Don’t Mention the War:
The Court of Appeal, the Criminal Cases Review Commission and Dealing with the Past in Northern Ireland.
Hannah Quirk
Keywords: Criminal Cases Review Commission, Northern Ireland Court of Appeal, Transitional Justice, Truth-recovery, Miscarriages of Justice.
Despite the vast transitional justice scholarship relating to prisoner release, amnesties and prosecutions when conflicts end, there is a significant gap in practice and the literature regarding wrongful convictions. Uniquely amongst post-conflict societies, Northern Ireland has a body for investigating miscarriages of justice,albeitone designed for ‘ordinary’ appeals. In the absence of a formal truth-recovery process, criminal appeals are becoming a proxy for addressing the role of the state during ‘The Troubles,’ as well as remedying individual injustices. This article examines theapproachof the Northern Ireland Court of Appeal during the conflict. It charts the developments in its decision-making following the cease-fires and the establishment of the Criminal Cases Review Commission. It concludes that the current system is unsatisfactory as itignores the effects of the conflict on the appeal process, and offers no insights into the role of the Court during the conflict. Alternative models are suggested.
The history of miscarriages of justice in Britain has been shaped fundamentally by the ‘Troubles’ in Northern Ireland. ‘Catalytic cases’[1] related to IRA bombings in England, such as the Guildford Four and Birmingham Six,[2] led to a crisis of confidence in the criminal justice system in the early 1990s.In response to these cases, the Royal Commission on Criminal Justice (RCCJ) was established,[3]followed by the creation of the first state-funded body in the world to investigate suspected wrongful convictions, the Criminal Cases Review Commission (CCRC).[4] Cases linked to the Northern Ireland conflict subsequently defined a miscarriage of justice for the purposes of the UK-wide statutory compensation scheme.[5]Yet these cases were heard in the English courts, Northern Ireland was omitted from the terms of reference of the RCCJ and, until recently, the CCRC had relatively few applications from Northern Ireland. Whilst the ‘emergency provisions’ that governed arrest, detention and trial in Northern Ireland were the subject of numerous official reviews[6] and challenges in both the domestic courtsand the European Court of Human Rights (ECtHR),[7] the focus in such cases was more on whether the measures infringed civil liberties generallythan on their risk of causing individual miscarriages of justice.[8] Although anyone convicted by a jury-less ‘Diplock’ Court was entitled to an appeal as of right[9](rather than having to follow the usual procedure of seeking leave from the Court of Appeal or a certificate from the trial judge),[10] surprisingly few took this route. With little attention from Britain and a lack of apparent mobilisation in Northern Ireland, as Dickson observes, ‘[a]myth has thus been constructed that Northern Ireland has had very few, if any, such miscarriages.’[11]
The criminal justice and political landscape has changed dramatically in Northern Ireland over the last two decades. Following the paramilitary cease-fires and lengthy political negotiations, most of those imprisoned during the conflict have been freed, either having served their sentences, or under the early-release terms of the 1998 ‘Good Friday’ Agreement.[12] As part of the Agreement, there have been far-reaching reviews of policing and reforms of the criminal justice system,[13] but most of these choseto be ‘forward-looking’ rather than to scrutinise the role of criminal justice actors during the conflict.[14] Unlike many other similar accords, the Agreement made no provision for the establishment of a truth commission. In the absence of such an over-arching mechanism, there has been a myriad of initiatives for ‘dealing with the past’.[15] These have included public inquiries into controversial deaths,[16] the work of the Office of the Police Ombudsman,[17] a ‘cold-case’ review led by the police officers of the Historical Enquiries Team,[18]hearings before the Coroners’ Courts, and civil society-led, ‘bottom up’ initiatives.[19]
This is the political and legal context within whichthe focus on historic miscarriages of justice in Northern Ireland has emerged. As the Director of the mainstream IRA ex-prisoners’ network has argued, applications to the CCRC can serve as an informal truth recovery mechanism ‘to explore all the wrong-doings that went on in the barracks and police stations’.[20] Former Republicans in particular appear to view the CCRC as a potential counterweight to what they regard as the ‘one-sided,’ paramilitary-focusedexploration of the past by the Historical Enquiries Team. Indeed former IRA prisoners workedwith local lawyers and human rights activists to establishthe Irish Centre on Wrongful Convictionsin 2012. This organisation was established to assist individualsinsubmitting applications to the CCRC, to campaign for changes to how these cases are investigated and to campaign for ‘an independent inquiry into police brutality and judicial malpractice during the civil conflict’.[21]
The past three decades have seen an exponential growth in transitional justice scholarship and policy linking the transitionalprocess and ‘dealing with the past’.[22] Whilst the respective merits of prosecutions versus truth recovery have been discussed extensively,[23] and issues of amnesties or prisoners release feature almost inevitably as part of any political settlement,[24] there remains a significant gap in the literature and practice concerning those who may have been wrongly convicted during conflicts. The Northern Ireland transition is unique in that a statutory body with significant legal powers exists in order to investigate possible wrongful convictions that occurred during the conflict. This was not the purpose for which it was established, however. In effect, such cases are being dealt with by an institution that was designed to meet the needs of ordinary criminal justice in a settled democracy, rather than the exceptionalist institutions, such as truth commissions or amnesty processes, commonly associated with transitional justice. The CCRC deals with these cases as it would any other application even though, as former CCRC Commissioner Laurie Elks has noted, ‘…the past appears… to have had a somewhat different resonance in Northern Ireland miscarriage cases.’[25]It is axiomatic that criminal proceedings are not engaged in a quest for truth,[26] rather they test whether or not the prosecution has established legal guilt to the required standard in accordance with the evidential rules in place. What is of particular interest in the context of Northern Ireland, however, is that the CCRC’s investigations ‘have shone some new light on the very stringent methods employed in Northern Ireland in dealing with suspected sectarian and paramilitary offences during the Emergency.’[27]
Framed by this broader context of the political transition, this article examines the developing approach of the Court of Appeal in Northern Ireland (NICA) to dealing with conflict-related CCRC referrals, and considers some of the implications of this for the role of the courts both before and after the ceasefires. Part one begins with an examination of the approach the NICA took to appeals during the conflict, in particular regarding the restrictive evidential framework under which it then worked. This historical context is essential for, as Packer argues, ‘the appeal is important out of all proportion to numbers because the appellate level of the criminal process is where the governing norms are made explicit.’[28] Appellate decisions can influence what conduct is seen as permissible at all levels of the criminal justice system, in particular at the police station. Post-conflict, these cases offer an opportunity to pronounce judgement on the methods used to achieve - and sustain-convictions in extraordinarily difficult circumstances.Part two examines the referrals made by the CCRC and argues that that they appear to suggest a change in the attitude of the NICA after the conflict ended. Applications from Northern Ireland have been referred to the appeal courts at about three times the rate of all CCRC applications and about 90 per cent of the convictions referred have been quashed (compared to around 70 per cent overall). The Court has, however, scrupulously avoiding apportioning blame or criticism for the conduct that led to the convictions being quashed or the decisions of the trial judges, and has made no reference to its own role in previously upholding these convictions. The Court appeared to be developing a striking new policy, quashing convictions obtained after the denial of access to legal advice but, following a lengthy hiatus, it recently issued a judgment that appeared to revert towards a narrow, positivist, legalistic approach.[29] Part three addresses the wider issue of whether the CCRC and the NICA are being asked to perform tasks for which they are unsuited. The British government’s attempts to keep its response to the conflict within an approximation of the ordinary criminal law made it easier to achieve convictions and now make it harder for those appealing these decisions. Justice may be impossible to achieve within the ordinary, post-appellate mechanism for many individuals and the potential scale of the task could overwhelm both the CCRC and NICA, whilst frustrating those who seek a revelatory account of the circumstances in which these convictions occurred. There may be significant financial implications and political disaffection if large numbers become eligible for compensation payments.[30] The article concludes by considering alternative measures for dealing with these issues in the absence of a truth recovery mechanism.
- Questioning, convictions and the courts during the conflict
The legal framework governing the arrest and interrogation of suspects in Northern Ireland during the conflict differed significantly from that in England and Wales, sharply so for those suspected of terrorism-related offences. ‘The Troubles’ began in the late 1960s with the frustrations of the civil rights movement, a rapid rise in political violence, the deployment of British troops, and the re-imposition of direct rule from Westminster in March 1972. The re-introduction of internment without trial for those suspected of terrorism proved both unsuccessful (in security terms) and alienating to the Catholic community in particular (against whom it was primarily addressed)[31] and the situation appeared to be spiralling out of control. In 1972, 467 people were killed, there were 10,628 shooting incidents and 1853 bombs either exploded or were defused.[32] In response, the British government established the Diplock Commissionto consider‘what arrangements for the administration of justice in Northern Ireland could be made in order to deal more effectively with terrorist organisations … otherwise than by internment by the Executive.’[33] Its report led to the first of the Emergency Provisions Acts (EPA), which created a more permissive regime for the investigation and trial of terrorist suspects.
Greer identifies two features of the EPA 1973 which highlight ‘the unique legal context’ in which it operated: the shift from pre-arrest acquisition of evidence to post-arrest interrogation; and the move from the determination of guilt or innocence by judge and jury, to judicial determination of the admissibility of confessions (which, in the absence of other evidence, essentially settled the verdict).[34] In the most notorious and long-lasting change, defendants in ‘scheduled’ offences were tried by a judge sitting without a jury in what became known as Diplock Courts,[35] the Commission having concluded that jury trial was‘not practicable because of the threat of intimidation of witnesses’[36] and the risk that Loyalist defendants would be perversely acquitted by predominately Protestant juries.[37] Under the ‘Emergency’ legislation, the army could arrest and detain suspects for up to four hours before handing them over to the police.[38] At first, the police could detain suspects for up to 72 hours,[39]UK-wide legislation then extended this to up to seven days, subject to the approval of the Secretary of State.[40] Derogations were entered to the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights in relation to the extended periods for which suspects could be detained without charge. Access to legal advice could be delayed for up to 48 hours.[41] This power was supposed to be invoked only where the police had reasonable grounds for suspecting that access might lead to interference with evidence, or the alerting of other suspects, but, in practice, it was exercised routinely.[42]In practice, solicitors were not usually allowed to see terrorist suspects before they were charged.[43] Police officers were instructed not to tell suspects that they were entitled to see their solicitors.[44] Even when access was allowed, consultations usually lasted less than thirty minutes.[45] The courts restricted the right further, holding that it was the intention of Parliament that solicitors should not be present at the interviews of terrorist suspects.[46] Whilst the (non-statutory) Judges’ Rules and RUC Code[47] stated that juveniles should not be questioned without a parent or appropriate adult present, this too was denied routinely and confessions obtained in such circumstances were usually admitted.[48]In terrorist cases, parents were rarely admitted into the interview room when the juvenile was aged over 15.[49] Suspects were questioned intensively by shifts of officers for long periods. The conditions in the holding centres and police offices were criticised repeatedly by official reviews and human rights organisations.[50]As credible allegations of ill treatment grew,limited safeguards were introduced to reduce the physical abuse of suspects[51] although claims of torture and inhumane treatment continued into the 1990s.[52]
A source of concern from early on was the number of convictions based almost solely on confessions, which ‘have long been the cornerstone of most terrorism-related cases put before the non-jury “Diplock” courts in Northern Ireland.’[53] In the 1970s the Director of Public Prosecutions (DPP) stated that the prosecution case rested wholly or mainly on a confession in 75-80 per cent of cases.[54] Under the common law, confessions were admissible only if made freely and voluntarily. Section 6(2) EPA created a lower threshold, requiring the prosecution to establish only that the confession had not been induced by torture or inhuman or degrading treatment (a standard derived from Article 3 of the ECHR). The courts held that the mere absence of voluntariness was not, by itself, a reason for the discretionary exclusion of a statementat common law.[55] No statistics were kept on the number of defendants alleging their confessions were obtained by coercion.[56] Most of the CCRC referrals, discussed below, have been of such cases, and the Irish Centre on Wrongful Convictions has said that it will focus its efforts on these convictions.[57]
The culture of the judiciary and legal profession in Northern Ireland has been researched extensively.[58]In reflecting on the role of the Diplock courts, Jackson describes the judges as having been handicapped by a combination of: the more relaxed standard imposed by Parliament; the difficulty of deciding between the conflicting (and often implausible) accounts of suspects and the police; and the challenge of performing a fact-finding function in addition to their judicial role.[59] Before the EPA, the courts had excluded confessions obtained in a detention centre that had been set up explicitly to obtain information from those who would be less than willing to give it.[60] Following the emergency legislation, the NICA held that, whilst it retained a broad[61] discretionary power to exclude astatement, this should not be exercised so as to defeat the will of Parliament,[62] which had clearly intended to change the law to ‘render admissible much that previously must have been excluded’.[63]Parliament intended that ‘statements made by a suspect after periods of searching questioning whilst in custody should be admitted in evidence, notwithstanding that at the outset the suspect did not wish to confess and that the interrogation caused him to speak when otherwise he would have stayed silent.’[64] The NICA was not entirely accepting of every prosecutorial submission, however. Having first accepted the view of the European Commission that it was ‘open to an interviewer to use a moderate degree of physical maltreatment for the purpose of inducing a person to make a statement,’[65]the Court subsequently found it difficult to envisage being satisfied that evidence would be admissible following any form of physical violence.[66] It held that it could exclude confessions in cases in which there had been ‘bad or doubtful conduct or trickery or dishonesty in conducting an interview or investigation’.[67] The NICA elevated the standard to beyond reasonable doubt for the prosecution to establish that a confession had not been obtained by torture, inhuman or degrading treatment.[68] It also confirmed that the EPA had not abolished the judicial discretion to exclude statements in the interests of fairness.[69] This discretion was rarely exercised, however, and the courts were reluctant to find that verbal mistreatment alone could constitute inhuman or degrading treatment.