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.