May 01, 2000Northern Ireland Accountability and Access to Justice
1. INTRODUCTION 1.1 British Irish Rights Watch is an independent non-governmental organisation and registered charity that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process. 1.2 Our remit extends to anyone in any country whose human rights have been affected by the conflict in Northern Ireland. Since the conflict has had severe consequences for people living in the Republic of Ireland, we work in that jurisdiction, as well as in Northern Ireland itself and in Britain. This report to the United Nations Human Rights Committee reflects concerns that have arisen from our work in Ireland since the Committee last considered its compliance with the ICCPR. Broadly speaking, those concerns revolve around three of the most important rights protected by the ICCPR: the right to life, freedom from torture, and the right to a fair trial. 1.3 British Irish Rights Watch enjoys good relations with the Irish government. We have often found them to be more responsive than the United Kingdom when it comes to human rights issues arising in Northern Ireland. For example, the Irish government was instrumental in persuading the UK government to hold a second public inquiry into the events known as Bloody Sunday, when 13 unarmed demonstrators were shot by the British army in 1972. Similarly, the Irish government has joined international calls for an inquiry into the murder in 1989 of Belfast lawyer Patrick Finucane. However, as this report shows, and perhaps like all governments around the world, the Irish government is less responsive when human rights violations that are its own responsibility are drawn to their attention. 2. THE IRISH GOVERNMENT AND HUMAN RIGHTS 2.1 Under the terms of the Good Friday peace agreement, the Irish government committed itself to taking a number of measures to strengthen human rights, in the following terms:
“9. The Irish Government will also take steps to further strengthen the protection of human rights in its jurisdiction. The Government will, taking account of the work of the All-Party Oireachtas Committee on the Constitution and the Report of the Constitution Review Group, bring forward measures to strengthen and underpin the constitutional protection of human rights. These proposals will draw on the European Convention on Human Rights and other international legal instruments in the field of human rights and the question of the incorporation of the ECHR will be further examined in this context. The measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland. In addition, the Irish Government will:
• Establish a Human Rights Commission with a mandate and remit equivalent to that within Northern Ireland;
• Proceed with arrangements as quickly as possible to ratify the Council of Europe Framework Convention on National Minorities (already ratified by the UK);
• Implement enhanced employment equality legislation;
• Introduce equal status legislation; and
• Continue to take further active steps to demonstrate its respect for the different traditions in the island of Ireland.
10. It is envisaged that there would be a joint committee of representatives of the two Human Rights Commissions, North and South, as a forum for consideration of human rights issues in the island of Ireland. The joint committee will consider, among other matters, the possibility of establishing a charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in the island of Ireland.”
2.2 The Agreement was signed on 10th April 1998. Ireland has been much slower than the UK in establishing a human rights commission. The Northern Ireland Human Rights Commission was set up on 1st March 1999, whereas the legislation for establishing its Irish counterpart has only recently become law. Although we welcome the creation of a human rights commission, we have a number of concerns about the way Ireland is going about it. First, the new commission will come under the auspices of the Department of Justice, Equality and Law Reform. Many of the human rights violations arising in Ireland that we have examined have involved the activities of the Garda Síochána, who come under the same department. We have also found the Department of Justice less responsive than other departments when we have been attempting to investigate alleged miscarriages of justice. We envisage conflicts of interest arising out of the placing of the commission within this department. Secondly, it is proposed to severely restrict the reliance the commission may place on international instruments when it is involved in litigation, and the criteria for provision by the commission of legal assistance in bringing cases are too narrow. Thirdly, the commission will not have a statutory right to be consulted about draft legislation, in breach of the Paris Principles, although the government has expressed its intention of consulting the commission. Fourthly, the criteria for membership of the commission do not emphasise sufficiently the need for human rights expertise and the appointment system needs to be more transparent. It would appear that the government is intent upon appointing a senior judge to head the commission, rather than an acknowledged human rights expert, and that the rest of the commission members are likely to be selected by senior civil servants without human rights knowledge. Lastly, the proposed budget of £600,000 is far too low. 2.3 Similarly, the European Convention on Human Rights has yet to be incorporated by Ireland, the last European country to do so, the government has announced that it is about to introduce enabling legislation and hopes to have incorporated the Convention by October 2000. Unfortunately, there are no plans at present to incorporate the International Covenant on Civil and Political Rights. Ireland has, however, established a human rights forum for NGOs, in which government officials meet regularly with human rights groups. Ireland ratified the Framework Convention on National Minorities on 7th May 1999, which came into force on 1st September 1999. 2.4 Ireland also has yet to ratify the Convention of the Elimination of All Forms of Racial Discrimination or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, although enabling legislation is currently before the Dáil concerning the Convention against Torture. This is of particular concern in light of the lack of due process rights for suspects held in police stations and allegations of ill-treatment to which we refer below. 2.5 However, Ireland is ahead of the UK in one vital regard, in that it has ratified the First Optional Protocol to the ICCPR, thereby giving its citizens the right of individual petition to the Human Rights Committee. 3. THE RIGHT TO LIFE 3.1 John Morris and Ronan MacLochlainn 3.1.1 British Irish Rights Watch is especially concerned about the activities of the Garda Síochána’s Emergency Response Unit. This is an armed rapid response unit, which has been responsible for two conflict-related deaths of alleged republican dissidents who were involved in robberies. 3.1.2. John Morris was a member of the Irish National Liberation Army (INLA). On 4th June 1997 he took part with three others in an armed robbery on a Dublin industrial estate. Although John Morris was carrying a gun, it was not loaded. Garda Síochána officers were lying in wait for the INLA team, and obviously had prior intelligence about the operation. On 9th July 1998, the Garda Síochána applied to the coroner conducting the inquest for:
The coroner refused the suppression of non-medical evidence, but agreed that the identification number of the weapon could be withheld and that police witnesses would be known by letters of the alphabet and screened from public view. On 8th October 1999 the High Court upheld a challenge to the coroner’s ruling by way of judicial review, brought by John Morris’s parents. The coroner appealed. The appeal is due to be heard on 21st June 2000. 3.1.3 Rónán MacLochlainn died on 1st May 1998 in Ashford in the Republic of Ireland when he was shot by the Emergency Response Unit while taking part in an armed robbery alleged to have been organised by the republican group the Real IRA. It would appear that he and his five associates had been under police surveillance for some time and that the police were well aware of the plans for the robbery. Although some of the six men were armed, none of them fired any shots. The police unit, however, opened fire on them nevertheless. Rónán MacLochlainn was killed while attempting to flee in a hijacked car and was reportedly posing no threat at the time of his death. Information disseminated by the police after the incident falsely claimed that Rónán MacLochlainn died during a gun battle with police and exaggerated the number of weapons used in the robbery. The Irish Council for Civil Liberties has called for an independent judicial inquiry into the shooting, and British Irish Rights Watch supports that call. British Irish Rights Watch has also made a submission concerning his death the UN Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions, a copy of which is annexed at Annex A. There has been no inquest as yet concerning this death. 3.1.4 We are concerned that An Garda Síochána has used lethal force on these two occasions when their prior knowledge of the planned crimes ought to have enabled them to make arrests without resorting to lethal force. In both cases, the lives of uninvolved bystanders were potentially put at risk. 3.1.5 We are also concerned by An Garda Síochána’s attempts to suppress information about their role in the shooting of John Morris, and by their dissemination of false information concerning the death of Rónán MacLochlainn. 3.2 The Dublin and Monaghan bombings 3.2.1 On17th May 1974, three bombs exploded in the capital city of Dublin and one in the border town of Monaghan, leaving 33 people dead and over 240 injured. It was the worst atrocity of the conflict in terms of casualties. In recent years evidence has come to light that suggests that the bombings were perpetrated by loyalists from Northern Ireland. Surprisingly, the investigation into the bombings by An Garda Síochána seems to have halted shortly after the bombings. Although the Dublin bombs employed very sophisticated timing devices never used before of since by the loyalists, the forensic tests undertaken in the wake of the bombings were very sketchy. It is believed that the names of the alleged perpetrators have been known to An Garda Síochána for many years, but An Garda Síochána will not allow lawyers acting for the victims to review their files. 3.2.2 On 19th December 1999 the Irish government announced that a private Commission of Inquiry would be established under the former Chief Justice of Ireland, Mr Justice Liam Hamilton, with the following terms of reference:
“To undertake a thorough examination, involving fact finding and assessment of all aspects of the Dublin, Monaghan and Dundalk [please see 3.3.below] bombings and their sequel, including - the facts, circumstances, causes and perpetrators of the bombings; - the nature, adequacy and extent of Garda investigations, including the adequacy of co-operation with and from the relevant authorities in Northern Ireland and the adequacy of the handling of scientific analyses of forensic evidence; and - the reasons why no prosecution took place, including whether and if so, by whom and to what extent the investigations were impeded.”
Mr Justice Hamilton is due to report to the Joint Oireachtas Committee on Justice, Equality and Women’s Rights, who are expected to hold a public hearing to determine whether or not there should be a public inquiry into the bombings. 3.2.3 The victims of the bombings agreed to co-operate with this Commission of Inquiry because they believed that the Joint Oireachtas Committee would have little option but to order a public inquiry. The Justice for the Forgotten Campaign asked British Irish Rights Watch to compile a report on what is known about the bombings in order to assist Mr Justice Hamilton in his task. A copy of that report is annexed at Annex B. The Human Rights Committee is respectfully asked to treat this report as confidential because it names witnesses who wish to remain anonymous and also names alleged perpetrators. 3.3 The Dundalk bombing 3.3.1 On 20th December 1975, a bomb exploded in the border town of Dundalk, killing two people and injuring many others. Research into this bombing is at any early stage, but it appears to have some elements in common with the Dublin and Monaghan bombings. 3.3.2 The government has announced that the Dundalk bombing will also be investigated by Mr Justice Hamilton. This announcement was made without any reference to the victims, who have yet to decide whether they will co-operate with the Commission of Inquiry. 3.4 Seamus Ludlow 3.4.1 Seamus Ludlow was murdered on 1st May 1976 near Dundalk. No-one has been tried for his murder. Garda Síochána officers falsely alleged that Seamus Ludlow was murdered by the IRA because he was an informer. The inquest into his death was held in August 1976 in the absence of his family, who were not informed that it was taking place. In around 1996, information began to surface that suggested that Seamus Ludlow was murdered by four men from Northern Ireland who were members of the loyalist group the Red Hand Commando. Two of these men were also alleged to be serving officers in the army’s Ulster Defence Regiment. Furthermore, it is believed that the names of the alleged perpetrators have been on An Garda Síochána’s files since 1979. In February 1998 these four men were arrested and questioned by the RUC, but they were released without charge. British Irish Rights Watch has published a report on the murder of Seamus Ludlow, which was presented to the Irish government in February 1999, a copy of which is annexed at Annex C. Lawyers acting for Seamus Ludlow’s family have been refused sight of An Garda Síochána’s files on the murder. 3.4.2 The Irish government has announced that former Chief Justice Hamilton will look into the murder of Seamus Ludlow as part of the Commission of Inquiry established to consider the Dublin and Monaghan bombings. This decision was made without consultation with the Ludlow family and they have yet to decide whether they will co-operate with this private inquiry, which falls far short of the public inquiry they have demanded. 3.5 The Hamilton commission of inquiry 3.5.1 The Dublin and Monaghan and Dundalk bombings, and the murder of Seamus Ludlow all demonstrate a marked reluctance on the part of An Garda Síochána to open their files. All three cases raise serious questions about the relationship between An Garda Síochána in the Republic and the RUC in Northern Ireland, and about collusion between members of the security forces and loyalists paramilitaries. 3.5.2 British Irish Rights Watch is disappointed that the Irish government has opted in the first instance for a private Commission of Inquiry. Their decision contrasts sharply with their public calls for independent public inquiries in Northern Ireland into Bloody Sunday and the murder of Patrick Finucane. It is to be hoped that the Hamilton investigation will lead to public inquiries in time. 4. THE RIGHT TO A FAIR TRIAL 4.1. The offences against the state acts 4.1.1 Towards the end of 1999, the Irish government commenced a review of its Offences Against the State Acts. We understand that the report resulting from this review is due in October 2000. British Irish Rights Watch made a submission to the review, a copy of which is annexed at Annex D. 4.1.2. The original Offences Against the State Act was passed in 1939, after the IRA had embarked on a bombing campaign in Britain, and its continued existence has been largely due to fears about terrorism in Northern Ireland and its impact on Ireland. The Act came into being at a time of deep crisis in Europe, which was on the verge of the Second World War, before the existence of the human rights instruments that inform modern thinking, and at a time when the ink on the Irish constitution was barely dry. A thoroughgoing review not only of its provisions but of the philosophy behind it is long overdue, especially in light of Ireland’s decision on 7th February 1995 to declare an end to its state of emergency. 4.1.3 The Offences Against the State Acts contain a number of features that give cause for concern. These include:
4.1.4 The outcome of the government’s review of these Acts is awaited. It is to be hoped that they will abolish them, but it is feared that they will be strengthened. 4.2 The special criminal court 4.2.1 The Irish system of criminal justice is firmly rooted in the concept of trial by jury, which is protected by Article 38.5 of the Irish Constitution). However, the constitution does allow for special courts to be set up where “the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order” (Article 38.5). Part V of the 1939 Offences Against the State Act allows the government to establish a no-jury Special Criminal Court in such circumstances. In its current manifestation, the Special Criminal Court has been in continuous existence since 1972. 4.2.2 The present court has its roots in the attempt to combat terrorism. Whether such courts were ever necessary to combat terrorism, they certainly cannot be justified in today’s climate. In 1974, the peak year, 288 cases were tried by the Special Criminal Court, whereas in 1996, the most recent year for which we have figures, only 14 cases were heard, and not all of these were related to terrorism. The list of offences heard by the Special Criminal Court has been augmented over recent years to include crimes as diverse as receiving stolen goods, theft of a motor vehicle, possession of drugs for supply, stealing computer parts, causing an affray, and murder with no terrorist connection. Patrick Holland has been tried by the Special Criminal Court for importing cannabis, Paul Ward and Brian Meehan for the murder of journalist Veronica Guerin, Rossi Walsh for arson, and Joseph Kavanagh for kidnap of a banker. The most puzzling use of this power has been the decision by the DPP to send three of those accused of the murder of drug/Aids victim Joseph Dwyer for trial by the Special Criminal Court, while their nine co-accused will be tried in the ordinary courts on the same charges. 4.2.3 Serious though many of these crimes are, if it is really the case that “the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order”, something must be seriously wrong with the ordinary courts. These are crimes that any developed system of criminal justice is bound to face and must be able to confront. No less an expert than Mary Robinson has criticised the trend of trying non-terrorists in the Special Criminal Court, saying:
“… to channel persons charged with purely criminal offences to the Special Criminal Court is to abolish trial by jury by the back door.”
4.2.4 The Special Criminal Court deprives defendants of their fundamental constitutional right to trial by jury but does not confer any additional safeguards upon them in order to compensate for the disadvantage this inevitably places upon them. Those tried in these courts are deprived of their right to equality before the law. 4.2.5 In 1993 the Human Rights Committee gave its consideration to the first-ever report made by Ireland concerning its compliance with the International Covenant on Civil and Political Rights. In its conclusions it said:
“The Committee also expresses its concern with respect to the Special Court established under the Offences Against the State Act, 1939. It does not consider that the continued existence of that Court is justified in the present circumstances… The need for the Emergency Powers Act and the Special Criminal Court should also be examined and all practices in that regard should conform to the obligations of the State party under the Covenant.”
It was this judgement that led Ireland to abandon its state of emergency. The present review offers the ideal opportunity to implement the rest of the Human Rights Committee’s recommendation by abolishing the Special Criminal Court. 4.3 The Right of Silence 4.3.1 When someone is detained under s. 30, s. 52 gives a Garda the power to demand “a full account of such person’s movements and actions during any specified period and all information in his possession to the commission or intended commission by another person of any offence” under the Act or any scheduled offence. Failure to comply with such a demand or giving a false or misleading response are themselves offences that can incur up to six months’ imprisonment. 4.3.2 These provisions clearly remove a person’s privilege against self-incrimination and deny the right to remain silent, in breach of Article 14 (3) (g) of the International Covenant on Civil and Political Rights. Notwithstanding this, there have been a number of recent convictions under these powers and the Supreme Court has declared them constitutional in the case of Anthony Heaney and William McGuinness v Ireland and the Attorney General, although earlier this year in another case, In re National Irish Bank Ltd, the Supreme Court appears to have ruled that answers to a demand made under s. 52 are not to be admissible in a criminal trial. The powers are currently the subject of three separate challenges before the European Court of Human Rights, all of which have been ruled admissible by the Court. 4.4 New Powers 4.4.1 Despite the overall decline in violence since the ceasefires of 1994, Ireland has continued to introduce new, draconian powers. For example, in 1996 Ireland introduced seven-day detention for those accused of drug trafficking. British Irish Rights Watch made representations to the Dáil, a copy of which is annexed at Annex E, arguing against the introduction of these powers, which mirror emergency laws in Northern Ireland. 4.4.2 Both the British and Irish governments reacted to the appalling bombing of Omagh in August 1998 by bringing in yet more repressive laws. In Britain, evidence from a senior police officer is enough to convict someone of membership of a prescribed organisation, and suspects’ silence under police questioning will be taken as corroborative of that evidence. In Ireland, similar provisions apply. Ireland also brought in for the first time a whole tranche of provisions that mirror those that have been in place in Northern Ireland for many years, including wider restrictions on the right of silence, extended detention, and the creation of many new offences such as collecting and withholding information. These measures are a recipe for potential miscarriages of justice. We have always argued that there was no need for the panoply of emergency laws in the past, and there is certainly no rational case for bringing in extra laws at this stage of the peace process. We understand the pressure both governments are under after such an atrocity, but we are depressed that they have not learnt from past experience that hasty law making in the wake of such disasters leads to bad laws and rough justice. 4.5 Lack of Due Process Rights 4.5.1 Lawyers in Ireland have no right to be present when their clients are questioned by the police. Moreover, legal aid (financial assistance) is not available for attendance at police stations. This situation not only deprives suspects of access to legal advice at the time when they most need it, but it removes a vital safeguard against ill-treatment. This is particularly serious in view of the fact that the Offences Against the State Act allows for detention for up to 48 hours, compared to 12 hours in ordinary cases, and abrogates the right of silence (please see section 4.3 above), while the Criminal Justice (Drug Trafficking Act) 1996 allows for seven-day detention (please see Annex E). Not only should lawyers be allowed to remain during interrogations, but all interviews should be video-recorded with sound. 4.5.2 Defendants tried in the Special Criminal Court have fewer due process rights than others, leading to inequality before the law. Special Criminal Court defendants are routinely deprived of the right to a preliminary examination of the case against them, unlike other defendants. 4.6 Complaints against the police 4.6.1 Although Ireland set up the Garda Síochána Complaints Board in 1986, it is a toothless tiger, largely because it is dependent upon police officers to carry out investigations, so the police investigate themselves. Lawyers complain that complaints against the police are almost never upheld. Furthermore, the police have been known to sue people who criticise them for libel. 4.6.2 The European Committee for the Prevention of Torture has criticised the police complaints system in both its 1993 and its 1999 reports on Ireland. 4.6.3 British Irish Rights Watch supports the call by the Irish Council for Civil Liberties for the replacement of the current scheme with a fully independent police ombudsman or commission. 5. TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT 5.1 On 7 June 1996 Detective Garda Jerry McCabe was shot dead and Detective Garda Ben O’Sullivan was wounded in the village of Adare, County Limerick in a bungled robbery attempt apparently carried out by members of the IRA. The two Gardai were escorting a lorry delivering money to local post offices. The murder of Garda McCabe and the wounding of his colleague caused great anger in Limerick, where they lived. The investigation into the murder was based at Henry Street Garda Station in Limerick, where Garda McCabe and his colleague had worked. Within hours of the shooting, Gardai began to arrest people under the Offences Against the State Act 1939 and detain them for questioning. Their suspicions seem to have focused on a number of men who lived in the general Limerick area but who had not been apprehended at that time. The Gardai concentrated on arresting their family members, friends, associates and even neighbours. 5.2 Two men who were arrested on 8 and 9 June 1996 appeared in the Special Criminal Court in Dublin on 11 and 12 June 1996 respectively. When the first of the two, Jeremiah Sheehy, was remanded in custody to Portlaoise Prison (where paramilitary-linked prisoners are held), the usually reticent Department of Justice took the very unusual step of announcing that he had been found “to have some injuries” and had been taken from the prison to hospital for further examination. The second man, John Quinn, was taken to Limerick Regional Hospital four times during his detention and when he appeared in the Special Criminal Court had to be helped into the dock and lifted to his feet when the charges were read out. His barrister told the court that he had injuries to the face and body and that his physical and mental condition gave cause for concern. She said that she had been instructed that he had received these injuries while in Garda custody. He too was referred to hospital on his arrival at Portlaoise Prison. A third man was subsequently arrested and charged on 20 June 1996 with IRA membership and possession of a firearm at Adare. He did not claim that he had been subjected to any physical brutality. 5.3 On 16th July 1996 it was announced that senior Garda Síochána officers were investigating allegations about ill-treatment of other people who had also been detained for questioning in connection with the murder of Garda McCabe. The results of this investigation have never been officially made public but it seems it has exonerated all the Gardai concerned. 5.4 In the circumstances, the Irish Council for Civil Liberties and British Irish Rights Watch decided to conduct an investigation into the allegations of ill-treatment with a view to presenting the results to the Irish Government and to international human rights agencies. The two NGOs published a report into the allegations, a copy of which is annexed at Annex F. 5.5 When an ICCL/BIRW representative (who is an experienced criminal barrister) went to Limerick in November 1996 to speak to some of those who had provided statements for our research, she was herself effectively detained for one and a half hours in a Limerick hotel by a detective from Henry Street Garda Station. 5.6 Our report details a disturbing catalogue of alleged abuse and ill-treatment by Garda Síochána officers. The government has not acted on our report.
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