Today The Guardian has released a Guardian Investigation film on police brutality in Northern Ireland prior to the policing reforms and the Belfast/Good Friday Agreement. The investigation, which can be viewed in full here, reveals that there was widespread RUC brutality including beatings, genital burning and emotional abuse that was used in order to acquire confessions from detained individuals. The entire film—which is just 12 minutes long—is required viewing for everyone interested in Northern Ireland and more broadly in the use of violence in counter-terrorist organisations, and it makes the kinds of points that we are used to reading about the use of torture and brutality: it is counterproductive, it results in unsound evidence, it damages the relationship between the State and the group that identifies with those subjected to such violence on a long-term basis, and it arises where there is both a top-down culture that information must be attained at any costs and a culture within the police that fears whistle-blowing and the repercussions of failing to stop ‘preventable’ attacks. What I found particularly interesting about the investigation, however, was the links that are made between the Diplock system and the use of violence and brutality against those held in detention.
Established in 1973, the Diplock Courts were non-jury courts where cases were heard by a single judge and conviction was possible on the basis of a confession. Although these were abolished in 2007, the Diplock system remains a worrying legacy of the Northern Irish conflict and, of course, in Ireland we continue to use (and moot the extended use of) the non-jury Special Criminal Court for paramilitary and other forms of offences for which the ordinary criminal justice system is considered inappropriate (Vicky Conway and Fergal Davis wrote about this previously on HRinI). The suggestion in the Guardian film is that the existence of a non-jury court, where conviction could be secured by confession, essentially incentivised the police to secure confessions by whatever means they considered necessary including the use of violence. This claim is not explored in an enormous level of depth in the piece, but it is an interesting one and seems to underlie much of the film itself.
Certainly making a claim like this does not seem to be the same as saying that Diplock Courts, or Diplock-style courts, are fundamentally unsound because they incentivise such behaviour. The existence of violence within policing, and especially the kind of violence recounted in this film by those who were subjected to it, has I would say much more do with the culture within that police force than with the nature of the Court in which an offence is going to be tried. Perhaps the perceived relative ease of securing conviction in a non-jury trial added some kind of pressure to get a confession, but the mechanism of getting that confession was born out of an organisation where violence was considered legitimate. The testimony of former RUC officers—read by an actor in the film—seems to evidence this. It is clear from that testimony that there was support for, if not an expectation of, confessions acquired by whatever means necessary at senior levels within the police force. The existence or otherwise of a non-jury trial system is unlikely, I think, to influence that greatly.
Secondly, the claim around Diplock Courts does not, I think, mean to undermine the excellent legal work done within those courts. In the film Prof. Kieran McEvoy of QUB School of Law notes the excellent lawyering that happened within the system. Indeed, extremely rigorous scholarly work continues to be done on the judicial decision-making within the courts and on the kind of lawyering that took place within them, not least by my colleague in UCD School of Law Prof. John Jackson. We know, though, that good lawyers and rigorous and fair-minded judges cannot prevent convictions based on violently-acquired confessions in every case. The only way to do that is to try to ensure a change in policing culture where the use of violence against detainees is considered to be strictly out of bounds, where the application of violence is subject to strict accountability and transparency models, and where the rules of evidence are not prejudiced against a claim of unlawfully acquired confessions being successful should it reach that point.
In my view legal professionals have a deeply embedded sense of the rule of law, of legality, and of illegality. None of the research that I have read suggests to me that this was not the case with those working within the Diplock Courts; indeed in “Many Years On in Northern Ireland: The Diplock Legacy”, published in the NILQ last year, John Jackson argued that “despite its inauspicious beginning, a combination of legal professional norms and ethics and exposure to international human rights norms prevented the trials from descending into a rubber stamp for security initiatives”. (Jackson does acknowledge that there three major obstacles to the Diplock Courts in determining whether or not to admit confession evidence, and this section of the article (p.p.218-220) is important reading). It is, however, quite clear that this sense of the rule of law did not extend to policing. Investigations such as the one carried out by The Guardian are vital in the attempt by those convicted on the basis of such ‘confessions’ ,and often incarcerated for many years, to secure some kind of restitution. They are also vital for the process of rebuilding trust, including the difficult questions of trust around policing, that continues in Northern Ireland.
“Secondly, the claim around Diplock Courts does not, I think, mean to undermine the excellent legal work done within those courts.”
You seem to be mistaking the Diplock Courts with something else. Or, if you mean by “excellant work” that people could be lock away for long periods of their lives on little or no evidence –or as result of the subject of this blog –false confessions being beaten out of people.
While the “law” means whatever those in political power want it to mean in places like Zimbabwe, Saudi Arabia, Burma, China, or many similar states, Northern Ireland was no different.
Perhaps Ms de Londras you might do well to understand the origins of Diplock Courts. The transition from Internment to Diplock Courts was the culmination of a series of proposals put forth by Brigadier Frank Kitson. What many may not realise is the nature of Kitson’s work is a miracle blend of sociological ‘normalisation’, political policy and legal plasticity. In Kitson’s book on counter-insurgency published in 1970, he advocated for the Courts to be used as another part of the Amy’s arsenal in the fight against insurgents. He argued:
“…the Law should be used as just another weapon in the government’s arsenal, and in this case it becomes little more than a propaganda cover for the disposal of unwanted members of the public. For this to happen efficiently, the activities of the legal services have to be tied into the war effort in as discreet a way as possible…”(1)
Kitson’s merging of military policies and strategies with legal practice is extraordinary (at least in a domestic setting) and subverts the entire democratic process. The foundation of legal principles and, more significantly, practice, were to be henceforth fused with military action which is discordant with democratic governance and practice. Did expediency require military law and rule? In the minds of the sculptors of Northern Ireland’s emergency legislation the answer appears to be in the affirmative. Is this legitimate? Given the definition of our society as democratic, then the answer is negative.
“We are convinced on the evidence that we have received, that if juries were to be reintroduced for scheduled offences, their verdicts would still be subject to the influences of intimidation, or the fear of it. We have no evidence of this or of perversity in juries…”(2)
The Gardiner Report found that “no evidence” existed on which the removal of the jury was based but concluded that non-jury trials should continue.
In removing the jury, Lord Diplock, proposed that judges sitting as Trier of fact would be required to provide written reasons for finding any defendants guilty. Diplock added that, “We do not believe that it should be long or incorporate a summary of the evidence he has heard”(3)
Jackson and Doran argue that ””’“the judges have become the unchallenged masters in their own courts, the issues put before them are largely predetermined, so they are left with a residual confirmatory role. Whether this shift in power from courts to police is acceptable depends on the nature both of the special policing powers … and the special evidential rules …”(4)
Is it safe to assume that a judge would not fabricate a case? Jackson & Doran quote one Diplock judge as having said: ””’”But of course it’s very easy to say I didn’t believe a word the accused said and there’s very little the Court of Appeal can do about that. …it is difficult to criticize a judge who has made an assessment of credibility.”(5)
In my own case three senior High Court Judges have done just that; they stated in thier Judgment that they specifically heard a witness say things that he did not say**. The Judges state in the Judgment that they disbelieved the Witness’s Testimony because he had “shifted his ground a couple of times” and that he had testified that ‘another man who had been walking about 15 feet in front of Walsh had placed the jar on the wall’ or words to that effect. There is no evidence of any of these remarks in the transcripts of this Witness’s Testimony.(6) This Witness stated on oathe that he had thought that I was guilty.(7) and his Testimony is documentary evidence that the Court Judgment got it wrong.
Diplock Courts were discontinued in 2007 to be replaced by ‘non-jury courts’ in that same year. There has been a dramatic decrease in the number of defendants being tried without a jury. I say this is no improvement but makes the stigma of being considered a risk to a jury all the greater. Effectively it means an adverse inference can be drawn against a defendant by the PPS. D cannot challenge this and may never recover from what may well be the PPS being tactical rather than honest. There was no evidence that any jury had ever been threatened but reason given why Diplock dispensed with jury trial in NI. Either everyone has a right to jury trial or no one has in serious cases the Prosecution should not be permitted to taint defendants with having in some way tampered with a jury. As was recently seen in England significant savings were made by removing the jury in one serious case (to have a jury in that case was estimated would cost £50 million) –the defendants were not allowed to know how they had threatened the jury or to appeal the Prosecutions decision –figure the obvious motives behind that one “excellant work” or just legal sculduggery.
Footnotes:
(1) Kitson cites Sir Robert Thompson, Defeating Communist Insurgency, page 53.
(2) Greer & White: Abolishing The Diplock Courts, page 91.
(3) ibid, page 88.
(4) John Jackson & Sean Doran, Judge Without Jury: Diplock Trials in the Adversary System, Claredon Press, 1995, page 31, (cite Walker & Hogan page 109).
(5) ibid, Page 275.
(6) Full Text of Mr Bradley’s Testimony http://www.christywalsh.com/files/BradleyTestimony.pdf.
(7) ibid, page 55.
** See http://www.christywalsh.com/html/judges.html.
Christy, thanks for your comment. I am very well aware of the history and operation of the Diplock Courts. As I think the post as a whole made clear, my reference to “excellent work” was to the excellent standard of defence lawyering within those courts. in general.
While there were excellant defence lawyering, it was sadly not the norm, I know of cases where lawyers were trying to persuade their clients to plead guilky for high dopuble figure enetences –if the refused, they were adviced they would face a life sentence. A number of men refused and were subsequently cleared. I shared a cell with one of the Ballmurphy 5 –he was distraut with anxiety on what he should do –his predicament was that all five had to pleaded guilty or the offer of quick release would be lost and they all faced life sentences for murder based on their signed confessions. I persuaded Mark Prior not to listen to his lawyer -he was subsequently the only one subsequently found not guilty. I understand the remaining four are to this day trying to have their wrongful pleas to be seen for what they were. Sadly, very sadly, defence lawyers made bad laws work.
Christy. You are spot on. Just how much excellant defence representation there really was is now in question. More and more ex prisoners are now better abled to look at their own cases on the retrieval of information obtainable from the NIO.
Information that even though comes heavily altered in order to hide that deemed as security sensitive. Forensics appears to be of a lazy nature in a lot of cases. Too much work involved in cross examining so called experts who it now appears never even carried out the proper tests required to arrive at anything near what they were presenting to the court. But lets not forget how much pressure most of these defence professionals were under, can`t be easy when they were trying to juggle so many cases at the same time. Still no excuse for shabby workmanship.