Like the sinner who prayed to receive chastity, but then added not anytime soon, a British minister proclaimed that Diplock courts will be abolished, but not for eleven months and not thereafter in cases where crown prosecutors so request. In short the crown will restore jury trials to all Republican political suspects, except those currently charged who will be dealt with before the measure takes effect, and those Republicans charged thereafter upon the routine Crown prosecutor’s request. No doubt the British will herald this abolition of Diplock courts as an important advance, preparing the way for full Republican and nationalist endorsement of the constables enforcing British laws in the six counties. In actual fact, an analysis of this announcement, against the background of British courts and their dealings with Irish political suspects, shows how little changed since the Stormont Deal. Such an analysis will raise key political questions that must not be ignored.
It was British Brigadier General Frank Kitson, who after serving in Belfast, set forth the alternative roles which the legal system might play. The crown legal framework could of course be administered as an institution of justice, or in the alternative serve as “just another weapon in the government’s arsenal”, little more than a propaganda cover for the disposal of unwanted members of the community. The creation, existence and continuation of Diplock courts leave little doubt that the British chose the latter alternative in so far as Irish Republican suspects were concerned.
Diplock courts were designed to deal with a British political problem, rather than with regard to justice for those hauled before its docks.
Internment, re-introduced beginning on August 9, 1971, did away with such legal technicalities as charges, bail, proof, trial or right to a legal defense. The British authorized themselves to round-up and lock-up political suspects, until such time as a crown officer would see fit to sign an order of release.
Difficulties arose. Dublin was shocked and embarrassed into bringing the issue of torture of some internees before the European Court at Strasbourg. Irish Republicans fought a hunger strike and won special category status. The numbers of political suspects held without charge made a mockery of British claims that it was upholding democracy. Internment became untenable. A substitute which produced the same results but erected a facade of legal protections had to be found. A commission was empanelled and its recommendations accepted by Westminster. Diplock courts, named in dubious honor of the British Lord heading the commission, were established.
The cornerstone of the Diplock courts would be the abolition of jury trials for political suspects. Jurors, including some from areas like West Belfast, South Armagh, the Bogside etc, could not be counted upon to convict political suspects. Indeed jurors might even have the temerity to disbelieve or to dismiss sworn testimony by constables on issues such as torture used to extract confessions. All such decisions would be entrusted to the safe hands of a British crown judge.
Several other far-sighted recommendations were also legislated. Rights to bail pending trial were severely curtailed so that a practice of internment by remand was instituted. Suspects could be held without bail for months or years before trial, sometimes only to learn that there was insufficient evidence to support charges in a Diplock court trial.
The burden of proof on the admissibility of confessions was turned on its head. Instead of the crown being required to prove that a confession was freely and voluntarily made, it became the victim’s burden to prove that a confession had been obtained by beatings or torture.
The victim of course was held in the custody of five or six constables at the time of his so-called “voluntary statement”. As one solicitor remarked, RUC members whose consciences were untroubled by torture were rarely troubled by lying about it.
Years later Amnesty International would find that almost eighty percent of those convicted were found guilty based on confessions given at holding centres like Castlereagh. It was simply a matter of those crown servants who inflicted the torture telling the crown’s Diplock judge that the dedicated political suspect confessed as a matter of conscience and then immediately injured himself or herself. Jurors of course could not have been counted upon to stomach such testimony.
Other subtle devices were also in play. Solicitors who fought too hard in the Diplock courts were informed about threats conveyed through their clients. Belfast solicitor Pat Finucane would be murdered in his home on a Sunday morning, with information provided a British Army agent Brian Nelson, and with weapons provided by an RUC agent William Stobie. Rosemary Nelson was assassinated in circumstances which showed crown collusion. Cover-ups of the role of the crown in both these matters continue to this day.
Legal rules were changed to facilitate supergrass show trials in which one paid perjurer could obtain freedom and wealth by giving script testimony against former friends and neighbors.
Diplock courts became a conveyor belt, which remains an integral component of a British strategy of criminalization first in the H-blocks, and Armagh and now in Maghaberry.
Why should the British announce the abolition of Diplock courts then nullify the initiative with loopholes? SDLP member Alban Mc Guinness described the crown initiative as “confused”. In reality the strategy could not be clearer. The initiative will mean nothing to Republican suspects, beginning with Sean Hoey, whose trials will commence within the eleven month delay period. It will mean little to Republican suspects yet to be charged, who can be routinely denied a jury trial at the request of the crown.
The British strategy seems clearly and solely directed at Sinn Féin. The British want a Sinn Féin endorsement of crown policing boards and indeed the crown constabulary. Clearly the British want Sinn Féin locked in to such an endorsement before the November, Stormont deadline.
Diplock courts would be an obstacle to such an endorsement. By announcing the abolition of Diplock courts, in a meaningless measure that will not take effect until much later, the British believe that they have given another inducement to make Sinn Féin backing for British courts and criminalization more palatable. How will Sinn Féin answer?