1.1 British Irish rights watch (BIRW) is an independent non-governmental organisation and registered charity that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.
1.2 This submission to the Human Rights Committee of the United Nations concerns the United Kingdom’s observance of the provisions of the International Covenant on Civil and Political Rights (ICCPR). All our comments stem directly from our work and experience. In the interests of brevity we have kept details to a minimum, but if any member of the Committee would like further information about anything in this submission, we would be happy to supply it. Throughout the submission we respectfully suggest questions that the Committee may wish to pose to the United Kingdom.
2. THE UNITED KINGDOM AND HUMAN RIGHTS
2.1 The United Kingdom (UK) has yet to incorporate the provisions of the ICCPR into domestic law.
What plans does the UK have for incorporating the ICCPR into domestic law and what is the timetable?
2.2 The UK has yet to ratify the first Optional Protocol to the ICCPR, thereby depriving people within the UK of the right of individual petition to the Human Rights Committee.
What plans does the UK have for ratifying the Optional Protocol and what is the timetable?
2.3 Despite these omissions, the UK has now incorporated most of the provisions of the European Convention on Human Rights (ECHR) into domestic law, by virtue of the Human Right Act 1998, which came into force on 2nd October 2000. However, the Human Rights Act did not incorporate Article 13 of the ECHR, which provides for an effective remedy for breaches of Convention rights.
Will the UK incorporate Article 13 of the ECHR into domestic law?
2.4 The Human Rights Act also maintained the UK’s derogations from Article 5 (3) of the ECHR and Article 9 (3) of the ICCPR, which was necessitated by the fact that the UK did not want to comply with the ruling of the European Court of Human Rights in the case of Brogan v UK concerning prolonged detention under the Prevention of Terrorism (Temporary Provisions) Act. BIRW has consistently argued that these derogations were unlawful because there was no emergency threatening the life of the nation in existence to justify them. The derogations were lifted on 19th February 2001, when the Terrorism Act 2000 came into force, which contains a mechanism for judicial sanction of prolonged detention. It remains to be seen whether this provision stands up to challenges under the Human Rights Act.
2.5 Under the terms of the Good Friday peace agreement in Northern Ireland, the UK has established a Human Rights Commission for Northern Ireland, which is currently engaged in drawing up a Bill of Rights to supplement the ECHR. The Irish government has also recently set up a Human Rights Commission. However, the UK has no plans to establish Human Rights Commissions or Bills of Rights for the rest of the UK (England, Wales, and Scotland).
Will the UK commit to establishing Human Rights Commissions and Bills of Rights throughout the UK?
2.6 In its first report to the Secretary of State for Northern Ireland the Northern Ireland Human Rights Commission has sought an increase in its resources and its powers. Specifically, the Commission is seeking the power to monitor human rights policy and legislation, to search premises and seize items, and to subpoena witnesses and evidence. These are crucial powers, without which the Commission is unable to function effectively.
Will the UK implement the Northern Ireland Human Rights Commission’s recommendations with respect to resources and powers?
2.7 The UK has been remarkably poor in publicising its commitment to the ICCPR or the process of periodic reporting. Since the present administration was elected four years ago, the Human Rights Unit of the Foreign and Commonwealth Office has made some efforts to consult with NGOs concerning its reports to the Committee, but there has been little or no attempt to engage the wider public in this process. In 1995, the Committee recommended that:
The Committee recommends that the State party give wide publicity to the Covenant, to its report and the reporting procedure. It recommends that these comments and information about the dialogue with the Committee be distributed to interested non-governmental groups and the public at large.
This has not happened. In our view, the best way to take this forward would be to include human rights education in the core curriculum for schools. At the moment, human rights education is largely the province of higher education, that is masters’ degrees and above.
Will the UK include education in human rights in the core curriculum for primary and secondary schools?
2.8 The UK has failed to implement many of the recommendations made by the Committee. These will be highlighted under the appropriate article of the ICCPR throughout the rest of this submission.
2.9 The government has a somewhat schizophrenic attitude towards human rights, in that it splits responsibility for human rights into domestic matters, which are controlled by the Home Office, the Northern Ireland Office and the Northern Ireland Assembly, and international matters, which are controlled by the Foreign and Commonwealth Office. Although the government has declared that human rights lie at the heart of their foreign policy, it was some time before a similar statement was made concerning domestic policies. In reality, like many governments, the UK tends to apply higher standards to other countries than it does to itself. For example, it is strongly resisting calls for an independent public inquiry into the murders of Northern Ireland lawyers Patrick Finucane and Rosemary Nelson, supported by the UN Special Rapporteur on judges and lawyers, the Irish government, the House of Representatives of the US Congress, and many NGOs and lawyers’ associations throughout the world.
Will the UK undertake to apply the same human rights standards at home as it does abroad?
2.10 In 1995, the Committee made the following finding:
The Committee notes that the legal system of the United Kingdom does not fully ensure that an effective remedy is provided for all violations of the rights contained in the Covenant. The Committee is concerned by the extent to which implementation of the Covenant is impeded by the combined effects of the non-incorporation of the Covenant into domestic law, the failure to accede to the first Optional Protocol and the absence of a constitutional Bill of Rights.
The UK has not complied with any of these recommendations.
3. ARTICLE 1: THE RIGHT TO SELF-DETERMINATION
The island of Ireland has been partitioned since the 1920s, with six counties (Northern Ireland) retained within the UK while the other 26 counties form the Republic of Ireland. Irish nationalists have maintained that the people of the island of Ireland have been deprived of the right to self-determination. Under the terms of the Good Friday Agreement, the partition will remain until such time, if ever, that a majority of people voting on both sides of the border decide that Ireland should be united. Some nationalists argue that, since the Irish in both jurisdictions are one people, only a majority of those voting throughout the island of Ireland can decide on the question of unification, and that the status quo continues to deprive them of the right to self-determination. However, in a referendum in 1998 a large majority of those voting in both countries supported the provisions of the Good Friday Agreement.
4. ARTICLE 2: ENJOYMENT AND ENFORCEMENT OF ICCPR RIGHTS WITHOUT DISCRIMINATION
4.1 Section 75 of the Northern Ireland Act 1998 requires public authorities to have due regard to the need to promote equality of opportunity and regard for the desirability of promoting good relations. Public bodies must submit Equality Schemes to the Equality Commission for Northern Ireland and must carry out impact assessments where it appears that there may be inequalities. This is a welcome development and creates the opportunity for the first time to measure and address inequality in the public sector. However, there is no equivalent scheme in the rest of the UK.
Will the UK introduce similar provisions on equality to those in Northern Ireland in the rest of the UK?
4.2 The 1997 Labour Force Survey, carried out by all the member states of the European Union, showed that the unemployment rate for Catholics in Northern Ireland was 12%, compared to 5% for Protestants. The same survey showed that economically active Catholics were more likely (15%) than their Protestant counterparts (12%) to have A-levels as their highest qualification. In other, words, despite being more highly qualified, Catholics were more than twice as likely as Protestants to be unemployed. In spite of all the government’s attempts through fair employment legislation to narrow the unemployment differential between Catholics and Protestants, Catholics remain about twice as likely as Protestants to be unemployed. This is partly because small employers are not covered by the fair employment laws, partly because larger employers who in the past discriminated against Catholics have not been able to attract or keep Catholic employees, and partly because investment in Northern Ireland has tended to be concentrated in the Protestant heartlands rather than in more deprived Catholic areas. Fair employment legislation in Northern Ireland prevents discrimination against job seekers and employees on grounds of religion and political opinion, but exceptions are available on grounds of national security. It remains to be seen whether these exceptions can withstand challenges under the Human Rights Act.
What steps is the UK taking to overcome higher unemployment rates among Catholics in Northern Ireland?
4.3 One of the most significant discrimination issues in Northern Ireland is the fact that the police force, the Royal Ulster Constabulary (RUC), draws only 8% of its membership from the Catholic community. As part of the 1998 Good Friday peace agreement, the government set up an independent review of policing in Northern Ireland, known as the Patten Commission. They recommended a number of radical reforms designed to create a police service that was representative of and accountable to the whole population in Northern Ireland. Although they warned the government against “cherry-picking” among their recommendations, the government bowed to unionist opposition from the majority Protestant community and watered down the recommendations. Nationalist (Catholic) reaction to this has forced the government to announce that it will review the operations of the reforms, and has meant that so far it has not been possible to set up the Policing Board which is intended to oversee the new service. In the meantime, new recruits are being sought on a 50:50 Catholic:
Protestant basis. It remains to be seen whether the RUC will be able to achieve this level of recruitment and retain Catholics in a service that hitherto has had an almost exclusively unionist culture. One of our greatest concerns, and something that we fear will inhibit Catholic recruitment, is that fact that the government rejected Patten’s recommendation that all officers should take a new oath confirming respect for human rights. The Northern Ireland Human Rights Commission has also reported that human rights training within the RUC has been inadequate. No mechanism has been put in place to ensure that serial human rights abusers within the ranks of the RUC, who have been responsible for ill-treatment and other forms of abuse over many years, are weeded out.
What steps is the UK taking to ensure that the new Northern Ireland police service guarantees the human rights of everyone in Northern Ireland?
4.4 The UK’s failure to incorporate the ICCPR or Article 13 of the ECHR means that there is no specific remedy in UK law for breaches of Covenant or Convention rights.
5. ARTICLE 3: EQUAL RIGHTS OF MEN AND WOMEN
Women are seriously under-represented at the senior levels in the public sector in Northern Ireland.
What steps is the UK taking to ensure appropriate numbers of women in senior posts in the public sector?
6. ARTICLE 4: STATES OF EMERGENCY
6.1 Although the UK has withdrawn its derogations from the ICCPR and ECHR in respect of prolonged detention for those arrested under counter-terrorism laws (please see 2.4 above), it has not rescinded the state of emergency that it declared in December 1988 in response to the Brogan ruling. In our contention, although there is dissident paramilitary violence taking place in relation to Northern Ireland, the ordinary life of the nation is able to continue. Free elections have been held throughout the conflict; the devolved Northern Ireland Assembly can go about its business; schools, hospitals and other services all operate normally. There is no state of emergency threatening the life of the nation and consequently no justification for maintaining a state of emergency.
Will the UK immediately rescind the state of emergency it has declared in relation to Northern Ireland?
6.2 In 1995 the Committee said:
Given the significant decline in terrorist violence in the United Kingdom since the cease-fire came into effect in Northern Ireland and the peace process was initiated, the Committee urges the Government to keep under the closest review whether a situation of “public emergency” within the terms of article 4, paragraph 1, of the Covenant still exists and whether it would be appropriate for the United Kingdom to withdraw the notice of derogation which it issued on 17 May 1976, in accordance with article 4 of the Covenant.
The UK has only partially complied.
7. ARTICLE 5: ACTS DESTRUCTIVE OF RIGHTS
7.1 There have been many allegations throughout the conflict of collusion between the UK security forces, both army and police, and loyalist paramilitaries. The overwhelmingly Protestant make up of the security forces, and the fact that part-time members of those forces have on occasion been proved to have also belonged to loyalist paramilitary groups concurrently, have fuelled these allegations. However, they are not merely a matter of perception: collusion has been officially acknowledged. Far from taking rigorous measures to stem collusion, though, the UK government has appeared to condone it by a series of official cover-ups, the failure to publish reports on collusion, failure to prosecute known agents of collusion, and the use of Public Interest Immunity Certificates at trials and to withhold information concerning collusion.
7.2 In 1982, six men were killed by a special police unit within a period of 7 weeks. These killings led to allegations of a shoot-to-kill policy, especially after it emerged at the trial of three police officers charged with the murders of three of the victims that they had been instructed by their superiors to withhold information concerning the planning of the operation from detectives investigating the killings. John Stalker, a senior English police officer, was called in to investigate all six deaths. He was removed from the investigation after his professional integrity as a police officer was called into question, and was suspended from duty, only to be reinstated subsequently with no stain on his character. Stalker was replaced by another senior policeman, Colin Sampson. The Stalker/Sampson report was never published. In 1988, Sir Patrick Mayhew, then the Attorney-General and later a Secretary of State for Northern Ireland, announced that, although their report disclosed evidence of a conspiracy on the part of certain persons to pervert the course of justice, he had decided that it would not be proper to institute any criminal proceedings in the public interest. In 1994, the Coroner finally abandoned all attempts to hold an inquest on the six deceased because the government refused to disclose the contents of the report. The business man, Kevin Taylor, who was used in the attempt to taint John Stalker, spent many years trying to clear his own name and was ultimately awarded a sum said to be in the region of £1 million in compensation by the courts.
Will the UK publish the Stalker/Sampson report?
7.3 In 1989, John Stevens, another senior police officer, was asked to investigate allegations that members of the security forces had been passing details of suspected IRA members to loyalist paramilitaries. In May 1990 a summary of his report was published, which confirmed that this had happened. As a result, 59 people were charged or reported to the Director of Public Prosecutions, resulting in 44 prosecutions and 41 convictions. Although many of the documents leaked to the loyalists originated from police files, not a single police officer was charged. Stevens’ full report was never published. The most significant outcome of Stevens’ investigation was the prosecution of Brian Nelson, an army intelligence agent who was infiltrated by the Force Research Unit (FRU – please see 8.2 below) into the loyalist paramilitary group the UDA and who acted as their senior intelligence office from 1987 to 1990. During that time, he helped the UDA target many people for murder. In January 1992 he stood trial on five charges of conspiracy to murder. Two charges of actual murder and 13 other charges against him were dropped shortly before the trial, which lasted only two days. He was convicted on all five conspiracy charges, plus a number of lesser charges, and sentenced to 10 years’ imprisonment, a remarkably lenient sentence. In 1992, Stevens returned to Northern Ireland to further investigate the activities of the FRU. No-one was charged following this investigation, and Stevens’ second report was never published. The contents of both his reports are particularly relevant since he is currently involved in a third investigation into the FRU.
Will the UK publish both the Stevens reports?
7.4 Police officers continued to visit many individuals, including elected politicians, to inform them that their security files had been leaked to loyalists and advising them to take precautions for their own safety. Despite these warnings, the Northern Ireland Office has refused home security grants to some of those threatened, and has refused some of them protection under the Key Persons Protection Scheme. The RUC has also refused to allow some of them to have gun licences so that they could arm themselves for their own and their families’ protection.
What steps is the UK taking to prevent collusion between members of the security forces and paramilitaries, and to protect the victims of that collusion?
8. ARTICLE 6: THE RIGHT TO LIFE
8.1 To date, over 3,600 people have died as a result of the conflict in Northern Ireland, including 1,012 members of the security forces. The majority of deaths (88%) were caused by republican and loyalist paramilitaries, while 367, or 10%, of deaths were caused by the security forces, many of them in disputed circumstances. 300, or 82%, of those killed by the security forces were Catholics according to our calculation, although Catholics represent only around 40% of the population of Northern Ireland.
8.2 One of the most serious violations of the right to life has concerned the operations of a British army intelligence unit, the Force Research Unit (FRU) which functioned in Northern Ireland between 1980 and 1990/91. Throughout the last decade, information about its activities have gradually come to light, much of it in the past two years. It is alleged that FRU infiltrated agents into paramilitary groups and assisted those groups to target people for murder. They also are said to have allowed bombings and shootings to go ahead, resulting in more deaths, in order to protect their agents from discovery. It is further alleged that they caused the deaths of paramilitaries by falsely identifying them as informers. The following have been identified as victims of the FRU’s methods:
- Patrick Hamill, killed in September 1987
- Francisco Notorantonio, killed in October1987
- John McMichael , killed in December 1987
- Terence McDaid killed in May 1988
- Gerard Slane, killed in September 1988
- Patrick Finucane, killed in February 1989
- Patrick McKenna and Brian Robinson, killed in September 1989
- Eddie Hale, Peter Thompson and John McNeill, killed in January 1990
but there may have been many other victims besides these 11 men.
8.3 One of the most prominent of the known victims was Patrick Finucane, a lawyer from Belfast. BIRW has considerable evidence that strongly suggests that he was targeted for murder by loyalist Brian Nelson, a FRU agent who was infiltrated into the UDA, a loyalist paramilitary group. There is also evidence that the man who supplied the weapons used in the murder, William Stobie, was a police informer at the time of the murder. He claims to have warned his RUC Special Branch handlers that named loyalists had asked for weapons, but the RUC did nothing to prevent the killing. There is also evidence that the RUC may have incited the murder. BIRW has placed all this evidence in the government’s hands. We asked them to check their own records in order to establish whether our allegations are true, and if so to instigate the independent public inquiry that has been demanded by the Special Rapporteur on the independence of judges and lawyers, the Irish government and others. Instead of doing so, the government set up a third police investigation into his murder, headed by Sir John Stevens, the Commissioner of the Metropolitan Police. The only person to be charged with Patrick Finucane’s murder so far is William Stobie, who confessed his part in the murder in 1990, when the Director of Public Prosecutions decided not to proceed against him – he clearly has a strong defence in abuse of process, and the case against him is expected to collapse. Brian Nelson was told in March 2001 that he will not face prosecution for his part in the murder. The reason for this decision is not known.
Will the UK set up an independent judicial inquiry into the murder of Patrick Finucane and the activities of the FRU?
8.4 In March 1999 another lawyer, Rosemary Nelson, was murdered by a loyalist car bomb. Like Patrick Finucane, her life was threatened before her death by members of the security forces. RUC officers who threatened her have been neither prosecuted nor disciplined. A soldier who was serving in the army at the time of the murder was arrested in connection with her death but was charged with unrelated firearms and explosives offences. Her safety was repeatedly raised with the RUC and the government prior to her murder by the Special Rapporteur on the independence of judges and lawyers, the Irish government, and NGOs, but no action was taken to protect her, which is why they have all called for a public inquiry into her death. A police investigation conducted by Colin Port, the Deputy Chief Constable of Norfolk, has not resulted in anyone being charged with her murder.
Will the UK set up an independent judicial inquiry into the murder of Rosemary Nelson?
8.5 One of Rosemary Nelson’s clients was the family of Robert Hamill, kicked to death by a loyalist crowd in 1997. RUC officers were present at the scene in a landrover, but did nothing to intervene. Misleading information about the incident was promulgated by the police, who claimed that there had been a set fight between two factions and that some of their officers had been injured. Alleged perpetrators interviewed at the scene by RUC officers were allowed to go home. Six men were arrested for the murder but only one, Paul Hobson, came to trial. Police evidence against him was so poor that he was acquitted of murder and convicted merely of affray. The coroner has said that he cannot hold an inquest because key witnesses are afraid to come forward. None of the RUC officers who failed to come to Robert Hamill’s aid have been prosecuted or disciplined. Robert Hamill has received no justice of any kind, and for that reason the Irish government and NGOs have called for a public inquiry.
Will the UK set up an independent judicial inquiry into the murder of Robert Hamill?
8.6 BIRW is also calling for an independent public inquiry into the death of Billy Wright, who was a notorious loyalist leader who was murdered by the republican paramilitary group, INLA, while he was a prisoner in the Maze prison in December 1997. Billy Wright’s name was apparently included in an official list of prison visits given to his murderers, who were able to smuggle guns and wire cutters into the prison. A vital security camera was out of action for some days before the murder, during which the killers were able to cut a hole in wire fencing. The prison officer manning the watchtower overlooking the murder scene was called down just before the murder against standing orders. The prison authorities were warned by their own officers that Billy Wright was a target, but continued to house prisoners from opposing factions in the same prison block. The government has refused to name the prison officer in charge of the jail at the time of the murder, and Billy Wright’s father has had to struggle to obtain information and copies of relevant documents. Other NGOs share our concerns about this case.
Will the UK set up an independent judicial inquiry into the murder of Billy Wright?
8.7 On the 23rd September 1996, sometime after 04:30 am, Diarmuid O’Neill was shot by a London Metropolitan Police Officer known only as Kilo, who was a member of a special police unit. Diarmuid O’Neill was a suspected member of an Irish Republican Army (IRA) Active Service Unit (ASU) operating from London. The ASU was planning a bombing campaign. Four other suspects were later convicted of terrorist offences. Diarmuid O’Neill, who was with two of these other suspects, was, like them, unarmed when he was shot. He was also attempting to surrender. The ASU had been under close surveillance for six weeks before the shooting, and the police should have known that they were unarmed. Media reports immediately following the arrest operation falsely suggested that the suspects had conducted a shoot-out with the police. The inquest lasted for three weeks. The jury found, by a majority of eight to two, that the police had been acting in compliance with the law on lethal force (please see 8.11), thus effectively rendering a verdict of lawful killing, after the coroner had invited them not to make Diarmuid O’Neill into a martyr and had refused an application by his family’s lawyers that the jury should be directed on the issue of Diarmuid O’Neill’s right to life.
Will the UK set up an independent judicial inquiry into the death of Diarmuid O’Neill?
8.8 We understand that public inquiries are only held in very serious cases raising matters of national public interest, but in our submission these cases raise just such issues. They all involve allegations of state collusion or the abuse of lethal force, and all have undermined respect for the system of justice in Northern Ireland and for the rule of law. There seems little prospect of a truth commission for Northern Ireland. These are landmark cases which, if they remain unresolved, will hamper the peace process. In 1995, the Committee made the following recommendation:
It also recommends that specific efforts be made to enhance in Northern Ireland confidence in the administration of justice by resolving outstanding cases and by putting in place transparently fair procedures for the independent investigation of complaints.
The UK has not implemented this recommendation. In May 2001 the European Court of Human Rights ruled in four cases: Jordan, Kelly & Ors, Shanaghan, and McKerr. In summary, they held that the investigations into the 14 deaths involved had not met the procedural standards set by A. 2 of the European Convention on Human Rights, which protects the right to life. The police investigations were not sufficiently independent of alleged security force perpetrators. There was insufficient investigation of allegations of collusion. The inquests did not constitute an effective investigation (please see 8.9 below).
What steps is the UK taking in the light of the rulings in Jordan, Kelly & Ors, Shanaghan, and McKerr v UK?
8.9 The practice and procedure in inquests in Northern Ireland falls far short of the standards laid down by the United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. Coroners have very wide discretion concerning the conduct of inquests, and can decide whether or not to hold an inquest and whether or not to summon a jury. Inquests have a very limited remit. They can only determine the identity of the deceased and how, when and where s/he died, and may not attribute responsibility for a death. There are no parties to an inquest, only interested persons, and the relatives of the deceased cannot insist on giving evidence at the inquest, nor insist on any other witness being called, nor can they cross-examine witnesses, but only ask them questions within the narrow remit of the inquest. Juries cannot come to a verdict, such as ‘unlawful killing’ (available in England), but can only make findings. Legal aid is not normally available, so the majority of families have no legal representation. Anyone suspected of causing a death, or who may be charged with an offence relating to the death, cannot be compelled to attend the inquest. Furthermore, those responsible for causing a death may submit unsworn statements as to their version of events, while refusing to attend or submit to cross-examination. The family of the deceased are not entitled to a copy of the post mortem report. Until recently, families were only allowed to see witness statements once they were put in evidence at the inquest, making it very difficult adequately to prepare for the inquest. Although evidence is given on oath at inquests, they are not bound by the strict rules of evidence, and hearsay evidence is admissible. Public Interest Immunity Certificates have been used to prevent the disclosure of information in the possession of the authorities, usually on grounds of national security. Many families experience years of frustration and delay, and in some cases, such as the death of Robert Hamill, there has never been an inquest. The Criminal Justice Review Team, set up under the Good Friday Agreement, recommended that there should be an independent review into the law and practice of inquests in Northern Ireland, which is currently taking place.
Will the UK undertake to implement in full the recommendations of the independent review into the law and practice of inquests in Northern Ireland?
8.10 Plastic bullets continue to be deployed in Northern Ireland. Plastic bullets, although theoretically a tool for crowd control, are in reality lethal weapons. They have been responsible for 17 fatalities in Northern Ireland, eight of which involved minors, and have also caused many very serious injuries and permanent disabilities such as blindness. Guidelines for their use in Northern Ireland have been frequently breached, with RUC officers being observed to fire indiscriminately, to aim at the upper body, to fire at too close a range and to fire without provocation or justification. Plastic bullets of too great a weight and too high a velocity have been used and weapons for firing plastic bullets have been defective. Enormous numbers of plastic bullets have been fired during disturbances such as those surrounding the events at Drumcree in 1996 and 1997. Many more plastic bullets appear to have been deployed against nationalists than against loyalists even though both groupings have been involved in serious public disorder. This is of particular concern given the mainly Protestant membership of the RUC. In 1998 the United Nations Committee Against Torture recommended “the abolition of use of plastic bullet rounds as a means of riot control”. In May 2000 the Northern Ireland Human Rights Commission published a report that is very critical of RUC recording of its use of plastic bullets. Recently, the government introduced a new version of the plastic bullet, which it claims is less likely to result in fatalities. However, experts suggest that it may actually cause more serious injuries than the previous type, because it is more likely to lodge in a wound, rather than ricocheting.
Will the UK discontinue the use of plastic bullets?
8.11 The right to life is not adequately protected by law by the UK government. The use of lethal force by the security forces in Northern Ireland is governed by s. 3(1) of the Criminal Law Act (Northern Ireland) 1967, which says that any person is entitled to use
“such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or of persons unlawfully at large”.
The domestic law compares unfavourably with Article 2 of the European Convention on Human Rights, which permits only the use of such force as is ‘absolutely necessary’ for the purposes of defending a person from violence, arresting a suspect, preventing an escape, or quelling a riot or insurrection. A member of the security forces who fires on and kills someone is also entitled to rely on the common-law defence of self-defence, where applicable. The courts, including the House of Lords, have given members of the security forces considerable leeway by virtue of their far from rigorous interpretation of the domestic law. From 1969 until the end of 1994, over 3,000 people died in Northern Ireland as a result of the conflict. These victims included 349 people killed by on-duty members of the security forces, representing over 10% of the total deaths. These deaths gave rise to prosecutions in 24 cases of 34 members of the security forces (7 RUC officers and 27 soldiers), only eight of whom were initially convicted. Only 5 of these convictions (three for murder and 2 for manslaughter) survived the appeal process. In 190 of the cases, or more than half, the victims were civilians with no history of paramilitary involvement. In a substantial proportion of all the deaths, including some of acknowledged paramilitaries, the circumstances are in dispute, and the figure of 24 cases giving rise to prosecutions is considered by all independent observers to be remarkably low. Of even more concern, however, if the very low conviction rate arising from those prosecutions which have been brought.
Will the UK bring its domestic law on the use of lethal force into line with international human rights standards?
9. ARTICLE 7: FREEDOM FROM TORTURE
9.1 On 10th February 1994 David Adams was arrested for a number of serious terrorist offences of which he was later convicted. During his arrest he was assaulted by up to six RUC officers. He suffered a number of injuries and should have been taken to hospital. Instead he was taken to Castlereagh, an infamous holding centre for those arrested under emergency laws, since closed, where he was further assaulted and his leg was deliberately broken by repeated kicking. Although a police doctor recommended that he be hospitalised immediately, it was an hour and three quarters before he was finally allowed medical treatment in hospital. David Adams was awarded £30,000 in personal, aggravated and exemplary damages after the High Court found that he had been assaulted by RUC officers and that some of those officers had lied to the court. However, the Director of Public Prosecutions decided not to prosecute any RUC officer. He also refused to give his reasons for that decision. An application for judicial review to force him to explain his decision was unsuccessful.
Will the UK explain why no RUC officer was prosecuted for the ill-treatment of David Adams?
9.2 Bernard Griffen, a 19-year-old Catholic, was arrested by an RUC patrol in west Belfast in February 1998. He was seriously assaulted in the back of the police landrover. He was subjected to sectarian abuse and his life was threatened. The police officers involved then alleged that he had been injured while resisting arrest and that he had assaulted them. Two soldiers also signed false witness statements. Eventually, one of the police officers involved had the courage to admit the truth to his superior, and the charges against Bernard Griffen were dropped in July 1998. The RUC officers involved were prosecuted and one of them was jailed for two years and the other for one year. However, in September 1998 Bernard Griffen, who has no record of paramilitary involvement, was the subject of a raid on his house by the RUC. The RUC claimed to have found an explosive device in the roofspace of the house, and Bernard Griffen and his brother were arrested. Bernard Griffen spent three months in custody before the charges were mysteriously dropped. His lawyers were unable to obtain a forensic report on the alleged bomb. In our view, this incident was clearly designed to discredit Bernard Griffen in his complaint against the officers who originally assaulted him, which he lodged immediately after his first arrest.
Will the UK explain why the charges against Bernard Griffen were dropped and why no RUC officer was disciplined or prosecuted for his second arrest?
9.3 Considerable improvements have been made in arrangements for scrutinising conditions in detention for those arrested in connection with suspected terrorism in Northern Ireland. On 19.2.2001, video recording with sound of police interrogations was introduced for those arrested under the Terrorism Act. The independent Commissioner for the Holding Centres in Northern Ireland has called for video recording with sound to be extended to all areas between cells and interviewing rooms, to prevent the possibility of ill-treatment or abuse taking place in such areas. We endorse that call, and, in view of Bernard Griffen’s case, hope that video recording will also be installed inside police vehicles. However, the arrangements for video and audio recording in Northern Ireland are very unwieldy. Although the video recording has the capacity to and does in fact record sound, a separate audio recording is also made of interviews. Separate codes of practice govern access to the video and audio recordings, and each is used separately for evidential purposes. A detainee who alleges that s/he was assaulted during an interrogation must therefore obtain both recordings and attempt to synchronise them.
Will the UK introduce video recording with synchronised sound for all interviews and into areas between cells and interviewing rooms and inside police vehicles?
10. ARTICLE 9: LIBERTY AND SECURITY OF PERSON
10.1 In February 2001 the Terrorism Act 2000 replaced the previous, allegedly temporary, emergency laws, the Prevention of Terrorism (Temporary Provisions) Act, which covered the whole of the UK, and the Northern Ireland (Emergency Provisions) Act, which only applied in Northern Ireland. The Terrorism Act is permanent. It creates a specific crime of terrorism. Terrorism is defined as the use or threat of serious violence against people or property in order to influence the government or intimidate the public or a section of the public for the purpose of advancing a political, religious or ideological cause. It also includes such actions if they endanger life, create a serious risk to public health or safety, or are designed to interfere with electronic systems. This very wide definition shows how difficult it is to define terrorism and to differentiate the many forms it can take from ordinary crimes.
10.2 In our view, the Terrorism Act is unnecessary. It is a sledgehammer to crack a nut. Terrorism in Northern Ireland, while still a threat, does not entail any activity that cannot be dealt with by the ordinary law. Other terrorism is virtually non-existent. The Terrorism Act enshrines in English law a permanent legacy of the so-called emergency laws enacted in response to the conflict in Northern Ireland. It creates a twin-track system of justice with fewer due process rights for certain suspects and defendants determined by the supposed motivation for their acts. So far as Northern Ireland is concerned, it perpetuates, subject to an annual review, the previous emergency laws in most respects. In our submission, there is no state of emergency in Northern Ireland or elsewhere in the UK, and the Terrorism Act is unjustified.
10.3 There has been one improvement in relation to counter-terrorism law since 1995. Internment without trial has at last been removed from the statute book.
10.4 The government will also claim that it has finally brought itself into line with the European Convention on Human Rights by abolishing prolonged detention for those suspected of terrorism without production before a judicial authority, thus enabling it to lift its derogation under Article 9 (3). Under s. 41 and Schedule 8 of the Terrorism Act the police may only detain a suspect for up to 48 hours, after which an application must be made to a court, which can authorise prolonged detention up to a maximum of seven days altogether. Since these provisions only came into force in February 2001, it is early days to assess their impact. However, a solicitor in England has told us that magistrates are simply rubber-stamping police applications, and are awarding the maximum seven days without requiring further reviews. We are concerned about these provisions because experience in Northern Ireland shows that the RUC have used prolonged detention to put suspects under pressure to confess, leading to protracted contests in court when defendants, usually unsuccessfully, seek to withdraw confessions they say were obtained under duress.
10.5 The Terrorism Act defines a terrorist as someone who “is or has been concerned in the commission, preparation or instigation of acts of terrorism”. Thus there is no requirement that s/he is suspected of involvement in any specific offence. Experience of the predecessor emergency laws in Northern Ireland was that up to 75% of those arrested were released without charge each year. Many detainees reported that they had not been questioned about any specific crime, but had been pumped for intelligence about family and associates.
10.6 Detainees held under the Terrorism Act can be deprived by the police of the right to have their family informed of their arrest for up to 48 hours. Since access to legal advice can be deferred for a similar period detainees can effectively be held incommunicado for up to two days.
10.7 The Terrorism Act also provides that people arrested in Northern Ireland can only obtain bail at the discretion of a High Court judge. Those arrested under the ordinary law need only apply to the Magistrates Court. Those arrested under the Terrorism Act, even if they are very likely to get bail, must wait for a High Court hearing, which means that they are automatically detained in custody, for up to seven days, before bail is granted. Such administrative internment violates Article 9.
Will the UK repeal the Terrorism Act?
11. ARTICLE 10: PRISONERS TO BE TREATED WITH HUMANITY AND DIGNITY
11.1 BIRW continues to be concerned about the practice of strip-searching in UK prisons, which is a humiliating and degrading practice that can easily be abused so that it becomes intimidatory. Women in particular find strip searching intimidatory in itself.
11.2 While we understand that prisons need to ensure that weapons and drugs are not smuggled into jails, modern techniques such as metal detectors and non-invasive drugs testing should be able to deal with these problems. In our view, strip searching is unnecessary given modern technology and subjects both male and female prisoners to humiliating and degrading treatment. In 1995, the Committee said:
The Committee is also disturbed by reports of the continuation of the practice of strip searching male and female prisoners in the context of the low security risk that now exists and in view of the existence of adequate alternative search techniques.
Will the UK abolish strip-searching?
12. ARTICLE 14: THE RIGHT TO A FAIR TRIAL
12.1 Those tried under the Terrorism Act in Northern Ireland are dealt with in special courts known as the Diplock courts. These courts employ lower standards of admissibility of confession evidence than the ordinary courts and sit without a jury. Both these factors militate against a fair trial.
12.2 In Northern Ireland confession evidence is admissible in the Diplock courts unless it was obtained under torture, inhuman or degrading treatment, or violence or threat of violence, whereas in England a confession must be excluded unless it is proved beyond reasonable doubt, upon representations being made, that it was not obtained by oppression or in consequence of anything liable to render it unreliable. Furthermore, in Northern Ireland the defendant must make a prima facie case that s/he has been tortured, thus reversing the burden of proof. The lower standard of admissibility in the Diplock courts must give rise to concern in view of the coercive regime in custody and the absence of adequate safeguards mentioned above.
12.3 Since the Diplock courts have no juries, a single judge acts as the tribunal of both fact and law. This leads to a quite untenable situation when the admissibility of a confession is contested. As with a jury trial, a voir dire is entered upon during which the validity of the confession and the means by which it was obtained are subjected to scrutiny. However, whereas a jury would be excluded from hearing these arguments, a Diplock judge not only hears them but adjudicates upon them. Should he (there are no female judges in the Diplock courts) decide that a confession is admissible, he must formally warn himself to disregard anything he heard during the voir dire that would in itself have been inadmissible in the trial proper. Should he decide that the confession is inadmissible, he must warn himself to disregard everything he heard during the voir dire, much of which may have been highly prejudicial to the defendant. Most voir dires in Diplock cases are very lengthy, and supercede the trial itself to the point where the voir dire becomes the forum in which the case is actually decided.
Will the UK abolish the Diplock Courts?
12.4 The right of silence was abrogated in Northern Ireland in 1988, when it became possible to draw inferences under the terms of the Criminal Evidence (Northern Ireland) Order from the silence of defendants, whether exercised under police questioning or at trial. The rules apply to all criminal trials, whether held in the Diplock or the ordinary courts. On 10.4.1995, similar rules came into force in England and Wales by virtue of the Criminal Justice and Public Order Act 1994. Both the court and the prosecution can comment on silence, and in Northern Ireland silence can be taken as corroboration of other evidence. In 1995 the Committee commented:
The Committee notes with concern that the provisions of the Criminal Justice and Public Order Act of 1994, which extended the legislation originally applicable in Northern Ireland, whereby inferences may be drawn from the silence of persons accused of crimes, violates various provisions in article 14 of the Covenant, despite the range of safeguards built into the legislation and the rules enacted thereunder.
In our view, the rules on the right of silence destroy the privilege against self-incrimination, reverse the burden of proof and undermine the presumption of innocence, thereby violating the right to a fair trial. The government’s own research, published in December 2000, shows that the conviction rate between 1992 and 1997 was completely unaffected by these rules, demonstrating that there have no actual benefit in combating terrorism and are unnecessary.
Will the UK repeal the provisions that allow the drawing of inferences from suspects’ and defendants’ silence?
12.5 The Terrorism Act permits a delay of up to 48 hours in allowing a detainee access to legal advice if a senior police officer reasonably believes that allowing such access will hinder the police investigation or alert others. The Act also allows the police to order that a detainee may only consult his or her lawyer in the sight and hearing of a police officer. Similar provisions were included in the predecessor emergency laws in Northern Ireland. In practice, these powers are beginning to fall into disuse, but we are concerned that they remain on the statute book and could be applied at any time to any case.
Will the UK legislate to allow all detainees immediate, private access to legal advice?
12.6 The rules on discovery in criminal cases are unduly weighted in favour of the prosecution. Defendants must disclose their defence to the prosecution in advance, and the prosecution controls the disclosure of evidence to the defence. Many miscarriages of justice have arisen in the past because of the failure of the prosecution to disclose evidence to the defence that would have assisted them. The government has been forced to set up, at very considerable expense, the Criminal Cases Review Commission, which examines alleged miscarriages of justice and has already referred a number of cases back to the Court of Appeal that have resulted in acquittals, often after innocent people spent years in jail. The laws on discovery are a recipe for further miscarriages, and should be repealed.
Will the UK abolish advance disclosure by the defence and allow the defence unfettered access to all prosecution material?
12.7 Certain newspapers in the UK have taken it upon themselves to campaign for the acquittal of members of the security forces accused of murder in Northern Ireland or for the conviction of persons suspected of terrorism. Such campaigns can seriously affect the right to a fair trial. For example, the Daily Mail has launched a fighting fund to bring private cases against four men named in a BBC TV Panorama documentary as being responsible for the bombing of Omagh in 1998, which killed 28 people. Two former Secretaries of State for Northern Ireland, Sir Patrick Mayhew and Peter Mandelson, have lent their names, and in the latter’s case made a substantial donation, to this campaign. Almost every newspaper in the UK and in Ireland has named Michael McKevitt as being the leader of the group responsible for the bombing, the Real IRA, and has implicated him in the bombing. In April this year he was arrested in the Republic of Ireland, not for the bombing, but on the somewhat amorphous charge of directing terrorism. It remains to be seen whether he will receive a fair trial.
What steps is the UK taking to ensure that media campaigns do not adversely affect the right to a fair trial?
13. ARTICLE 17: PRIVACY, FAMILY LIFE, AND REPUTATION
13.1 People living in Northern Ireland have been subjected to an exceptionally high level of surveillance. Sophisticated visual and audio devices have been used to track the movements of individuals and to listen to conversations inside homes and vehicles as well as in public places. Large amounts of intelligence are collated on people, often in the absence of any suggestion that they are involved in any illegal activity, and stored on computers. Innocent people have found themselves labelled as terrorists when stopped by, for example, traffic police in other countries. There have been many incidents, including recently, of people who were unaware that there was a file on them being visited by the police and warned that information about them has found its way into the hands of terrorists.
What steps is the UK taking to reduce surveillance of the population in Northern Ireland and to destroy intelligence files on individuals?
13.2 Defence lawyers in Northern Ireland have suffered what the Special Rapporteur on judges and lawyers described in his1998 report of his mission to the UK as consistent and systematic intimidation, hindrance, harassment or improper interference at the hands of the RUC. Two lawyers, Patrick Finucane in 1989 and Rosemary Nelson in 1999, have been murdered because they were identified with the alleged causes and crimes of some of their clients. Although the circumstances in which RUC officers can abuse lawyers have been curtailed by the introduction of video- and audio- recording of police interviews and the presence of lawyers during those interviews, there is no evidence so far of a change in police attitudes towards lawyers. For example, none of the lawyers whose names appeared on a loyalist website hitlist were warned by the RUC – a complaint has been made to the Police Ombudsman about this. Similarly, the RUC did not treat a solicitor’s fears about personal safety seriously, even though the solicitor is on the Key Persons Protection Scheme. The Special Rapporteur has called for public inquiries into the murders of both lawyers and has made a number of other recommendations to strengthen the position of lawyers, but the government has taken no resolute action to ensure their safety or to counter attacks on their reputations.
What steps is the UK taking to safeguard the role of defence lawyers in Northern Ireland?
14. ARTICLE 19: FREEDOM OF EXPRESSION
The Ministry of Defence has repeatedly taken out injunctions against former employees in an attempt to prevent them from talking about their work, and attempted to prosecute them under the Official Secrets Act. They have also taken out injunctions against newspapers and a television company to prevent them from printing information obtained from such sources. For example, a former employee of the Force Research Unit (please see 8.2 above) known as Martin Ingram was arrested under the Official Secrets Act and threatened with prosecution for ten months before the charges were dropped. Two newspapers who tried to print his allegations of serious crimes committed by the FRU, including murder, were injuncted. The Sunday People successfully fought its injunction, but the injunction against the Sunday Times still stands. The Ministry of Defence insisted on court hearings in camera and tried to expunge all record of the hearings and to prevent the newspaper from reporting that it had been made subject to an injunction. Ultimately the MoD was unsuccessful in imposing such a draconian level of secrecy, which is entirely inappropriate in a modern democracy. The MoD was successful in obtaining an injunction against Ulster Television, who wanted to broadcast a documentary about claims by former intelligence agents that they had been abandoned by the MoD. The Freedom of Information Act 2000, which is not yet fully in force, contains many exemptions and exceptions on grounds of national security.
Will the UK allow the publication of allegations of wrong-doing by its security services?
15. ARTICLE 22: FREEDOM OF ASSOCIATION
Under s. 3 and Schedule 2 of the Terrorism Act, membership of 35 organisations is proscribed. Fourteen of these proscriptions relate to Northern Ireland. Seven of these are republican groups: the Irish Republican Army, the Irish National Liberation Army, Cumann na mBan, Fianna na hEireann, Soar Eire, the Continuity Army Council and the Irish People’s Liberation Organisation. The other seven are loyalist groups: the Red Hand Commando, the Ulster Defence Association, the Ulster Freedom Fighters, the Ulster Volunteer Force, the Loyalist Volunteer Force, the Orange Volunteers and the Red Hand Defenders. The other 21 groups on the list are all based outside the UK. Although BIRW does not approve of proscription, we find it odd that no groups in other parts of the UK apart from Northern Ireland are banned, in particular the fascist group Combat 18, which has close links with Northern Ireland loyalists. Membership of proscribed organisations is a criminal offence, as is canvassing support or fund-raising on behalf of such a group. In our view, proscription is in itself anti-democratic and is largely counter-productive. For example, when the UDA was eventually banned the media reported that its membership increased considerably. In our view, these provisions, along with the Terrorism Act as a whole, should be repealed.
16. ARTICLE 25: DEMOCRATIC RIGHTS
Ten areas of government – trade, regional development, culture, social development, environment, finance, education, employment, health, and agriculture – have been devolved to the Northern Ireland Assembly, a directly elected body. However, the following areas have not been devolved: policing, security, prisons, crime, justice, international relations, taxation, national insurance, and the regulation of financial services, telecommunications and broadcasting. In these areas, Article 25 is violated by the system of direct rule of Northern Ireland by means of unamendable Orders in Council. This system of government, which is exclusive to Northern Ireland, deprives democratically elected Members of Parliament of the rights enjoyed by their counterparts elsewhere in the UK to debate and amend legislation, in turn disenfranchising the electorate of their right to participate fully in public affairs.