s evidence on what he endured while in the custody of the Army was largely unchallenged. Rooney J found, on the balance of probabilities, that the plaintiff endured what he claimed he had: waterboarding, hooding and threats to his life (Holden, ). Although the judge did not make a finding of ‘torture’ as such, the ill-treatment suffered by the plaintiff had an obvious connection, both in time and in description, to the infamous ‘five techniques’ which had been the subject of Ireland v United Kingdom, and which the European Court of Human Rights had held to be inhuman or degrading treatment or punishment within the meaning of Article 3 of the European Convention on Human Rights, but not torture (a 2014 petition to revise this judgment was unsuccessful).
One particularly complicated issue was the plaintiff’s claims that both the Army and police were liable for malicious prosecution. On this issue, Rooney J found against the first defendant. The judge’s conclusion here is worth setting out:
Even if the first defendant’s servants or agents strongly believed that the plaintiff was guilty of murder, the use of oppressive force, to include waterboarding, hooding and threats to kill, unlawfully induced the confession and in effect deliberately manipulated the prosecution.Holden, 
The judge did not, however, make a similar finding against the second defendant – pointing to (among other things) the lack of evidence that the police had been aware of the oppressive treatment the plaintiff had suffered while in Army custody, or the Blue Book – as conclusive of the issue (Holden, -).
Sadly, Liam Holden would not live long enough to see the conclusion of his civil action, but his case is, in many ways, paradigmatic of cases – sometimes known as ‘Legacy cases’ – which arise from the Northern Ireland conflict. Long-running, complex, dealing with matters so far in the past that the evidence relevant to them is difficult to obtain. But these cases also show a side which is seldom discussed: for Liam Holden, as painful and distressing as it would have been to relive his experience in the glare of a public trial, it was also a chance at vindication after a lifetime of pain which would be unimaginable to most, if not all, of society. Shortly after his conviction had been quashed, he was asked what he wanted from the soldiers who had subjected him to treatment which the law at the very least recognises as inhuman:
I would just like one of them to admit it, to acknowledge that they subjected me to what I have said they did. I think that would be almost as good, in my own mind, as the judge saying ‘Sorry Mr Holden but you were not guilty.’
Another aspect of Holden demonstrates a frequent obstacle in Legacy cases. The intelligence evidence that was offered by the defendants in that case was heavily redacted. Complete transparency in these circumstances is impossible. While this impacted neither the judge’s ability to try the case, nor the parties’ ability to present their cases in open court, some Legacy cases are not so fortunate. The latest independent report into the controversial ‘closed material procedure’ established under the Justice and Security Act 2013 – which permits the hearing of sensitive evidence in closed hearings by excluding even the plaintiff and their non-security cleared (‘open’) legal team – shows that, of 13 active closed material procedure applications in Northern Ireland, 11 relate to the conflict.
Despite the difficulties, however, Holden is a clear example of the justice system at work. The independent and impartial adjudication of claims, no matter how embarrassing or grave and no matter how important or well-resourced one or other side might be, is a hallmark of a justice system frequently hailed as ‘the envy of the world’. Those who might take heart in the determined functioning of that system as exemplified in Holden, in spite of the many challenges presented by the case, are left wondering why such a system might be forced to close its doors permanently. As we wait to see what happens to the Legacy Bill – which would prevent any new civil action which was not begun before the Bill’s second reading in the House of Commons (along with extinguishing a host of other investigatory mechanisms used for the conflict) – parliamentarians must consider whether such a drastic measure will truly deliver justice to anyone.
The Chief Commissioner-Designate of the Independent Commission for Reconciliation and Information Recovery (the body proposed to take over all existing investigatory and information recovery avenues in relation to the conflict), Sir Declan Morgan has indicated that the Commission may provide a ‘real opportunity to deliver answers to victims, survivors and families’. As victims’ campaigner Raymond McCord said, however, the real issue is accountability. A century ago, no one was held accountable for the brutal murders of Owen McMahon, his sons and his employee. Now, history may be forced to repeat itself.