DRAFT of June 4, 1999

NORTHERN IRELAND: A REPORT TO THE
ASSOCIATION OF THEBAR OF THE CITY OF NEW YORK
FROM A MISSION OF THE COMMITTEE ON INTERNATIONAL HUMAN RIGHTS
[1]

     By Peter G. Eikenberry, Gerald P. Conroy, Barbara S. Jones, Barbara Paul Robinson and Sidney H. Stein

Introduction

      In April 1998, the world celebrated the signing of the "Good Friday Agreement" between the Republic of Ireland and the United Kingdom of Great Britain and Northern Ireland. With its promise of peace, the Good Friday Agreement affirmed the parties' commitment to "the civil rights and the religious liberties of everyone in the community,"[2]  and called upon those in authority to pledge to "serve all the people of Northern Ireland equally."[3]  The Agreement incorporates international human rights standards and contemplates the establishment of two important commissions: a Policing Commission to consider reforms in the Northern Ireland police force, and a Criminal Justice Review Body to consider reforms in the criminal justice system.[4] 

      At this historic juncture, the Committee on International Human Rights of The Association of the Bar of the City of New York sponsored a mission to Northern Ireland to examine the administration of criminal justice there. One purpose of the October 1998 mission was to follow up on an earlier Committee report (the "1987 Report")[5]  issued during a time of open hostilities and terrorism. With the promise of the Good Friday Agreement and the two already constituted Commissions, the 1998 mission went to Belfast and Dublin in the hope of formulating recommendations in accordance with international norms that might help promote a lasting peace.

      In contrast to the conditions described in the 1987 Report, the 1998 mission encountered a growing sense of optimism among the people we formally interviewed, as well as the "people in the street." Those we met - Catholic and Protestant, Unionist and Nationalist - were scarred and weary, but hopeful about the future. The mission returned to New York with an abiding respect for the people of Northern Ireland and their leaders, who were able to reach a peace accord after centuries of strife.

      As American lawyers, we recognize that our recommendations derive from our experiences with our own criminal justice culture, which has evolved over two centuries in a relatively peaceful environment. We have tried to be mindful of Northern Ireland's far different experience. Above all, this report reflects our firm belief that if well-intentioned people enact laws and build institutions that nurture human rights, the peace process is likely to succeed.

A Brief History

      At the time of the Association's first mission to Northern Ireland in May 1987, there were open hostilities. Two weeks before that mission arrived in Belfast, Lord Justice Gibson and his wife were killed by a bomb while riding in their car. The 1987 Report described portions of Belfast as a divided city:

     [P]arts of the city, the Falls Road and Shankill Districts in West Belfast, exist as armed camps with homes and shopping areas bombed out or blackened by recurrent fires. Meanwhile, in the hate ridden areas of the city, and in the central shopping district (where permits are needed for automobiles to cross military check points), local authorities and the ... Army patrol the streets in armored vehicles, make use of broad emergency powers of arrest and detention, and on occasion resort to the firing of plastic bullets into crowds of protestors deemed unruly.[6] 

     The 1987 Report then asked this question: "How could this be in a corner of the United Kingdom, a presumed bastion of democracy and civility?"[7] 

      Political and religious strife have been at the heart of the last four centuries of civil wars between and among Irish inhabitants and the government. Four hundred years ago, the northernmost of Ireland's four ancient provinces was the most fiercely militant Catholic and Celtic region. In 1603, however, Queen Elizabeth defeated certain Irish earls, and her successor, James I, encouraged Scottish Presbyterians to settle in the northern region, where they eventually suppressed the Catholic population. On July 12, 1690, the Protestant Prince, William of Orange, defeated deposed Catholic monarch James II, cementing Protestant English rule and Catholic subjugation for centuries to come. (To this day, thousands of Protestant Unionists march on July 12, often provocatively in Catholic areas, to celebrate Prince William's victory.) The Act of Union of 1800 formally incorporated Ireland into the United Kingdom.

      In 1922, after nationalist uprisings, the United Kingdom granted the 26 southern counties of Ireland "free state" status, and they became completely independent in 1949. Northern Ireland was established by partition that same year, with its government dominated by a Protestant majority. Religious discrimination in employment, housing and education was commonplace and led to heightened Catholic frustration.

      In 1968, after what began as peaceful civil rights demonstrations by the Catholic minority, violence erupted, and the army was called in to intervene. In response to the army's presence, Catholic nationalists increasingly supported their own more violent factions, and paramilitary groups grew in strength in the Protestant and Catholic communities. After four years of violence, the government of the United Kingdom suspended the Northern Ireland Parliament and imposed direct rule. As stated in the 1987 Report:

     The Catholic/Protestant dispute dominates political life in Northern Ireland, even as it does other aspects of national life. The insistence by unionists on merger with Britain and abhorrence of a united Ireland is matched by nationalist opposition to continued unionist domination.[8] 

     In response to the historic pattern of discrimination, the militant nationalists viewed piecemeal reforms as contrary to their objective of Irish reunification. They discouraged members of the Catholic community from participating in the country's civil service, police force and judiciary, thereby further excluding Catholics from positions of influence.[9] 

Present Condition

      It is not difficult to understand why the last three decades of violence - let alone the centuries of unrest that preceded them - have had a debilitating effect on the humaneness of the criminal justice system in Northern Ireland. The reminders of the hostilities are starkly apparent. The most arresting moments of our visit to Belfast were spent on a tour of West Belfast. An ugly, 30-foot-high "peace wall" towers over the rubble of what used to be housing, and divides the streets which once ran through two adjacent residential neighborhoods. In those neighborhoods and on their shopping streets, elaborate murals on brick walls depict hooded paramilitary figures with submachine guns or pictures of nationalist hunger strike martyrs.

      From the top of one steep hill, as a reminder of the army's presence, a huge fort hovered menacingly over rows of houses. Looming from the top of another hill, the "neighborhood" police station was housed inside a walled fortress. Hard work and a sustained effort over many years will be needed to eradicate fully the deep divisions still so physically evident in these communities. We believe this can be achieved, but only if sorely needed reforms are made to the institutions of justice and the police regain the confidence and respect of all.

      By the time we arrived in October 1998, the Good Friday Agreement had been ratified by 71 percent of the Northern Ireland people, followed by the election of a new Northern Ireland assembly.[10]  In the period ending just before our arrival in Belfast, we were told that the police traveled the city in armored vans, usually surrounded by foot soldiers carrying loaded rifles. We saw only two armored police vans during our visit; the army was invisible; and the police were in ordinary cars or on foot. One member of our mission jogged for an hour on the evening of our arrival without encountering a single police officer. During the week of our visit, the closing of the army fort in West Belfast was announced, we saw fresh peace graffiti scrawled over older hate messages, and peace themes had replaced paramilitary images on some of the large wall murals. Most significantly, the army was in the process of withdrawing from Northern Ireland.

The Emergency Laws

      As a result of the pervasive culture of violence, some form of "emergency laws" have been in effect in Northern Ireland since the early 1920's, with increasingly harsher laws enacted as the violence increased. Many observers have argued that these laws fail to comply with the international human rights conventions which the United Kingdom has signed. In its defense, the Government has relied on derogations made under human rights conventions for periods of emergency.[11]  The conditions we observed during our visit lead us to conclude that an emergency no longer exists in Northern Ireland that might justify departures from international standards. Although the peace is newly achieved and fragile, it is a fact of daily life.

      In December 1998, the United Kingdom Home Office and the Northern Ireland Office issued a White Paper entitled Legislation Against Terrorism (the "1998 White Paper"). The 1998 White Paper proposes permanent United Kingdom-wide legislation to combat terrorism and calls for the repeal of the Prevention of Terrorism (Temporary Provisions) Act 1989 (the "PTA") and the Northern Ireland (Emergency Provisions) Act 1996 (the "EPA").[12] 

      At the same time, the Government has warned that should widespread and sustained terrorist activity reoccur in Northern Ireland, it is prepared to introduce a limited range of temporary emergency provisions.[13]  Included among those measurers would be a continuation of the non-jury Diplock courts for trials of terrorist offenses, restrictions on bail, and lessened standards for the admission of confession evidence.[14]  The Government also has recommended the retention and incorporation into ordinary (i.e. non-"emergency") law of the current PTA provisions that entitle the police to hold a suspected terrorist for 48 hours before granting him access to a solicitor[15]  and has invited comments on whether to retain the provision that entitles the police to hold such a person for 7 days before lodging charges or releasing him.[16]  In doing so, the Government has rejected the argument that the ordinary criminal law, as it now exists, is sufficient to cope with terrorism.[17] 

      While the 1998 White Paper may represent genuine progress, we are troubled by the continuing distinction between the rights accorded to suspected terrorists and those accorded to other suspected criminals. A commitment to equal treatment is an important structural guarantee of liberty. Where laws apply equally to mainstream and radical constituencies, unwarranted incursions on civil liberties are far less likely to occur. We believe that this principle of equality is the surest safeguard of fundamental freedoms.

The 1998 Human Rights Act

      The enactment of the 1998 Human Rights Act gives us considerable hope.[18]  The Act incorporates the European Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention")[19]  into the domestic law of the United Kingdom. When the 1998 Human Rights Act becomes fully effective next year, courts in the United Kingdom will play a new and more active role in insuring compliance with international human rights standards. Although the courts will not be able to void an act of Parliament, they will be empowered to determine whether the Government's proposed terrorism legislation is compatible with the Convention.[20]  All other statutes and criminal practices will come under scrutiny as well, with courts empowered, in these instances, immediately to reform practices illegal under the Convention.[21] 

The Northern Ireland Criminal Justice System

The 1987 Report emphasized the importance of pre-trial procedures to the fair administration of the criminal law:

     Because arrest and detention are the points at which the security interests of the government conflict directly with the liberty interests of the individual, it is not remarkable that police authority in these spheres is a point of substantial tension, and one which has drawn, and continues to warrant, close scrutiny. The same can be said of the interrogation process as authorized by law and as conducted by the police. As is true of any criminal justice system, what transpires in one or more of these preliminary phases of the criminal process can also affect seriously the fairness and integrity of the trial process once the decision is made to prosecute an arrested individual.[22] 

      We went to Northern Ireland knowing that throughout "The Troubles," there had been widespread criticism of human rights abuses, particularly in connection with arrest, detention and interrogation procedures. The perception of widespread abuses in Northern Ireland has been focused heavily, but by no means exclusively on, the Royal Ulster Constabulary (the "RUC") which has been given enormous powers under the emergency laws. The RUC has had, and continues to have, virtually unfettered discretion in connection with the arrest, detention and interrogation of suspected terrorists.

Arrest

      Section 14(l)(b) of the PTA empowers the police to arrest without a warrant anyone whom there is reasonable grounds to suspect is, or has been, "concerned" in the commission, preparation or instigation of acts of terrorism. This power runs afoul of Article 5.l.c of the Convention, which requires "reasonable suspicion of having committed an offence" as the predicate for a lawful arrest. Being "concerned in the commission of acts of terrorism" is not an offense under United Kingdom law and seems too vague a standard to state an offense.

      Nonetheless, in drafting proposed new terrorism legislation, the Government makes plain its intention to maintain the 14(1)(b) arrest power. It writes: "Given the nature of the continuing terrorist threat, and mindful that the police consider the 14(1)(b) power of arrest of particular importance in countering terrorism, the Government, while recognising the concerns surrounding a section 14(l)(b) type power of arrest, is inclined to the view that a similar power should be included in the proposed new legislation."[23]  The Government believes that 14(1)(b) is consistent with the Convention. It points to the decision in Brogan v. United Kingdom, in which the European Court of Human Rights (the "European Court") found that an arrest made under 14(1)(b) did not contravene Article 5.1.c.[24]  In Brogan, however, the Court emphasized that the detainees were suspected of specific acts of terrorism, each of which was an offense under the laws of Northern Ireland.[25]  Brogan does not support the Government's position that 14(1)(b) is good law in all instances.

      We believe that adopting a more objective standard for arrests would enhance public confidence in the police. The current 14(1)(b) arrest power, unlimited by specific offense conduct, gives police officers free rein to detain and interrogate people. Although the Government states that the arrest power has not been abused,[26]  this perception is not universally shared. Indeed, statistics suggest that the RUC "over arrests." Sir Louis Blom-Cooper, the Independent Commissioner for the Northern Ireland Holding Centers, has reported that "seventy-five percent of all detainees [charged with terrorist offenses] are discharged from custody without being charged at all."[27]  In 1997, "of the 525 terrorist suspects detained [in holding centers only] 141 (27%) were subsequently charged with criminal offences."[28]  The comparable numbers in 1998 were 566 arrested and 131 charged (23%). [29] 

      The fact that such a small percentage of detainees are subsequently charged with crimes casts doubt on the propriety of most of these arrests. A widespread practice of arrests without charges, which enables the police to detain and interrogate individuals without any significant judicial oversight, is a violation of Articles 5.1.c, 5.2, 5.3 and 6.3.a of the Convention. Adoption of an objective standard for terrorist arrests would itself serve to enhance public confidence in the police.

Detention and Delay of Access to Counsel

      Following arrest, persons suspected of terrorism continue to be treated differently than persons suspected of other crimes. Suspected terrorists may be detained longer than others before judicial authorization is required, may be held incommunicado, and may be denied access to counsel for longer periods.

      Under current law, a suspected terrorist may be detained without access to counsel for forty-eight hours without being charged with an offense.[30]  If the police wish to detain a person for a longer period, they must apply to the Secretary of State who is empowered to extend the detention period by up to five more days.[31]  The Secretary of State appears to uniformly grant the request. In 1998, there were 125 requests, all of which were granted.[32]  During the seven-day detention period, the police need not justify a detention to a judicial officer. In contrast, the average time spent in detention before a remand hearing by a person arrested for a non-terrorist offense is six hours.[33] 

      Under Article 5.3 of the Convention, arrested defendants must be brought promptly before a judge or other officer authorized by law to exercise judicial power. Although the Convention does not define "promptly," judicial decisions give content to the term. In 1988, the European Court found that detention for four days and six hours without judicial authorization was in contravention of the Article.[34] 

      In the newly proposed anti-terrorism legislation, the police would retain the right to detain a suspect on their own authority for 48 hours.[35]  In deference to the Convention's requirement of judicial authorization, however, the Government has proposed various models for replacing executive with judicial authorization for extensions of the detention-without-charges period beyond the 48-hour mark.[36]  The Government's preferred model is an independent commission constituted by some combination of sitting and retired judges and magistrates.[37]  Such a commission, we believe, could comply with the Convention. We disagree, however, with the Government's view that the police should be entitled to 48 hours before the commission's review must take place. Since this period equates with the amount of time a detainee may be held incommunicado, we believe the ordinary criminal law limit of 36 hours is preferable.[38] 

      During the initial detention period, not only are the police free from judicial oversight, they are unchecked by the presence of defense counsel. For the first 48 hours, the police may refuse the suspect access to a solicitor, and two officers (who will be permitted later to corroborate each other's testimony) can interrogate him.[39]  So lengthy a period of incommunicado detention seems unnecessary. Statistics demonstrate that access to a solicitor is rarely denied in the rest of the United Kingdom;[40]  in fact, the power to delay has not been exercised in the past two years outside of Northern Ireland.[41]  Even in Northern Ireland, the power is now used sparingly. Government figures show that in 1997, access was denied in only 33 of the 512 cases where a request was made.[42]  These statistics undercut the purported necessity to treat suspected terrorists differently than other suspects.[43] 

      Finally, we commend the Government for the proposed removal of one significant disparity between the treatment of suspected terrorists in Northern Ireland and those elsewhere. Currently under the EPA, the police may restrict a detainee's access to his solicitor for an additional 48 hours after the initial period.[44]  Moreover, the detainee has no right to have his solicitor present during police interviews, even after the two 48-hour periods have passed.[45]  The Government proposal would repeal these EPA provisions and thereby promote adequate legal representation and the protection against self-incrimination that it affords.[46] 

Detention Centers

      There have been ongoing calls to close the now infamous special detention centers at Castlereagh and Armagh, where those detained for terrorist activity have been held. These facilities were originally police offices and were not intended to house prisoners. In his First Annual Report (1993), Sir Louis Blom-Cooper, the Special Commissioner for the Holding Centers described the physical conditions in these holding centers:

     Being for the most part without access to daylight or natural ventilation, the physical conditions at Castlereagh and Armagh are, to employ moderate language, austere and forbidding. The size of each unit of cellular accommodation for holding centre detainees is altogether too confined a space.[47] 

And in July 1995, the U.N. Human Rights Committee commented as follows:

     Note is taken of the Government's own admission that conditions at the Castlereagh detention centre in Northern Ireland are unacceptable and concern is therefore expressed at the Government's admission that it has not decided definitively to close the facility. . . . The Committee further recommends that the Castlereagh detention centre be closed as a matter of urgency. (Emphasis supplied.)[48] 

      Even during times of emergency, international law prohibits inhumane treatment of those detained for suspected criminal activity.[49]  With the peace process underway, the time has come for the detention centers to be closed. Given their ignoble role throughout The Troubles, the closing of the centers would be an important symbol to the Northern Ireland people.

The Remand Hearing

      After arrest, the detainee must either be released or brought before a magistrate within seven days for a remand hearing at which the charges against him must be presented.[50]  This is not a bail hearing, but is intended to permit the magistrate to determine whether the suspect's continued detention is lawful. We have previously noted our concerns about the ability to detain people for suspicion of non-offense conduct and the time limits for detention of suspected terrorists before a remand hearing is required. The concern addressed here relates to the inadequacy of the facts that must be provided to the magistrate at a remand hearing, in order to justify continued detention. In our view, the quantum of evidence deemed acceptable for this purpose is insufficient and violates the requirements of the Convention. Under present practice, judicial review does not even focus on the sufficiency of the evidence to warrant continued detention, but rather on whether the police need additional time to investigate their suspicions before bringing charges. This standard has the unacceptable effect of permitting lengthy detentions in numerous cases where the police simply lack sufficient evidence to prosecute a suspect for a crime.

      Article 5.3 of the Convention, as previously mentioned, requires that an arrestee be brought promptly before a judge, and Article 5.4 entitles him to "take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." Implicit in these provisions is the fundamental notion that sufficient facts must be presented to the judicial officer for him to make a neutral analysis concerning the legality of continued detention. In practice and decisional law, however, the amount of information sufficient to remand a suspected terrorist in Northern Ireland falls far short of this standard.

      In In Re Valente's and Baker's Applications, the High Court of Justice of Northern Ireland ruled that at a remand hearing, a police officer need only swear under oath "that he believes that he can connect the accused with the crime with which he is charged."[51]  If the police officer makes this conclusory statement, the detainee can be remanded until the preliminary inquiry where he must be provided with at least some evidence against him. The accused has no right to cross-examine the officer or otherwise look behind his averment. The Court explained its decision this way:

     [T]he real object of [the applicants' solicitor] in attempting to cross-examine the investigating officer was to ascertain the nature and details of the evidence against the applicants. We held in In Re Kerr's Application [1997] NI 225 that the solicitors for an accused person were not entitled at remand stage to require the Crown to furnish particulars of the nature and details of the charges against him. . . . It is a matter for the discretion of the magistrate conducting a remand hearing to decide in any given case whether he is satisfied with the standard evidence that the investigating officer believes that he can connect the accused with the charge or charges against him. If he is so satisfied, he is not bound to permit a solicitor appearing for an accused to cross-examine the officer on the nature of the evidence. Indeed, to allow this would be to stultify the rule in In Re Kerr's Application and the court should generally refuse to permit it to continue.

      The decision in In Re Valente's and Baker's Application renders the remand hearing a mere formality. Indeed, without an evidentiary review, the Government can avoid ever having to demonstrate a basis for an arrest if it eventually elects not to prosecute the suspect. Two examples illustrate the potential for abuse: Robert Kerr, the applicant in In Re Kerr's Application,[52]  was released without a preliminary inquiry after being incarcerated for more than eight months, and Colin Duffy has spent, cumulatively, over five years in detention since 1989. Though convicted and incarcerated from 1994 through 1996, Duffy was acquitted on appeal. His last arrest was in June 1997, and he was released in early October 1997 without having had a preliminary hearing.

      An independent public inquiry into the evidentiary basis for arrest and continued detention is a necessary component of a fair system of criminal justice. Even an in camera submission of evidence to a magistrate would be a marked improvement over current practice; it would strengthen judicial review and protect a suspect's liberty interest without forcing the Government to share its evidence at an early stage in the case. Such an in camera review should be reserved for cases where the Director of Public Prosecution (the "DPP") can specifically demonstrate a need for confidentiality.

      Notably, there is reason to hope that the proposed judicial commission may provide more meaningful review of detention decisions. The very fact that the commission would be independent of executive authority may result in a less deferential review. Moreover, Section 8.14 of the 1998 White Paper proposes that the detainee "be given a summary of the case against him" at the hearing and presented with the "police's reasons for seeking an extension of detention in his case." While it is not clear how much evidence the police would be required to disclose, the commitment to present a "summary of the case" represents progress in this area.

The Preliminary Inquiry

      Should the Government elect to prosecute the detainee, a preliminary inquiry must be held. The inquiry is often the first occasion for the suspect and his solicitor to obtain information about the Government's case. Approximately one week in advance, the solicitor receives a notice of the preliminary inquiry, which includes some details concerning the evidence against her client. Under current practice, however, the scheduling of the preliminary inquiry itself is largely a function of when the RUC deems its investigation complete. Six to eight months may elapse between the remand hearing and the preliminary inquiry, and while the magistrate may set an earlier date, that power is rarely invoked. Given the importance of this proceeding, the lack of any time limit within which the preliminary inquiry must occur is cause for serious concern.

Trials in Diplock Courts

      In 1972, the Parliament established a commission, chaired by Lord Diplock, to consider the administration of criminal justice in Northern Ireland for persons accused of terrorist activities. The Diplock Commission submitted its report to Parliament in December of that year. The report recommended that a vast array of crimes "which are commonly committed at the present time by members of terrorist organizations" be tried by a judge without a jury.[53]  The commission cited two concerns -- perverse verdicts and juror intimidations -- in support of its recommendation, although it acknowledged that instances of either were relatively rare. The report also noted that then-existing property qualifications for jury service resulted in Protestants being present on juries in numbers greater than their proportion of the population.[54] 

      The Diplock Commission's recommendations were enacted in the Northern Ireland (Emergency Provisions) Act 1973. Since then, non-jury trials of specified offenses have occurred in Northern Ireland, with judges obliged to articulate the reasons for their factual findings on the record. This much-criticized provision has been modified slightly since 1973. Most notably, certain crimes, including murder, manslaughter and robbery, may now be "certified out" of non-jury Diplock courts for trial by jury, but only at the discretion of the Attorney General.

      In 1984, Sir George Baker was appointed by the Parliament to review the Diplock Courts and reported that the "time [was] not ripe for the return of jury trial for scheduled cases."[55]  Citing practical considerations, he rejected alternative fact-finding procedures, such as trial by multi-judge panels or by a judge assisted by lay assessors.[56]  More recent reports have been more optimistic about the prospect for restoration of a jury trial right. Writing in 1996, Lord Lloyd foresaw a time when it would be possible to bring the justice system in Northern Ireland into line with that in the rest of the United Kingdom.[57]  His report recommended transitional measures, such as a presumption in favor of jury trials that would still permit the Attorney General to certify a case for a non-jury trial on application of the prosecution or defense.[58]  Lord Lloyd also suggested the possibility of trial by jury for all offenses with special safeguards for jurors in terrorist-related cases.[59]  More recently, the Government's 1998 White Paper announced a commitment to move as rapidly as circumstances allow to jury trial for all offenses.[60] 

      Many creative ideas have been advanced to safeguard jurors in terrorist cases. In 1986, for example, Professors Greer and White proposed a detailed scheme to protect the identities of jurors.[61]  Jury panels would be drawn from throughout Northern Ireland; panelist's names would be kept secret; and jurors would be concealed from the public in the courtroom. To reduce the risk that jurors might be recognized leaving the courthouse, a mini-van would transport them to a random site selected by a court officer other than the driver. Other possibilities for juror protection include sequestration of jurors or a change of venue in appropriate cases. Plainly, it is better to employ such protection measures when necessary than to abolish altogether the right to a jury trial in specified-offense cases. Presumably, only a handful of cases would generally require the jury protection devices. We advocate an immediate return to the jury trial, a right enjoyed by all citizens of the United Kingdom not being tried for alleged terrorist offenses in Northern Ireland.

Right Against Self-Incrimination

      Among the rights recognized by human rights conventions is the privilege against self-incrimination. The right is set forth in the International Covenant on Civil and Political Rights[62]  as well as in decisional authority interpreting the Convention. In John Murray v. United Kingdom, for example, the European Court announced that the right to silence was a "generally recognised international standard [ ] which lie[s] at the heart of the notion of a fair procedure. . . ."[63]  Two legislative acts in the United Kingdom arguably conflict with this fundamental right: (I) the Criminal Evidence (Northern Ireland) Order 1988, which allows the court or jury to draw an adverse inference from a suspect's failure to answer police inquiries or testify at trial;[64]  and (ii) the EPA, which admits a defendant's confession in certain circumstances unless he presents prima facie evidence that it was obtained by torture, inhuman treatment, or degrading treatment or by any violence or threat of violence.[65] 

      Of the two provisions, the adverse inference rule has withstood judicial challenge. In Murray, the European Court upheld a Diplock judge's drawing an adverse inference from the defendant's silence.[66]  The majority, however, limited its holding to the specific facts of the case: the defendant had been cautioned that his silence might be used against him; the evidence showed he understood the caution; he was not punished by conviction or contempt of court for choosing to remain silent; the trier of fact, an experienced judge, had specified his reasons for drawing an adverse inference; and the weight attached to the defendant's silence had been articulated and was subject to review.[67] 

      In our view, current law and practice show too little regard for a suspect's self-incrimination right. A 1983 study, for example, found that 89 percent of those convicted in Diplock court cases had confessed to their crimes.[68]  That percentage is remarkably high by any standard and suggests that suspects are routinely being subjected to undue coercive pressure. Others who have studied the Northern Ireland system have expressed this concern, pointing to the "institutionalized use in Northern Ireland of strong psychological pressure on suspects in order to induce them to confess" that appears to violate international norms.[69]  Moreover, Diplock Courts are prone to give more weight to a suspect's silence than is fairly warranted in the circumstances.[70] 

      The 1998 White Paper voices concern about a proposal that would require a Diplock Court to accept as proven the possession of guns and explosives in certain circumstances unless the defendant can establish that he had no knowledge or control of the items.[71]  The White Paper concludes that it is not "right to contemplate a requirement on the defendant to prove his or her innocence [which would] depart from the fundamental presumption of innocence in our law."[72]  It also notes that "any change to the law would need to comply with the [Convention] and, in particular, the requirement for a fair trial in any particular case."[73]  Similarly, the White Paper acknowledges "serious [Convention] constraints" with respect to a proposal to create a new substantive offense of refusing to answer questions in defined circumstances.[74]  Given these welcome acknowledgments by the Government, there is reason to hope that standards protecting the right against self-incrimination will form an essential part of the criminal law reforms in Northern Ireland.

Appeals

      Appeals are considered in the first instance by a panel of the Court of Appeal. A defendant may seek further review by the House of Lords, but only on questions of law and with permission of the Court of Appeal or the House of Lords itself. Once this process is exhausted, a defendant may appeal to the European Court in Strasbourg. At present, domestic courts do not have the power to adjudicate a defendant's claim that his or her rights were denied under international law by enforcement of a statute passed by Parliament. To obtain review, the defendant must pursue an appeal to the European Court, where he or she is likely to face lengthy delay due to the European Court's backlog of cases. This limitation on domestic review will end in 2000 when the 1998 Human Rights Act takes effect, to the extent that a court in the United Kingdom will be empowered to make a finding of incompatibility between a statute and a Convention standard.

Two Case Studies

Two case studies reveal the workings of the Northern Ireland criminal justice system during the Troubles and underscore the need for reforms.

Robert Kerr's Case[75] 

      Robert Kerr was arrested on November 7, 1996, upon suspicion of being "concerned in the commission, preparation or instigation of acts of terrorism." A search of his house allegedly revealed information on computer disks that "might form material for the planning and execution of terrorist attacks or the [ ] training of terrorists." Kerr was taken to the notorious Castlereagh detention facility, where he was "interviewed at length" for seven days. He remained silent despite being cautioned that an adverse inference could be drawn from his unwillingness to cooperate. On November 14, 1996, he was charged with possession of material useful to terrorists and conspiring to collect such material.

      On November 20, 1996, Kerr's solicitor wrote to the prosecutor requesting details supporting the charges. The letter emphasized that: "[a]t the first remand, the Officer in charge declined to give details of the evidence he was relying on to connect the accused to the charges [but said only] that he was relying on `physical evidence, documentary evidence, forensic evidence and circumstantial evidence.'" One week later, the authorities responded:

     [The police believe] it would be inappropriate at this very early stage of their lengthy enquiries to indicate the nature of the available evidence, other than to confirm that it includes information stored on computer. Whilst you undoubtedly are anxious to have as full a picture as possible in order to advise your client, the sensitive nature of the type of information of which he is alleged to be in possession means that at present police are reluctant to divulge any details which might compromise their investigation. I hope that this assists you.

      On January 29, 1997, Kerr's solicitors again wrote seeking details and received a similar response. A Detective Chief Inspector later explained: "The investigation during the course of which [Kerr] was arrested was a sensitive one and has continued since his arrest. . . . [T]here was reluctance on the part of the police to disclose in undue detail the nature of the evidence upon [ ] which the charges preferred against [him] were based." On February 12, 1997, Kerr was re-interviewed by the police and was shown computer printouts of material seized from him, but he remained silent as before.

      In July 1997, the High Court reviewed Kerr's detention, which was then still ongoing. It wrote:

     On being arrested a suspect is entitled to be told the grounds for his arrest, and it is not in dispute that the arresting officer discharged this duty in the present case. After he is charged he must be brought before the magistrates' court. It will be the duty of the court in due course to hold a preliminary inquiry or preliminary investigation into the offence or offences with which he is charged, and if satisfied that there is a prima facie case on any charge to commit him for trial on that charge. Inevitably in cases of any substance the police investigations may not be complete and materials constituting the case on which it is sought to commit the accused for trial may not be ready for presentation. In the large majority of cases, accordingly, the prosecution will ask the court to adjourn the case and the court on doing so will remand the accused. . . . [W]hen it remands an accused the court does not have to take evidence connecting him with the offence. It will normally satisfy itself that there is sufficient reason for it to remand him . . . . In practice this is generally done by the investigating officer informing the court on oath that his inquiries are continuing and that he believes that he can connect the accused with the offence.

      In summary, after arrest on November 7, 1996 Robert Kerr was held in the Castlereagh detention center and interrogated without a warrant for seven days before he was brought before a magistrate for a remand hearing. At the remand hearing he was remanded without an examination of the legality of the case against him. As of July 8, 1997 - the date of the Kerr opinion - Kerr had been in custody exactly eight months and, according to the opinion, had yet to have a preliminary inquiry. Nor was Kerr ever given a preliminary inquiry before his release.

      Although Robert Kerr apparently relied on common law rights, in the 1998 case, In Re Valente's and Baker's Application, the applicants relied upon international law standards. Nevertheless, in In Re Valente's and Baker's Application the court denied the applicants' relief, finding that the court was bound to follow the precedent of In Re Kerr's Application.

      In examining the holdings of In Re Kerr's Application and In Re Valente's and Baker's Application, it seems apparent that the detainees' rights under the Convention were violated in several respects. Article 5.1 requires a person arrested to be informed clearly of the reason for arrest and no one is to be arrested or detained without the "purpose" of bringing him before a legal authority on reasonable suspicion of having committed a crime or being about to commit one.[76]  (See also Articles 9 and 14 of the International Covenant on Civil and Political Rights.) (Under the 1998 Human Rights Act, the Convention is mandated to take precedence over any judicial precedent such as In Re Kerr's Application.) The prosecutor's passive role at the remand hearing, as revealed in the Kerr decision, appears to be violative of the affirmative duties of prosecutors as found in UN Guidelines on the Role of Prosecutors.[77] 

The Casement Park Murder Cases[78] 

      On March 19, 1988, two United Kingdom soldiers were murdered in West Belfast. The incident began when the soldiers, wearing plain clothes, drove into a funeral cortege in Casement Park that was taking place for a man who had been killed in a Loyalist attack on a funeral three days earlier. The two soldiers were seized from their car, beaten by the crowd, and thrown over a wall to the road below. From there, the soldiers were forced into a taxi and driven to a deserted lot. There the beatings continued, and two men took turns shooting the officers; neither man was apprehended.

      Three men -- Kane, Timmons and Kelly -- were among those arrested and charged with the murders. The Diplock Court judge found that Kane, who was partially deaf and allegedly mentally deficient, had been in Casement Park and had kicked one of the soldiers. Timmons was also found to have kicked one of the soldiers in the park and encouraged others to participate. Kelly was found to have helped send the soldiers off in the taxi after they were pushed over the park wall. Although Kelly denied being in the park, the court drew an adverse inference from his failure to testify to support the weak identification testimony against him. None of the three men was found to have left the park area.

      On these facts, the three men each were found guilty of murder and sentenced to life imprisonment. The Diplock judge relied upon "the law of common purpose" to support his verdict. A defendant may be found guilty under this theory in one of two ways:

     First, the defendant might have given assistance to a joint enterprise, the purpose of which was to commit murder. Alternatively, if the purpose of the joint enterprise was not to commit murder, the defendant might have foreseen that one of his co-planners could commit murder while pursuing their common purpose.[79] 

      None of the accused were even alleged to have conspired with the actual killers. Kane and Timmons made confessional statements that they later retracted, but which were admitted in evidence against them. The Diplock court found Kane, Timmons and Kelly to have been in Casement Park and to have aided in the grievous bodily harm to the soldiers, further reasoning that those accused must have contemplated the soldiers' murder as one possible outcome of their joint enterprise. Since murder did result, the judge found Kane, Timmons, and Kelly guilty of that crime. The rest of the United Kingdom population, not arrested in Northern Ireland under emergency laws, is entitled to at least the safeguard of a jury. It is doubtful that a fairly constituted jury would have reached the same verdict.

Implementation of the Good Friday Agreement and Recommendations

Background

      As noted above, the Good Friday Agreement calls for studies of policing and the criminal justice system. The Policing Commission is scheduled to report in the summer of 1999 and the Criminal Justice Review Body in the autumn. We were advised that the Review Body is considering proposals to modify the system on judicial selection and to redefine the role of the prosecutor, among other reforms.

     2. The 1998 Human Rights Act

      Under the Good Friday Agreement, direct rule by Parliament will cease and matters will "devolve" to local authorities in Northern Ireland, but the 1998 Human Rights Act "will take precedence over" any acts of the Northern Ireland legislature (or any common law right); that is to say, no court will be able to "act in a way which is incompatible with a Convention right."[80]  When the 1998 Act becomes effective in 2000, courts will have the power in criminal trials "to stay a prosecution as an abuse of process, to recognise new defences, to quash an indictment, to direct a jury that [it] should not draw adverse inferences from a defendant's silence, [or] to exclude evidence. . . ."[81] 

      The Act does not permit a judge to void a law of Parliament on the ground that it conflicts with the Convention, but it does require a court to interpret a law to be compatible with the Convention "[s]o far as it is possible to do so" and authorizes it to make a finding of "incompatibility" when an irreconcilable conflict exists.[82]  Such a finding is designed to provide impetus to remedial action. Thus, the Act provides a "fast track" route for amending legislation when a finding of incompatibility has issued.

      The significance of the 1998 Act cannot be understated. As regards the criminal law, for the first time:

     [d]efence lawyers will ... be able to argue that particular offences breach Convention rights such as the right to privacy (Article 8), or the rights to freedom of expression (Article 10), or assembly and association (Article 11). They will also be able to argue that a reverse onus clause breaches the presumption of innocence in Article 6(2); or that the ingredients of a common law offence were insufficiently clear and specific to enable the accused to know, at the time he committed the offence, that his conduct was in breach of the criminal law (contrary to Article 7).[83] 

     Most importantly, the courts must test current arrest and pre-trial procedures against international norms and reconstruct them if they fall short of those standards. The courts may also reconstruct legislation, including using such extreme devices as the "jettisoning" of a word, if so doing permits interpretation of a statute in line with the Convention.[84] 

      The Northern Ireland judiciary has made clear that it welcomes the 1998 Act.[85]  Addressing a judicial training session, Lord Chief Justice Carswell stated:

     [T]he central purpose of the Bill is to allow people to enforce their rights under the European Convention on Human Rights in all our domestic courts and tribunals, rather than having to take their cases to Strasbourg - in other words, it brings rights home. . . . Over time we will see a culture of human rights develop at the heart of our systems of government and law. . . . The primary purpose of the Convention is to protect the citizen against the power of the State. We wanted to allow the Convention rights to be relied upon, and adjudicated on, in cases against public authorities in the United Kingdom's courts.[86] 

In sum, the 1998 Act is a key pillar in the program to reform criminal law procedures in Northern Ireland and to promote renewed respect for the law.

     3. The Judiciary

      The judiciary in Northern Ireland deserves credit for its courage and dedication. During The Troubles, several judges have been killed, and many have grown accustomed to living under armed guard. Nonetheless, there is a need to reform the system for the selection of judges so that it is more open and produces a more diverse bench. Especially with the expanded role of the judiciary under the 1998 Human Rights Act, it is imperative that the public have confidence in judicial appointments.

      The criminal courts in Northern Ireland are now divided between the Crown Court, which presides over indictable offenses, and the County Courts and Magistrate Courts, which hear lesser offenses. Trials before the Crown Court are heard by a judge and jury, except for "scheduled offenses" under the emergency laws which are heard by a "Diplock Judge" without a jury. (For civil cases, the High Court is the superior trial court.) As noted, appeals from the Crown Court are taken to the Court of Appeal, which is comprised of the same judges who sit on the Crown and High Courts. A three-judge panel hears the appeal. Thus, the findings of a Crown Court judge (including those in Diplock cases) are reviewed by a panel of his peers.

      Judges of the Crown Court, the High Court, and the County Court are currently appointed by the Queen upon the recommendation of the Lord Chancellor of the United Kingdom following advice from the Lord Chief Justice of the High Court in Northern Ireland. Generally, only barristers who have ten years practical experience are eligible for appointment, and only those who have been Queen's Counsel are considered. Solicitors or resident magistrates may be appointed to the County Court in certain circumstances. Women judges are rare. We were informed by the Lord Chief Justice that of the 26 justices on the High Court and Crown Court, none are women; of the 15 judges on the County Court, only one is a woman; and of the 17 magistrate judges only three are women.

      In practice, the Lord Chief Justice consults with selected members of the bar before arriving at his advice for appointments to the bench. The process would be more credible if there were more openness and public participation. A nominating commission, such as that used in New York State in connection with appointments to our Court of Appeals, would allow for greater public participation without compromising quality. If established, such a commission should include lawyers and non-lawyers and represent a broad spectrum of the community. By actively soliciting applications from a variety of sources, checking references, and interviewing leading candidates, the commission would help ensure that talented women and men of diverse backgrounds are given full consideration for appointment. Transparency and public accountability can be achieved through statistical reporting in which the need for confidentiality is respected.

      Whether such a commission would have the power of appointment or merely of recommendation to an appointing authority, the commission would substantially enhance the credibility of the process. To broaden the pool of applicants, the current requirements for appointment should be re-examined. Is the current prerequisite of 10 years practice experience necessary? Should only barristers who are Queen's Counsel be eligible to serve? These requirements should be reconsidered so that artificial barriers do not prevent otherwise qualified candidates from being chosen.

The Police

      To arrive at a fundamentally fair criminal justice system, Northern Ireland will need to overcome the deeply-ingrained heritage of deference to the police in cases concerning accusations of terrorism. This will not happen quickly or easily. The substantial authority of the police and their practices have not been questioned by the DPP or the courts. Historically, the DPP has played a very passive role in pretrial criminal justice procedures where much of the harm to the rights of the accused takes place. As noted above, most of those arrested and detained never come to trial. Judges accept the allegations of the police without scrutiny. If the 1998 Human Rights Act is to fulfill its promise, all of the participants in the criminal justice system - police, prosecutors and judges - will have to give up attitudes and practices long harmful to the rights of criminal suspects, and regulate their conduct in accordance with the rules of law set forth in the Convention and the other conventions to which the United Kingdom is party.

      There are now nearly 8,500 regular members of the RUC and an additional 3,200 full-time and 1,800 part-time reserve members.[87]  This police force serves approximately 1.5 million people. The only larger force in the United Kingdom is the Metropolitan London Police, which serves a population of more than 7.6 million. Until recently, the RUC has operated in conjunction with the armed forces, patrolling in armored vans accompanied by rifle-bearing soldiers. More than 90 percent of its members are Protestant.[88]  Clearly, in adjusting to peacetime status, the RUC will face conflicting objectives: it must be "downsized" at the same time that more Catholics are added as members.[89] 

      Because the police have functioned much like an occupying army, they have often abandoned their more traditional community policing function in many neighborhoods, sometimes in self-defense. In the void, paramilitary groups have become cruel enforcers of their own rules against members of their own community. Vigilante beatings of suspected thieves and kneecap shootings have been common occurrences. If public order is to be restored, the RUC must resume a more normal police function.

      The broad discretion afforded the RUC in combating terrorism has resulted in numerous civilian complaints. In 1997, approximately 5,600 public complaints were lodged against the police, of which only 14 resulted in formal charges, and only one in a finding of guilt.[90]  Plainly, these statistics underscore the need for an adequate mechanism to resolve such complaints. The task is a difficult one, as experience in our own city has demonstrated. Whatever the difficulties, however, a culture of administrative and criminal responsibility for police misconduct is essential. The 1998 Annual Report of the Police Federation reveals that only two out of the approximately 13,500 officers were dismissed from duty in 1998, the same number that were dismissed in 1997.[91] 

      Because the civilian complaint process has not been successful, complainants have resorted to the courts, bringing suits for assault, false arrest, and other abusive tactics. In 1997, the Police Authority paid œ 1.4 million to satisfy claims of police wrongdoing.[92]  One recent case is illustrative: in February 1998, in Adams v. Chief Constable of the RUC,[93]  the plaintiff was awarded œ 30,000 for injuries suffered at the hands of the police. The four constables who effectuated his arrest kicked and punched him and banged his face against a wall. He was hospitalized for three weeks, walked with crutches for weeks more, and suffered recurring headaches from the beatings.

      Reforms are underway to prevent actual and perceived abuses from occurring. Among them is the audio-recording of police interrogation of detained suspects. That practice, which has been commonplace in England and Wales for some time, has previously been resisted in Northern Ireland for fear that it would inhibit detainees from speaking against terrorist groups. Another salutary development is the establishment of a police ombudsman.

      That office is scheduled to be in place this summer, and has been allocated a œ 3 million budget for its operations.[94]  The budget appears much too small. The activities it replaces, which themselves were ineffective, were supported by a budget approximating œ 7 million.[95]  An adequately funded ombudsman is essential to permit the investigation of police misconduct complaints without reliance on police investigators whose independence would be in question. In our view, no reasonable expense should be spared to ensure a police force that the public has confidence is faithfully enforcing the laws.

The Prosecution

      The role of the prosecutor in Northern Ireland is dramatically different from that in New York City. During the early phases of a case, the DPP is passive in its relationship to the RUC; it does not promptly review charges for probable cause before an arrestee is presented to a magistrate, let alone involve itself in the decision to arrest in the first instance. As a result, most of what occurs during arrest, interrogation and detention takes place outside the DPP's scrutiny. Nor is the prosecutor's role at the remand hearing an active one; like the judge, he makes no independent assessment of the evidence at that stage.

      For less serious crimes, particularly outside Belfast, the DPP does not even conduct the prosecution; that responsibility is left to the supervising constable. And for more serious offenses, including terrorist crimes, the DPP does not involve itself in investigative efforts. Rather, it views its role as that of reviewing the facts objectively and sending the police back for more evidence when it finds a case wanting. The DPP may consider that interacting earlier and more frequently with the police will challenge its cherished image of independence. Yet we believe it is the DPP's responsibility. Broadening the prosecutor's role may well be an essential ingredient to building public confidence in the justice system.

      Comparing prosecutorial practice in Northern Ireland with that in our city is instructive. Our prosecutors' offices involve themselves at the earliest stages of important investigations being conducted by the police. In many instances, the officer will review the facts of a case with a prosecutor before making a warrantless arrest. To obtain a warrant, the officer must consult with a prosecutor who usually drafts the officer's sworn complaint which is then taken to a reviewing magistrate for issuance of the warrant. This complaint must set forth facts that demonstrate probable cause to believe that the crime for which a warrant is sought has been committed by the defendant.

      In New York City, the police must produce the arrestee for arraignment before a judge within 24 hours. Before arraignment can occur, the charges against the person are reviewed by a prosecutor who has interviewed the officer and assessed what charges, if any, are appropriate. The prosecutor reviews the charges for both probable cause and prosecutorial merit. Frequently, prosecutors downgrade the arrest charges from felonies to misdemeanors or disapprove some or all of the arrest charges. At arraignment, the magistrate reviews the complaint for probable cause and conducts a bail hearing.

      On occasion, New York City judges have released unarraigned prisoners whom they determine have been held too long beyond the presumptive 24-hour period. Obviously, a charge review system modeled on this one would greatly expand the current role of the DPP while providing guidance and supervision for the newly constituted police force in Northern Ireland. For all serious crimes the DPP would become a partner with the police, taking joint responsibility for the charges being lodged against the defendant.

      For less serious crimes, where currently the police constable is the prosecutor, a system modeled on our "desk appearance ticket" system could serve this purpose. Under this system, the arrestee would not be detained, but rather would be given a summons with a future date for a court appearance. This summons would contain a section where the officer would write out the charges and the facts supporting probable cause for the arrest. These arrests would then be reviewed by prosecutors who could, where warranted, decline to prosecute at the first appearance. Removing the RUC from the prosecution of minor offenses would require an increase in the staff of the DPP and the creation of some additional regional offices outside Belfast. The reduction in friction between police and misdemeanor arrestees, who constitute the vast majority of defendants, would translate into increased credibility for the police and the criminal justice system and would be well worth the cost.

      A screening system such as that described above would greatly expand the role of the DPP in assisting in investigations and guiding the police. With the incorporation of the Convention into domestic law, having prosecutors who have been trained in international norms at work early on a case will take on added importance.

Defense Lawyers

Status and Abuse of Solicitors: Patrick Finucane and Rosemary Nelson

      The legal profession in Northern Ireland, as in the rest of the United Kingdom, is divided into two sections: the solicitors who counsel clients, and the barristers who appear in court. Since the barristers become involved later in the criminal justice process, they are more removed from confrontation with the RUC. Given the deference paid the RUC by the courts and the prosecutors, it should come as no surprise that few solicitors are willing to represent suspects detained under the terrorist legislation, and that those who do are repeatedly harassed, threatened with death, and even murdered. Solicitors are virtually the only actors in the criminal justice system who, in representing their clients, directly oppose the RUC during pretrial procedures.

      Shortly before our mission, the United Nations Special Rapporteur on the Independence of Judges and Lawyers presented a report to the United Nations Human Rights Commission.[96]  It found that the RUC had engaged in a pattern of intimidation and harassment of solicitors with clients accused of terrorist offenses.[97]  In essence, some members of the RUC have identified defense solicitors with their clients and have been guilty of abuses toward both the accused and their lawyers.

      The Special Rapporteur also addressed the murder of solicitor Patrick Finucane, a defense lawyer for many individuals detained under the emergency laws. We interviewed law partners of Mr. Finucane, as well as other solicitors and barristers. Mr. Finucane was murdered by two masked gunmen in his home in front of his wife and children on February 12, 1989. He had been a successful lawyer, effective in his representation of terrorist detainees. In addition to condemning the intimidation of solicitors in Northern Ireland, the Special Rapporteur called for an independent judicial inquiry into questions surrounding the murder of Mr. Finucane, particularly the evidence of government collusion in the murder.[98] 

      Four weeks before Mr. Finucane's murder (for which a Protestant paramilitary organization claimed responsibility), a prominent member of Parliament had publicly complained of solicitors who were too sympathetic to the IRA. Mr. Finucane was also threatened by RUC officers during interrogation of his clients, who then reported those threats to Mr. Finucane. (The three high-ranking RUC officials whom we interviewed confirmed to us, as the RUC has previously confirmed to others, that there is no evidence that Mr. Finucane was associated with any paramilitary group.) To date, no one has been charged with the murder; the DPP has issued a direction of "no prosecution."

      In the ten years since Patrick Finucane's death, many individuals and groups throughout the world, including the Association of the Bar, have called for an independent judicial inquiry into the circumstances of his murder. In response, some have argued that there has been sufficient investigation, pointing to the two inquiries by the English police official John Stevens, who investigated allegations of collusion between the military and the RUC and paramilitary organizations, including allegations of such collusion in the Finucane matter. The Stevens reports, however, were not focused solely on the Finucane case. Only the first of the two reports was made public, and it in summary form. It is time to release the records of the Stevens reports on government collusion with paramilitary groups, including records dealing with the case of Pat Finucane.[99] 

      Because the role of solicitors is central to the protection of the rights of those accused, it is critically important that there be no harassment or intimidation that deters their vigorous defense of their clients. Ongoing doubts about the Finucane murder will continue to cast a shadow on those willing to assume that role today. For that reason, we believe it important that the Association continue to press for a full and open judicial inquiry into the Finucane case.

      On March 15, 1999, Rosemary Nelson, a well-known criminal defense solicitor, was brutally murdered when a car bomb exploded after she drove away from her home in Lurgan. The Red Hand Defenders, a loyalist paramilitary group, claimed responsibility. When we met with Mrs. Nelson, she told us of the many threats on her life and showed us, as an example, an anonymous letter with a June 1998 postmark. She also reported to us and to others police threats made through her clients to her. Not only had she advocated for the rights of those accused of terrorist crimes, both nationalists and loyalists, she had also been a representative of the Garvaghy Road Residents Coalition in their grievances against the marches through that neighborhood, especially the Drumcree parade.

      There has been a worldwide outcry against this despicable act, along with calls to bring the guilty to justice. Although a full-scale investigation has begun, it will be indispensable to an effective investigation to retain outside investigators independent of the RUC. It may be that the murder is solely the act of the paramilitary group that has already claimed responsibility, a group that would like to derail the peace process, and that the police were not involved. If so, the police should welcome the call for an independent investigation so that the results will have credibility. It would also be difficult to imagine how a RUC investigation can be effective in securing the cooperation of witnesses in view of the past allegations of police threats against Mrs. Nelson.

      A judicial inquiry into the murder of Mr. Finucane and a completely independent investigation of the murder of Mrs. Nelson are both necessary to change the climate of lawyer intimidation and to recognize officially the importance of an independent bar and its integral role in the criminal justice system of Northern Ireland. Mrs. Nelson's murder starkly demonstrates, if Mr. Finucane's murder already had not, that the inquiry must include an investigation into ongoing threats against lawyers. In a system so hardened to the acceptance of abuse of individual rights, the advocacy of lawyers is critically important. Responsible, independent advocacy offers the best hope for reversing the patterns of abuse of human rights that has been endemic in Northern Ireland. The judicial inquiry and the independent investigation are necessary to break the habit of tolerance of the abuse of lawyers as well as of the abuse of the rights of their clients.

      The greatest hope for bringing about the necessary cultural change towards recognition of the legal rights of the accused is the vigorous advocacy that must come from lawyers free of intimidation and with prompt access to those accused. Although barristers are critical to rights of those on trial and on appeal, it is the solicitors that play the most substantial role in defending the rights of those accused. They comprise the only group of lawyers fully involved with critical pretrial procedures where the rights of the accused have been largely ignored when the charge includes terrorism. Accountability for the murders of the two solicitors is crucial. In addition, there needs to be a realistic appraisal of what can be done to right the damage resulting from a sustained period of extreme violence.

The Legal Societies

      All solicitors in Northern Ireland are required to belong to the Law Society and all barristers to the Bar Council. Both organizations have come under criticism for their lack of support for beleaguered criminal defense solicitors, including Mr. Finucane and Mrs. Nelson. Because solicitors are most often subject to intimidation, one would expect the Law Society to have spoken out most forcefully, for example, in favor of a judicial inquiry into Mr. Finucane's death. At least until May of 1999, these expectations had not been realized. The news of the recent decision by the over seven hundred members in attendance at a special meeting of the Society - calling for by acclamation, a judicial inquiry into the death of Mr. Finucane and an independent investigation into the death of Rosemary Nelson[100]  - is heartening news.

      The Bar Council, too, had until recently been reluctant to address the issue of intimidation of lawyers, apparently fearing that "a political question would be involved" that might polarize its membership. The Council is justifiably proud that its Protestant and Catholic members have worked cooperatively throughout the years of The Troubles. Now that the Good Friday Agreement has been ratified, however, there is reason to hope that the Bar Council will become more outspoken on human rights matters. During our visit, its leaders expressed that expectation. Since our return it has established a Human Rights Committee, a salutary development, and called for a judicial inquiry into the death of Patrick Finucane.

      These positive steps by the Bar Council and Law Society can bear fruit only with concrete and continuing action by both organizations. The Society has established a "hot line" for complaints of harassment, and the effort is welcome, but it is too soon to judge its effectiveness. The Law Society's very recent decision on the Finucane issue encourages expectations that the Society will now demonstrate a greater tendency to back its beleaguered criminal practitioners.

      The leadership of the two professional associations (ideally with the support of their members, law professors, judges and government officials) must work jointly to give a public and continuing priority to the problems of the solicitors who are in the front lines in the effort to make human rights a reality in Northern Ireland. The professional societies should be the main voice for the independence and security of their lawyer colleagues who are an integral and indispensable part of the criminal justice system. We hope that in the wake of the ratification of the Good Friday Agreement and the adoption of the 1998 Human Rights Act by Parliament, the professional associations will be encouraged to follow their promising early steps with strengthened commitment.

      We suggest that, to promote human rights education and advocacy, a human rights desk book be developed containing human rights treaty provisions, and references to relevant statutory, constitutional and criminal laws and procedures, annotated by important court and commission decisions, for use by all. The desk book might be in a looseleaf form capable of periodic additions, or, if in hard cover, with an annual supplement. Such a book would best be compiled by a collaboration of the Bar Council, the Law Society, law schools, law professors and human rights organizations. The availability of such a desk book to lawyers, judges and prosecutors would in turn encourage human rights issues to be more effectively monitored or raised during criminal procedures, with a direct impact on the rights of the accused.

      There should also be joint human rights training of judges, prosecutors, lawyers and police utilizing the proposed human rights desk book. A curriculum should be developed for seminars which includes role-playing where lawyers, judges, prosecutors and police shift roles in mock pretrial and trial situations, thereby illustrating relevant human rights issues that regularly arise in these contents. Such seminars would give recognition to each institution's critical role in the criminal justice system, and could be video-taped for future training.

      As members of one of the oldest bar associations in our country, we have come to expect the Association to be a strong and loud voice in support of the rule of law and the administration of justice in the public interest. The reports and advocacy efforts carried out over nearly 130 years by the Association's committees have been widely respected and effective. In particular, the reports of the Committee on International Human Rights are examples of the kind of outspokenness we have in mind. Other efforts include the Association's extensive participation in the selection of highly qualified judges, consistent defense of judicial independence, continuing education and training programs for all sectors of the profession in legal developments and professional ethics, and ongoing efforts to reform and improve the laws.

      We recognize that our Association members join voluntarily, not as a requirement of their professional standing. Further, we have been spared the widespread turbulence and violence suffered in Northern Ireland. But we call upon the Bar Council and the Law Society to rise to the challenge of this promising moment. The Bar Council and Law Society can play an important role in the needed re-education and training to implement the 1998 Human Rights Act and the call of the Good Friday Agreement for equal rights for all the diverse communities of Northern Ireland. Both can and should be important forces in the effort to restore public confidence in a society ruled by laws which are fair and fairly applied to all. To the extent that our City Bar can be helpful to that effort, we extend our hand.


APPENDIX A

CHRONOLOGY OF MEETINGS DURING

OCTOBER 1998 MISSION TO NORTHERN IRELAND

     We received invaluable advice and guidance from many with whom we met in New York in advance of our visit to Northern Ireland, including Prof. Martin Flaherty of Fordham University Law School; Julia Hall, Counsel of the Europe and Central Asia Division, Human Rights Watch; Michael Posner and Tessa Robinson of the Lawyers Committee for Human Rights and William F. Kuntz, II, member of the New York City Civilian Complaint Review Board. We also benefited from a presentation in New York by the Honorable Mo Molam, M.P., Secretary of State for Northern Ireland, First Minister Designate David Trimble and Deputy First Minister Designate Seamus Mallon of the Northern Ireland Assembly. Other persons were interviewed, as follows:

Saturday, October 23, 1998

London

Jane Winter

British Irish Rights Watch

Monday, October 25, 1998

Belfast

Paul Mageean

Martin O'Brien

Committee on the Administration of Justice

Peter Madden

Eamon McManamon, and certain of their colleagues

Madden & Finucane, Solicitors

Rosemary Nelson

Solicitor

Sir Robert Carswell

Lord Chief Justice

Royal Courts of Justice

Gareth Johnston

Chief Secretary

Professor John Jackson, Head of Law School

Professor S. Livingstone, School of Human Rights

Queens University of Belfast

Eugene Grant

Past Chairperson, The Bar Council of Northern Ireland, Founder and Secretary of the Criminal Bar Association of Northern Ireland and Member of the Criminal Justice Review Board

Barristers

Paddy O'Hanlon

John Larkin

Tuesday, October 26, 1998

Belfast

Dr. William Lockhart, Director

EXTERN

Sir Louis Blom-Cooper, Q.C.

Independent Commissioner for the Holding Centers

Daniel McClurg

Secretary of the Police Federation for Northern Ireland

Michael Lavery, Q.C., Chairperson

Standing Advisory Commission on Human Rights

(and several other members of the Commission, including

Robin Wilson, Paul Donaghy, Cloddagh McGrory

and Les Allenby)

Barra McGrory,

Chair, Human Rights Committee,

Belfast Law Society

Wednesday, October 27, 1998

Belfast

Justice Brian Kerr, Q.C.

Royal Courts of Justice

(We met again with Justice Kerr in New York City in March 1999)

Peter May

Head of the Criminal Justice Secretariat

(with his colleagues, Simon Rogers,

Sarah Todd, Rosemary Carson and John Mills)

Patrick Armstrong

Chairperson

Police Authority

(along with several of his colleagues on the Police Authority, including Rev. Robert Coulter, Rosemary Peters-Gallagher, Francesca Reid, Francis Rocks and Trevor Wilson).

Brian Fee, Q.C.

Chairperson of the Bar Council

John Cushinan - Vice Chair

Brendan Garland - Chief Executive

Thursday, October 28, 1998

Belfast

Jerry Sillery - Executive Assistant to the Chief Constable for Northern Ireland

Alan McQuillan - Assistant Chief Constable for Northern Ireland

Samuel Kincaid - Detective Superintendent

Alasdair McLeod Fraser

Director of Public Prosecutions

Royal Courts of Justice

(along with several of his colleagues, including

Roy Gunbett, Deputy, James Scoles, Raymond Kitson

and others)

Friday, October 30, 1998

Dublin

Michael Farrell and Siobhan Ni Chulachain, Co-Chairpersons

Irish Counsel for Civil Liberties

(with Judy Walsh and Michael Finucane)

David Byrne, S.C.

Attorney General, Republic of Ireland

(along with several of his colleagues)

Patrick Gageby, S.C.

Eamonn M. Barnes

Director of Public Prosecutions,

Republic of Ireland

Thursday, April 1, 1998

New York City

Northern Ireland Criminal Justice Review Group:

Professor John Jackson

Head of the Law School, Queens University, Belfast

Eugene Grant, Q.C.

Former Chair of the Northern Ireland Bar Council

Jim Daniel

Director of Criminal Justice at the Northern Ireland Office and

Chair of the Review Group

Glenn Thompson

Director of the Northern Ireland Court Service

David Seymour, Legal Secretary to the Law Officers

Ian Maye, Criminal Justice Policy Division of the Northern Ireland Office

and Secretary to the Review Group

Debbie Donnelly, Research Officer to the Review Group

Coleen Doak, Secretariat to the Review Group

Dr. Ray Raymond, Political Officer of the British Consulate

in New York coordinated the meeting.


APPENDIX B

BIBLIOGRAPHY

CASES

     Brogan v. United Kingdom [1991] 13 Eur. H.R. Rep. 439.

     In Re Begley's Application, 1996 N. Ir. 1 (Q.B.).

     In Re Floyd's Application, 1997 N. Ir. 414 (Q.B.).

     In Re Kerr's Application, 1997 N. Ir. 225 (Q.B.).

     In Re Russell's Application, 1990 N. Ir. 188 (Q.B.).

     In Re Valente's & Baker's Application, 1998 N. Ir. 2693 (Q.B.).

     Kavanagh v. Ireland [1996] 1 I.L.R.M. 321 (Ir. S.C.).

     Lavery v. Member in Charge Carrickmacross Garda Station: [Pleadings & Exhibits in The High Court] (1998).

     Murray v. United Kingdom [1996] 22 Eur. H. R. Rep. 29.

STATUTES

Criminal Evidence (Northern Ireland) Order 1988 (No. Ir.).

     Criminal Justice Act, 1984, No. 22 (1984) (Ir.).

     Criminal Justice (Drug Trafficking) Act, 1996, No. 29 (1996) (Ir.).

     Criminal Justice Act, 1998, ch. 33 (Eng.).

     Human Rights Act 1998, 1998 Ch. 42 (visited Apr. 14, 1999).

     Northern Ireland (Emergency Provisions) Act, 1996, Ch. 22 (Eng.).

     Northern Ireland (Emergency Provisions) Act, 1991, Ch. 24 (Eng.).

Northern Ireland (Emergency Provisions) Act, 1973 (Eng.).

     Offences Against the State (Amendment) Act, 1998, No. 39 (1998) (Ir.).

     Offences Against the State (Amendment) Act, 1972, No. 26 (1972) (Ir.).

     Prevention of Terrorism (Additional Powers) Act, 1996, ch. 7 (Eng.).

     Prevention of Terrorism (Temporary Provisions) Act, 1989, ch. 4 (Eng.).

GOVERNMENTAL PUBLICATIONS

AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF IRELAND (APR. 1998).

SIR GEORGE BAKER, REVIEW OF THE OPERATION OF THE NORTHERN IRELAND (EMERGENCY PROVISIONS) ACT OF 1978 (APR. 1984).

SIR LOUIS BLOM-COOPER, SIXTH ANNUAL (1998) REPORT OF THE INDEPENDENT COMMISSIONER FOR THE HOLDING CENTRES (Mar. 31, 1999).

SIR LOUIS BLOM-COOPER, FIFTH ANNUAL (1997) REPORT OF THE INDEPENDENT COMMISSIONER FOR THE HOLDING CENTRES (Mar. 23, 1998).

SIR LOUIS BLOM-COOPER, FOURTH ANNUAL (1996) REPORT OF THE INDEPENDENT COMMISSIONER FOR THE HOLDING CENTRES (Mar. 10, 1997).

SIR LOUIS BLOM-COOPER, THIRD ANNUAL (1995) REPORT OF THE INDEPENDENT COMMISSIONER FOR THE HOLDING CENTRES (Jan. 29, 1996).

SIR LOUIS BLOM-COOPER, SECOND ANNUAL (1994) REPORT OF THE INDEPENDENT COMMISSIONER FOR THE HOLDING CENTRES (Mar. 13, 1995).

SIR LOUIS BLOM-COOPER, FIRST ANNUAL (1993) REPORT OF THE INDEPENDENT COMMISSIONER FOR THE HOLDING CENTRES (Jan. 31, 1994).

SIR LOUIS BLOM-COOPER, INDEPENDENT COMMISSIONER FOR THE HOLDING CENTRES, DELAYED CHOICE OR INSTANT ACCESS? LEGAL ADVICE FOR DETAINEES IN HOLDING CENTRES (Nov. 1994).

LORD CHIEF JUSTICE CARSWELL, JUDICIAL STUDIES BOARD FOR NORTHERN IRELAND, ADDRESS (Feb. 20, 1998).

COUNCIL OF EUROPE, CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS (Nov. 4, 1950).

COUNCIL OF EUROPE, EUROPEAN CONVENTION ON HUMAN RIGHTS, opened for signature Nov. 4, 1950 (visited Apr. 14, 1999) .

LORD DIPLOCK, REPORT OF THE COMMISSION TO CONSIDER LEGAL PROCEDURES TO DEAL WITH TERRORIST ACTIVITIES IN NORTHERN IRELAND (DEC. 1972).

HON. BEN EMMERSON, JUDICIAL STUDIES BOARD FOR NORTHERN IRELAND, THE HUMAN RIGHTS BILL: ITS EFFECT ON CRIMINAL PROCEEDINGS (Apr. 28, 1998).

RT. HON. LORD LLOYD OF BERWICK, INQUIRY INTO LEGISLATION AGAINST TERRORISM (Oct. 1996).

NORTHERN IRELAND INFORMATION SERVICE, NORTHERN IRELAND STATISTICS ON THE OPERATION OF THE PREVENTION OF TERRORISM (TEMPORARY PROVISIONS) ACTS: APRIL - JUNE 1997 (visited Mar. 4, 1999) .

NORTHERN IRELAND OFFICE, LAW & ORDER: COUNTER-TERRORISM LEGISLATION (visited Mar. 4, 1999).

OFFICE OF THE ATTORNEY GENERAL, ANNUAL REPORT (1996/97).

OFFICE OF THE ATTORNEY GENERAL, GUIDE TO THE FUNCTIONS AND RECORDS OF THE OFFICE, FREEDOM OF INFORMATION ACT, SECTION 15 & SECTION 16 REFERENCE BOOK (1998).

POFFICE OF THE ATTORNEY GENERAL, GOVERNMENT OF IRELAND, ROLE OF THE ATTORNEY GENERAL (visited Oct. 23, 1998) .

ROYAL ULSTER CONSTABULARY, THE CHIEF CONSTABLE'S REPORT 1997/98.

SECRETARY OF STATE FOR THE HOME DEPARTMENT & SECRETARY OF STATE FOR NORTHERN IRELAND, LEGISLATION AGAINST TERRORISM: A CONSULTATION PAPER (Dec. 1998).

HOUSE OF COMMONS, SELECT COMMITTEE ON NORTHERN IRELAND AFFAIRS, THIRD REPORT (July 1998) (visited Apr. 5. 1999).

STANDING ADVISORY COMMISSION ON HUMAN RIGHTS, REPORT FOR 1997-98 (1998).

UNITED KINGDOM'S RESPONSE TO THE CONCLUSIONS AND RECOMMENDATIONS TO THE U.N. SPECIAL RAPPORTEUR'S REPORT (1998).

U.S. DEPARTMENT OF STATE, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, IRELAND COUNTRY REPORT ON HUMAN RIGHTS PRACTICES FOR 1998 (visited Apr. 5, 1999).

U.S. DEPARTMENT OF STATE, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, UNITED KINGDOM COUNTRY REPORT ON HUMAN RIGHTS PRACTICES FOR 1998 (visited Apr. 5, 1999).

UNITED NATIONS DOCUMENTS

UNITED NATIONS, BASIC PRINCIPLES ON THE INDEPENDENCE OF THE JUDICIARY, A/RES/40/32 (Nov. 29, 1985).

UNITED NATIONS, BASIC PRINCIPLES ON THE USE OF FORCE AND FIREARMS BY LAW ENFORCEMENT OFFICIALS, E/CN.4/80B 2/26 (1991).

UNITED NATIONS, CODE OF CONDUCT FOR LAW ENFORCEMENT OFFICIALS, U.N. GAOR, 106 SESS., 34/169 (Dec. 17, 1979).

UNITED NATIONS, ECON. & SOCIAL COUNCIL, COMMISSION ON HUMAN RIGHTS, QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION OR IMPRISONMENT: REPORT OF THE SPECIAL RAPPORTEUR ON THE INDEPENDENCE OF JUDGES AND LAWYERS & ADDENDUM REPORT ON THE MISSION OF THE SPECIAL RAPPORTEUR TO THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, E/CN.4/1998/39/ADD.4 (Mar. 5, 1998).

UNITED NATIONS, ECON. & SOCIAL COUNCIL, PRINCIPLES ON THE EFFECTIVE PREVENTION AND INVESTIGATION OF EXTRA-LEGAL, ARBITRARY AND SUMMARY EXECUTIONS, GAOR RES. 1989/65 (May 24, 1989).

UNITED NATIONS, COMMENTS OF THE HUMAN RIGHTS COMMITTEE, CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT, 1995, CCPR/C/79/ADD.55 (July 27, 1995).

UNITED NATIONS, THE INTERNATIONAL BILL OF HUMAN RIGHTS, 2 HUMAN RIGHTS FACT SHEET (1998).

UNITED NATIONS, INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, DEC. 16, 1966, 14668 U.N.T.S. 999 (visited Apr. 14, 1999).

UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, GUIDELINES ON THE ROLE OF PROSECUTORS, 8TH CONGR. (1990) (visited May 14, 1999) .

ORGANIZATIONAL PUBLICATIONS

AMNESTY INTERNATIONAL, UNITED KINGDOM: POLITICAL KILLINGS IN NORTHEN IRELAND (FEB. 1994).

AMNESTY INTERNATIONAL, UNITED KINGDOM: U.N. REPORT CRITICIZES EMERGENCY LAW PRACTICES IN NORTHERN IRELAND (APR. 1998).

BRITISH IRISH RIGHTS WATCH, CONFLICTING REPORTS: REPORTING THE CONFLICT IN NORTHERN IRELAND (Nov. 1993).

BRITISH IRISH RIGHTS WATCH, DEADLY INTELLIGENCE: STATE COLLUSION WITH LOYALIST VIOLENCE IN NORTHERN IRELAND (Feb. 1999).

BRITISH IRISH RIGHTS WATCH, DIRECTOR'S REPORT (July 1998).

BRITISH IRISH RIGHTS WATCH, MISTAKEN IDENTITY: ATTEMPTED INTIMIDATION OF DEFENCE LAWYERS IN NORTHERN IRELAND, THE MURDER OF PATRICK FINUCANE AND OTHER ISSUES (Nov. 1998).

BRITISH IRISH RIGHTS WATCH, THE MITCHELL AGREEMENT: AN ASSESSMENT OF THE HUMAN RIGHTS DIMENSION (Apr. 1998).

BRITISH IRISH RIGHTS WATCH, SUBMISSION TO THE INDEPENDENT COMMISSION ON POLICING FOR NORTHERN IRELAND (Sept. 1998).

BRITISH IRISH RIGHTS WATCH, SUBMISSION TO THE UNITED NATIONS COMMITTEE AGAINST TORTURE (Oct. 1998).

COMMITTEE ON THE ADMINISTRATION OF JUSTICE & BRITISH IRISH RIGHTS WATCH, A BRIEFING ON THE CRIMINAL JUSTICE (TERRORISM AND CONSPIRACY) ACT 1998.

COMMITTEE ON THE ADMINISTRATION OF JUSTICE, A BRIEFING ON THE HUMAN RIGHTS AND EQUALITY PROVISIONS OF THE NORTHERN IRELAND BILL 1998.

COMMITTEE ON THE ADMINISTRATION OF JUSTICE, THE CASEMENT TRIALS: A CASE STUDY ON THE RIGHT TO A FAIR TRIAL IN NORTHERN IRELAND (Apr. 1992).

COMMITTEE ON THE ADMINISTRATION OF JUSTICE, COMMENTARY ON THE HUMAN RIGHTS ASPECTS OF THE MULTI-PARTY AGREEMENT (Apr. 1998).

COMMITTEE ON THE ADMINISTRATION OF JUSTICE & BRITISH IRISH RIGHTS WATCH, DELIVERING HUMAN RIGHTS IN NORTHERN IRELAND (Sept. 1998).

COMMITTEE ON THE ADMINISTRATION OF JUSTICE, POLICING OMBUDSMAN (Feb. 1999).

COMMITTEE TO ENQUIRE INTO CERTAIN ASPECTS OF CRIMINAL PROCEDURE, REPORT (Mar. 1990).

CRIMINAL JUSTICE REVIEW GROUP, REVIEW OF THE CRIMINAL JUSTICE SYSTEM IN NORTHERN IRELAND: A CONSULTATION PAPER (Aug. 1998).

FIANNA FAIL, POSITION PAPER ON JUSTICE: LEADING THE FIGHT AGAINST CRIME (Mar. 1997).

FINE GAEL PARTY, FINE GAEL PARTY HISTORY (visited Apr. 5, 1999).

HUMAN RIGHTS WATCH, JUSTICE FOR ALL?: AN ANALYSIS OF THE HUMAN RIGHTS PROVISIONS OF THE 1998 NORTHERN IRELAND PEACE AGREEMENT, Vol. 10, No. 3 (Apr. 1998).

INDEPENDENT COMMISSION ON POLICING FOR NORTHERN IRELAND, SUBMISSION BY THE POLICE FEDERATION FOR NORTHERN IRELAND, (VOL. I) (Sept. 1998).

IRISH COUNCIL FOR CIVIL LIBERTIES, BRIEFING PAPER NO. 1: THE SPECIAL CRIMINAL COURT.

IRISH COUNCIL FOR CIVIL LIBERTIES, BRIEFING PAPER NO. 2: THE CRIMINAL JUSTICE (DRUG TRAFFICKING) BILL 1996 - THE SEVEN DAY DETENTION BILL (May 1996).

IRISH COUNCIL FOR CIVIL LIBERTIES, BRIEFING PAPER ON THE OFFENCES AGAINST THE STATE (AMENDMENT) BILL 1998 (Sept. 1998).

IRISH COUNCIL FOR CIVIL LIBERTIES, FACTSHEET NO. 1: THE SPECIAL CRIMINAL COURT.

IRISH COUNCIL FOR CIVIL LIBERTIES, HUMAN RIGHTS COMMISSIONS NORTH AND SOUTH, 10:2, ICCL NEWS (AUG. 1998).

IRISH COUNCIL FOR CIVIL LIBERTIES, ICCL OPPOSES INTERNMENT (Aug. 1998).

IRISH COUNCIL FOR CIVIL LIBERTIES, ICCL OPPOSES NEW POLICE POWERS (Oct. 1998).

IRISH COUNCIL FOR CIVIL LIBERTIES, LOCAL CIVIL LIBERTIES GROUPS AND AMNESTY INTERNATIONAL EXPRESS CONCERN ABOUT GOVERNMENT PROPOSALS (Aug. 1998).

IRISH COUNCIL FOR CIVIL LIBERTIES & BRITISH IRISH RIGHTS WATCH, JOINT REPORT INTO ALLEGATIONS OF ILL-TREATMENT BY THE GARDA SIOCHANA OF PERSONS ARRESTED AFTER THE MURDER OF DETECTIVE GARDA JERRY MCCABE IN LIMERICK IN JUNE 1996 (July 1997).

LAWYERS COMMITTEE FOR HUMAN RIGHTS, ACTION UPDATE: PATRICK FINUCANE-NORTHERN IRELAND (Jan. 1999).

LAWYERS COMMITTEE FOR HUMAN RIGHTS, CHOICE WITHOUT DELAY: INTERROGATION, LEGAL ADVICE AND HUMAN RIGHTS IN NORTHERN IRELAND (Sept. 1995).

LAWYERS COMMITTEE FOR HUMAN RIGHTS, NORTHERN IRELAND MEMORANDUM (Dec. 1998).

PAT FINUCANE CENTRE TOWARDS HUMAN RIGHTS AND SOCIAL CHANGE, INTRODUCTORY MATERIALS (Oct. 1998).

POLICE AUTHORITY FOR NORTHERN IRELAND, ANNUAL REPORT (1997/98).

POLICE AUTHORITY FOR NORTHERN IRELAND, [INFORMATIONAL MATERIAL 1998/99].

POLICE FEDERATION FOR NORTHERN IRELAND, ANNUAL REPORT (1998).

WILLIAM E. HELLERSTEIN ET AL., CRIMINAL JUSTICE AND HUMAN RIGHTS IN NORTHERN IRELAND: A REPORT TO THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, 43 REC. ASS'N BAR CITY N.Y. 110 (1988).

BOOKS

HELSINKI WATCH, HUMAN RIGHTS IN NORTHERN IRELAND (Oct. 1991).

HUMAN RIGHTS WATCH/HELSINKI, TO SERVE WITHOUT FAVOR: POLICING, HUMAN RIGHTS, AND ACCOUNTABILITY IN NORTHERN IRELAND (May 1997).

LAWYERS COMMITTEE FOR HUMAN RIGHTS, AT THE CROSSROADS: HUMAN RIGHTS AND THE NORTHERN IRELAND PEACE PROCESS (Dec. 1996).

LAWYERS COMMITTEE FOR HUMAN RIGHTS, HUMAN RIGHTS AND LEGAL DEFENSE IN NORTHERN IRELAND: THE INTIMIDATION OF DEFENSE LAWYERS, THE MURDER OF PATRICK FINUNCANE (Feb. 1993).

MARY T.W. ROBINSON, THE SPECIAL CRIMINAL COURT (July 1974).

LAW REVIEW ARTICLES

     Martin S. Flaherty, Interrogation, Legal Advice, And Human Rights in Northern Ireland, 27 COLUM. HUM. RTS. L. REV. 1 (1995).

     Martin Flaherty, Human Rights Violations Against Defense Lawyers: The Case of Northern Ireland, 7 HARV. HUM. RTS. J. 87 (1994).

     Fionnuala Ni Aolain, The Fortification of an Emergency Regime, 59 ALB. L. REV. 1353 (1996).

     Thomas P. Quinn, Jr., Judicial Interpretation of Silence: The Criminal Evidence Order of 1988, 26 CASE W. RES. J. INT'L L. 365 (1994).

NEWSPAPER & MAGAZINE ARTICLES

     Brian Carroll, Concern at Plans to Curb Right to Silence, EXAMINER, Aug. 11, 1998.

     Brian Carroll, Right to Silence to Go on Range of Serious Crimes, EXAMINER, Sept. 23, 1998.

     Michael Farrell, "Draconian" Law Will Breed Injustice, CEIDE MAG., Oct. 6, 1998.

Pat Igoe, Is Time Running out for the Right to Silence, LAW SOC'Y GAZETTE (July 1997).

     Man Held under New Laws Released, IRISH TIMES, Oct. 3, 1998.

     Marion McKeone, Why We Must Resist Erosion of Right to Silence.

North Solicitors Call For Independent Inquiry Into Finucane Murder, RTE News Online, May 11, 1999.

     Liz Walsh, The Emergency Court That Won't Go Away, MAGILL (Oct. 1998).

LETTERS

LETTER FROM THE ABA TO THE RT. HON. DR. MAJORIE MOWLAN, SECR. OF STATE FOR NO. IRELAND RE: RULE OF LAW IN NO. IRELAND & POLICE CONDUCT TOWARDS LAWYERS (JULY 27, 1998).

LETTER FROM HUMAN RIGHTS WATCH TO CHAIRMAN PATTEN AND MEMBERS OF THE INDEPENDENT COMMISSION ON POLICING RE: HUMAN RIGHTS WATCH SUBMISSION (SEPT. 8, 1998).

LETTER FROM DAN BRENNAN, QC, CHAIRMAN OF THE BAR OF ENGLAND AND WALES AND STEPHEN SOLLEY, QC, CHAIRMAN OF THE BAR HUMAN RIGHTS COMMITTEE TO THE RT. HON. DR. MARJORIE MOWLAM, MP, SECRETARY OF STATE FOR NORTHERN IRELAND RE: PATRICK FINUCANE AND THE BRITISH IRISH RIGHTS WATCH REPORT 12/2/99 (FEB. 25, 1999).


NOTES

[1] The members of the mission were Judges Barbara Jones and Sidney H. Stein of the United States District Court for the Southern District of New York, Barbara Paul Robinson, partner in the law firm of Debevoise & Plimpton and former president of The Association of the Bar of the City of New York, Assistant District Attorney Gerald P. Conroy of the New York County District Attorney's Office and New York City attorney Peter Eikenberry. A list of those who so generously took the time to meet with us and make this report possible is set forth in Appendix A; we are grateful to each of them. We also thank David Nachman, Chair of the Committee on International Human Rights and Scott Greathead, a former member of that Committee for their support and fundraising for the mission and Paul Shechtman for his editorial assistance. We thank The Spingold Foundation and The Reebok Foundation for their gracious contributions which made the mission possible. This report is dedicated to the many lawyers and judges in Northern Ireland who have devoted their energies - often at tragic cost - to the defense of individual liberty and the fair administration of justice in their native land. Return to Text

[2] Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (the "Good Friday Agreement"), at Strand Three; Rights, Safeguards and Equality of Opportunity; Human Rights, at 1. A list of the documents reviewed by us is attached as Appendix B. Return to Text

[3] Id. at Strand One; Democratic Institutions in Northern Ireland; Annex A: Pledge of Office, at (c). Return to Text

[4] See id. at Strand Three; Policing and Justice; Annex A: Commission on Policing for Northern Ireland and Annex B: Review of the Criminal Justice System. Return to Text

[5] William E. Hellerstein, Robert B. McKay and Peter R. Schlam, Criminal Justice And Human Rights in Northern Ireland: A Report to the Association of the Bar of the City of New York, 43 REC. ASS'N B. CITY N.Y. 110 (1988). Return to Text

[6] Id. at 115. Return to Text

[7] Id. Return to Text

[8] Id. at 118. Return to Text

[9] See id. at 119. Return to Text

[10] See Legislation Against Terrorism: A Consultation Paper (Dec. 1998) ( the "1998 White Paper"), at p.v, � 5. Return to Text

[11] Article 2 of the United Nations International Covenant on Civil and Political Rights opened for signature Dec. 19, 1966, 14688 U.N.T.S. 999, to which the United Kingdom is a party and which entered into force in 1976, provides that each state "undertakes to respect and to ensure to all individuals ... the rights recognized in the ... Covenant." Under Article 4.1, states may deviate from their obligations in "time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed...." Return to Text

[12] 1998 White Paper at � 1.2. Return to Text

[13] Id. at �� 1.3-1.4. Return to Text

[14] See id. at Ch. 13. The Diplock courts were named for the Commission chaired by Lord Diplock which recommended the abolition of jury trials for specified offenses out of concern for juror intimidation and perverse verdicts. Most of the Commission's recommendations were enacted by the U.K. Parliament in the Northern Ireland (Emergency Provisions) Act 1973. See infra at 53. Return to Text

[15] Id. at � 8.33. Return to Text

[16] See id. at � 8.24. Return to Text

[17] Id. at � 8.5. Return to Text

[18] Human Rights Act 1998, 1998 Ch. 42 (Eng.) Return to Text

[19] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950. Return to Text

[20] See 1998 Human Rights Act at �� at 3(2)(b)-(c), 4(2), 4(6)(a)-(b). Return to Text

[21] Id. at �� 10(2)-(3). Return to Text

[22] 1987 Report, at 127-28. Return to Text

[23] 1998 White Paper at � 7.9. Return to Text

[24] Brogan v. United Kingdom, 11 Eur. Ct. H.R. 117 (Ser. A), at � 51 (1989). Return to Text

[25] Id. at �� 50-51. Return to Text

[26] 1998 White Paper at � 7.6. Return to Text

[27] Sir Louis Blom-Cooper, Fourth Annual (1996) Report of the Independent Commissioner for the Holding Centres (Mar. 10, 1997), at 9. Return to Text

[28] Sir Louis Blom-Cooper, Fifth Annual (1997) Report of the Independent Commissioner for the Holding Centres (Mar. 23, 1998) (referred to hereafter as "Commissioner's Fifth Annual (1997) Report"), at 1. Return to Text

[29] Sir Louis Blom-Cooper, Sixth Annual (1998) Report of the Independent Commissioner for the Holding Centres (Mar. 31, 1999) (referred to hereafter as "Commissioner's Sixth Annual (1998) Report"), at 1, 3. Return to Text

[30] PTA at � 14(4). Although the Convention posits a right to legal representation, it is not clear when that right attaches. The Government proposes to recognize the right to counsel beginning with the first appearance before a judicial officer to review police requests for extension of detention -- i.e., after 48 hours. (See 1998 White Paper at �8.33). This appears to satisfy the Convention. Neither the Convention nor the Government's proposal contemplates a right to counsel during the initial period of detention and interrogation. Return to Text

[31] Id. at � 14(5). Return to Text

[32] Commissioner's Sixth Annual (1998) Report, at Annex 1, at 2. Return to Text

[33] Sir Louis Blom-Cooper, First Annual (1993) Report of the Independent Commissioner for the Holding Centres (Jan. 31, 1994) (referred to hereafter as "Commissioner's First Annual (1993) Report"), at 30. Return to Text

[34] Brogan v. United Kingdom, 11 Eur. Ct. H.R. 117 (Ser. A), at � 62 (1989). Return to Text

[35] 1998 White Paper at � 8.20. Return to Text

[36] Id. at �� 8.7-8.18. Return to Text

[37] Id. at � 8.11. Membership might include retired solicitors and barristers should their participation be necessary to create a large enough pool of qualified commissioners. Return to Text

[38] Under the EPA, a detainee is entitled to have a solicitor and a named person notified of his detention without delay. See EPA �� 46(1)-(4), 47(1)-(4). These rights of notification and access may be delayed, however, for 48 hours on the authority of a police superintendent. Id. at �� 46(6), 47(6). Return to Text

[39] See EPA at � 47(6). Return to Text

[40] See 1998 White Paper at � 8.31. Return to Text

[41] Id. Return to Text

[42] Id. Return to Text

[43] If the extraordinary practice of denying access to counsel is warranted in particular circumstances, it should be justified on a case-by-case basis. The Government also wishes to retain the 7-day time period for detention despite its own admission that in international cases detainees have either been released, charged or the decision taken to deport them within [a] 4-day period. 1998 White Paper at � 8.22. We urge the Government to reduce this time period so that suspected terrorists are brought more promptly before a magistrate. Return to Text

[44] See EPA � 47(8). Return to Text

[45] See 1998 White Paper at � 8.30. Return to Text

[46] Id. at � 8.33. Return to Text

[47] Commissioner's First Annual (1993) Report, at 32-33. Return to Text

[48] United Nations, Comments of the Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, at �� 11, 22, CCPR/C/79/ADD.55 (July 27, 1995). Return to Text

[49] See, e.g., Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3; International Covenant on Civil and Political Rights, Arts. 7, 10. Return to Text

[50] See PTA � 14(5). Return to Text

[51] 1998 N. Ir. 341 (Q.B.). Return to Text

[52] 1997 N. Ir. 225 (Q.B.). Return to Text

[53] Report of the Commission to Consider Legal Procedures to Deal With Terrorist Activities in Northern Ireland (1972) (referred to hereafter as the "Diplock Report"), at 3. Return to Text

[54] Id. at 17. The Diplock Commission also recommended that a defendant's statement should be admitted at trial unless he proved "on a balance of probabilities, [it] was obtained by subjecting [him] to torture or to inhuman or degrading treatment." Id. at 32. Return to Text

[55] Report of the Operations of the Northern Ireland (Emergency Provisions) Act 1978 (1984) (referred to hereafter as the "Baker Report"), at 30. Return to Text

[56] Id. at 33-38; for a discussion of the Baker Report, see the 1987 Report at 151-55. Return to Text

[57] Rt. Hon. Lord Lloyd of Berwick, Inquiry into Legislation Against Terrorism, Vol. 1 (Oct. 1996), at � 16.13. Return to Text

[58] Id. at � 16.16. Return to Text

[59] Id. at � 16.18. Return to Text

[60] 1998 White Paper at � 13.5. Return to Text

[61] See 1987 Report at 160-62 (Citing S.C. Greer and A. White, Abolishing the Diplock Courts (1986)). Return to Text

[62] See � 3(g). Return to Text

[63] Murray v. United Kingdom, 22 Eur. H.R. Rep. 29, at � 45 (1996). Return to Text

[64] See Criminal Evidence (Northern Ireland) Order 1998, at �� 3(5)(a)-(b), 4(3)-(4). Return to Text

[65] See EPA at � 12(2)(b). Return to Text

[66] Murray, at � 57. Return to Text

[67] Murray, at �� 47-54. RETURN TO TEXT

[68]&NBSPWALSH, THE USE AND ABUSE OF EMERGENCY LEGISLATION IN NORTHERN IRELAND (1983). Return to Text

[69] 1987 Report at 181 (citing Korff, THE DIPLOCK COURTS IN NORTHERN IRELAND: A FAIR TRIAL?, at 100). Return to Text

[70] (See, e.g., discussion of the Casement Park cases infra, at F.N. 78.) Return to Text

[71] 1998 White Paper at � 14.3(iv). Return to Text

[72] 1998 White Paper at �14.3. Return to Text

[73] Id. at � 14.5. Return to Text

[74] Id. at � 14.3(iii). Return to Text

[75] In Re Kerr's Application, [1997] N. Ir. 225 (Q.B.). Return to Text

[76] Art 5.1.c. Return to Text

[77] See United Nations High Commissioner for Human Rights, Guidelines on the Role of Prosecutors, 8th Congr (1990) (visited May 14, 1999) , at �� 11 ("Prosecutors shall perform an active role in criminal proceedings . . ."), 12, 13(b). Return to Text

[78] For a discussion of the Casement Park murder cases see Committee on The Administration of Justice, The Casement Trials: A Case Study on the Right to a Fair Trial in Northern Ireland (Apr. 1992). Return to Text

[79] Id. at 16. Return to Text

[80] 1998 Human Rights Act at � 6(1). Return to Text

[81] Hon. Ben Emmerson, Judicial Studies Based for Northern Ireland, The Human Rights Bill: Its Effect on Criminal Proceedings (April 28, 1998) (referred to hereafter as "Emerson lecture"), at 2. Return to Text

[82] See 1998 Human Rights Act at �� 3(1), 4(2), 4(4). Return to Text

[83] Emmerson lecture at 4. Return to Text

[84] Id. Return to Text

[85] The Northern Ireland judiciary played a leading role in the development of the 1998 Act. Lord Chief Justice Carswell chaired the cabinet committee that developed the theory incorporating the Act into the United Kingdom's parliamentary government. Return to Text

[86] Lord Chief Justice Carswell, Judicial Studies Board of Northern Ireland, Address at �� 3, 7, 10 (Feb. 20, 1998). Return to Text

[87] Police Authority for Northern Ireland, Annual Report 1997/98, at 52. Return to Text

[88] Id. Return to Text

[89] See id. Return to Text

[90] See id. at 19 Return to Text

[91] See Police Federation for Northern Ireland Annual Report 1998, at 44. Return to Text

[92] See February 1999 Committee for the Administration of Justice Analysis: Police Ombudsman. Return to Text

[93] See Commissioner's Fifth Annual (1997) Report at 9-12 for a discussion of the Adams case. Return to Text

[94] See Police Federation for Northern Ireland Annual Report 1998, at 44. Return to Text

[95] Id. Return to Text

[96] See United Nations, Econ. & Social Council, Commission on Human Rights, Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment: Report of the Special Rapporteur on the Independence of Judges and Lawyers & Addendum Report on the Mission of the Special Rapporteur to the United Kingdom of Great Britain and Northern Ireland, U.N. Doc. E/CN.4/1998/39/ ADD. 4 (Mar. 5, 1998). Return to Text

[97] Id. at � 38. Return to Text

[98] Id. at � 73. Return to Text

[99] We understand that recently Stevens has been asked to conduct a third investigation, this one focused on the Finucane murder. Given the history of the Stevens reports, we believe it is time for an independent judicial inquiry. Return to Text

[100] See North Solicitors Call for Independent Inquiry Into Finucane Matter, RTE News Online, May 11, 1999. Northern Ireland Report.wpd