Criminal injustice
The Six-County criminal justice system's legacy is one of
bias, bigotry and failure. An Phoblacht's LAURA FRIEL examines the
system's failings and questions whether the criminal justice review
body set up under the Good Friday Agreement is up to the job.
One morning in July 1981, West Belfast housewife Nora McCabe was
fatally injured by a plastic bullet fired from an RUC Land Rover. The
RUC denied firing a plastic bullet in the street in which Nora had
been struck and claimed that they were under attack by petrol bombers.
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The office of the DPP has seen its role as supporting the
British/unionist status quo and it has been vigorous in pursuit of
that goal
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Despite the fact that film footage, inadvertently taken by a visiting
Canadian television crew, exposed the RUC patrol's claims as a tissue
of lies, the DPP announced there would be no prosecutions of RUC
officers for either killing Nora McCabe or for committing perjury at
the inquest.
In the early hours of a Sunday in April 1997, Portadown Catholic
Robert Hamill was fatally injured by a loyalist mob in view of an
armed RUC mobile patrol. Despite warnings of an impending sectarian
attack and pleas for help by Hamill's companions during the attack,
RUC officers made no attempt to intervene.
Initial RUC claims that the patrol attempted to intervene but came
under attack were totally discredited as was the reference to the
clash of two rival factions. In October 1999, the DPP announced the
members of the RUC patrol would not face prosecution.
Last week's decision not to prosecute the RUC officers who threatened
Rosemary Nelson's life is the most recent in a long history of anti
nationalist actions by the Director of Public Prosecutions. But the
office of the DPP hasn't failed in its duty; it's much worst than
that, the DPP has seen its role as supporting the British/Unionist
status quo and it has been vigorous in pursuit of that goal.
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The whole ethos of the courts is anti-nationalist. Every time a
nationalist enters a court in the Six Counties, he or she is
confronted with symbols of British royalty and sovereignty
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Almost every decision taken by the office of the DPP in the last 30
years has reflected the agenda of its political masters. On the rare
occasion the DPP's office has stepped outside the fold, it has been
swiftly brought back into line. An early case exposed the myth of the
political independence of the DPP.
Unlike the vast majority of state killings, the DPP decided to pursue
prosecutions of RUC officers involved in five of the six deaths
investigated by the Stalker inquiry into shoot to kill. The RUC
officers were acquitted but evidence was uncovered which, in the view
of the DPP, justified bringing charges of perverting the course of
justice.
However in a statement to the British House of Commons, the then
Attorney General, Patrick Mayhew, announced that he had brought a
number of matters to the attention of the DPP including matters
relating to the public interest and national security and the Director
had in the lights of this decided ``it would not be proper to institute
criminal proceedings''.
There have been over 350 nationalists killed by the British crown
forces, many in disputed circumstances. Fewer than 30 cases have been
taken up by the DPP and only a handful were successfully convicted.
Even when a conviction has been secured, as in the case of paratrooper
Lee Clegg, political lobbying has ensured either minimal punishment or
the overturning of conviction on appeal.
The DPP was a key player in the cover-up which ensued after the role
of British Military Intelligence agent Brian Nelson was inadvertently
exposed by the Stevens' inquiry into Crown forces collusion with
loyalist death squads. In a last minute deal, the DPP dropped the most
serious charges against Nelson for guilty pleas on lesser charges. A
trial which had threatened to expose the British army's role in
loyalist killings was effectively curtailed.
Most recently, the role of the DPP has come under scrutiny in relation
to the prosecution of William Stobie, UDA quartermaster and RUC
Special Branch informer. During a court hearing it was revealed that
almost all the evidence against Stobie was contained in RUC interview
notes taken in 1990. Stobie has admitted supplying and disposing of
the weapons used in the murder of Belfast solicitor Pat Finucane.
The DPP suggested there had been insufficient evidence to prosecute
Stobie in 1990, but the only substantive difference between then and
now is an admission by Stobie that he knew Finucane was the target. As
Sunday Tribune journalist Ed Moloney pointed out, knowing the identity
of the victim has never been decisive in murder convictions.
The DPP's refusal to prosecute agents of the state has been compounded
by the vigour with which opponents and perceived opponents of the
state have been pursued. Thousands of nationalists have faced
prosecution on the basis of uncorroborated confession evidence, often
obtained through the brutal interrogation methods of the RUC.
The willingness of the DPP to pursue prosecutions was compounded by
the willingness of a judiciary, often presiding over non jury courts,
to convict. The vast majority of convictions in non-jury Diplock
courts were based solely on so-called confessions. At one stage, the
conviction rate reached an astonishing 90%. No wonder nationalists
referred to the system as conveyor belt justice.
y part of the system could have called a halt to the whole farce. If
the British government had fulfilled its international human rights
obligations, if the DPP had refused to pursue cases or had the courts
refused to convict cases where the torture and ill treatment of
detainees were evident, RUC brutality might have been curtailed
overnight. They did not and thousands of nationalists suffered as a
consequence.
``Every major human rights agency in the world, from Amnesty
International to Helsinki Watch, has accused Britain of torture,
summary execution and extensive violations of human rights. London
holds the distinction of having been found guilty before the European
Court of Human Rights more often than any other signatory since 1950,
`` says Sinn Féin.
It is against this backdrop that next month, nationalists will assess
the publication of a review of the criminal justice system in the Six
Counties. The review was commissioned as part of the Good Friday
Agreement, but unlike the Patten Commission on policing, this review
has been low key.
Headed only by an NIO official, the composition of the review lacks an
international dimension and has little human rights expertise. The
limited remit of the review has also attracted criticism. The specific
exclusion of emergency legislation has widely been identified as a
fundamental flaw.
As the Committee for the Administration of Justice (CAJ) points out:
``A key part of the criminal justice system in Northern Ireland over
the course of the last 30 years is the history of emergency law and
procedure.''
In a consultative paper issued by the review team, the then British
Secretary of State, Mo Mowlam, concluded that the criminal justice
system had ``served Northern Ireland well'' over the last 30 years. It
has certainly served the British government well.
``Successive governments made such inroads into the safeguards normally
associated with a criminal justice system that the system effectively
lost its most important aspect, its independence from government,''
says the CAJ.
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The injustice endured by northern nationalists since partition has
been criminal. It remains to be seen if the review of the criminal
justice system commissioned by the Agreement will provide the impetus
for the kind of fundamental change required
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In a submission, Sinn Féin argues that matters outside the remit of
the review which need to be addressed include not only emergency
powers, but also killings by state agencies, the use of plastic
bullets, the murders of Pat Finucane and Rosemary Nelson, collusion,
torture and ill treatment during interrogation, curfews, and the
operation of the RUC and British army.
``The Six-County state has never been able to afford its citizens the
justice and equality fundamental to a peaceful and democratic
society,'' says Sinn Féin. ``The consequence has been a cycle of
repression, conflict and resistance. Unionists cannot be solely held
responsible for this. Britain's policy created a sectarian state. The
excesses of the British state in defence of the northern statelet have
been well documented.''
The CAJ points out that the role of the judiciary will become even
more significant under the terms of the Good Friday Agreement. With
the introduction of the Human Rights Act and the new Bill of Rights
envisaged by the Agreement, the courts will be able to strike down
Assembly legislation if it conflicts with these standards.
``The judiciary in a modern democratic state should act as the most
significant protector of the rights of the citizen against the
violation by the state,'' says Sinn Féin. ``Instead, in the north of
Ireland they have generally given the stamp of legal approval to
widespread violations of the rights of all citizens, but particularly
nationalists. The northern judiciary are in the eyes of the
nationalist community as discredited and unacceptable as the RUC.''
The judiciary in the north, from county court upwards, is currently
made up of 24 men and one recently appointed woman. Catholics are
significantly under represented within the judiciary and there are no
nationalists. Other groups such as the Chinese, Traveller and the
Disabled communities, have no representation either.
At least four of the most senior judges, including the current Chief
Justice, have previously acted as advisors to the Crown. This ``creates
at the very least a perception of bias, particularly given the fact
that as senior crown counsel they have often acted in the most
controversial of cases'', says the CAJ.
But it's not just the personnel; the whole ethos of the courts is
anti-nationalist. Every time a nationalist enters a court in the Six
Counties, he or she is confronted with symbols of British royalty and
sovereignty.
Sinn Fein has called for a neutral environment. The courts should
cease to be known as the ``royal'' courts. Royal insignia should be
removed and the trappings of unionism associated with the opening of
court terms should be removed.
Individuals should no longer be summoned to the court in the name of
the British Queen. Senior barristers should be known as Senior Counsel
not Queen's Counsel and oaths of allegiance to British sovereignty
should not be required for officers of the court.
Sinn Féin points out the sectarian and racist ethos of the loyal
orders. ``It is inconceivable that members of the orders could
impartially and in a politically neutral manner administer the
criminal justice system.''
Sinn Féin advocates the establishment of an all-Ireland constitutional
court which would be the supreme court for the 32 counties. The
dependence of Irish jurisprudence on two routes, towards the Supreme
Court in the south and the British House of Lords in the north, is
illogical.
The party says that: ``In case after case, the House of Lords sided
with the military and political authorities. It widened the scope of
the British military in terms of the use of lethal force and it
prevented disclosure in inquests into disputed state killings. It
failed to tackle torture in Castlereagh and prevented effective
protection of detainees. It also failed to challenge the wide array of
emergency legislation.''
Participants to the Good Friday Agreement indicated that a criminal
justice system should:
- deliver a fair and impartial system of justice to the community;
- be responsive to the community's concerns and encouraging community
involvement where appropriate;
- have the confidence of all parts of the community; and
- deliver justice efficiently and effectively.
The injustice endured by northern nationalists since partition has
been criminal. It arose not simple out of the state's failure to
protect its nationalist citizens but out of a proactive
anti-nationalist agenda. The criminal justice system, from the
lawmakers to the RUC, from the DPP to the judiciary, all played their
part in that agenda. It remains to be seen if the review of the
criminal justice system commissioned by the Agreement will provide the
impetus for the kind of fundamental change required.
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