THE POLITICS OF BRITAIN'S LEGAL, JUDICIAL AND SECURITY SYSTEM IN "NORTHERN IRELAND" D. O'Cearnaigh Sinn Fein International Publicity and Information Committee CONTENTS INTRODUCTION P. 3 CHAPTER ONE - THE HISTORICAL ROOTS OF THE SYSTEM P. 7 CHAPTER TWO - DYNAMICS OF EMERGENCY LEGISLATION P. 13 CHAPTER THREE - THE ROLE OF ARREST AND INTERROGATION P. 21 CHAPTER FOUR - NEUTRALISING RESISTANCE: THE COURTS AND DETENTION P. 32 CHAPTER FIVE - NEUTRALISING RESISTANCE: SHOOTING TO KILL P. 46 CONCLUSION P. 56 FOOTNOTES P. 59 BIBLIOGRAPHY P. 62 APPENDIX: CHRONOLOGY P. 64 INTRODUCTION This study investigates the development and operation of the legal, judicial and security system in the occupied Six Counties of the North of Ireland within the context of Britain's denial of the Irish people's right to national self-determination. It is a system which has spawned incalculable hardship and misery. Imprisonment, perjury, torture, injury and death are but the outward features of its use. Untold mental anguish and social disruption are the less visible results. In conjunction with concomitant economic and political structures comparable only with the apartheid regime in South Africa, the "Northern Ireland" state constitutes the most repressive state in Western Europe. Its very existence breaches all internationally recognised conventions on democratic and national rights. it contravenes the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples; Article 6 of which states: "Any attempt aimed at the partial of total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the U. N." Moreover, Britain's occupation derogates the Irish people's right to sovereignty, independence and unity as enshrined in the International Convention on Civil and Political Rights and directly perpetuates popular resistance by the nationalist community. A considerable range of elements bolster Britain's capacity to preserve its interests in Ireland and to exact the repression arising from its occupation. Central to the methods employed is the legal, judicial, and security apparatus. The roots of the present system stem back to the establishment of the "Northern Ireland" state 68 years ago. However, emergency legislation has been in existence throughout Ireland for considerably longer. In fact since 1870, over 60 pieces of emergency law have been enacted in Ireland. Since 1969, the rule of law in the "Northern Ireland" has become totally subordinate to the demands of the theory and practice of counter-insurgency enunciated by the British general, Frank Kitson. With the onset of the latest phase of resistance to British occupation, the British government has unashamedly dissolved any pretence towards the "normal" administration of justice in "Northern Ireland". The law has been comprehensively geared towards a harmonisation with broader political and military strategies designed to stabilise British rule. Kitson advocated in 1971 that : "The law should be used as just another weapon in the government's arsenal..."and that, for this to be : "The activities of the legal services have to be tied into the war effort" (1). The following study will provide incontrovertible evidence that this objective has been achieved. Currently in "Northern Ireland" Britain retains two legal systems, one of which implements the common law as applied within the greater British legal jurisdiction, and a second which fundamentally alters crucial aspects of the common law in respect to arrest, interrogation and court proceedings. Consequently, rights extended to those arrested under common law can be simultaneously denied to individuals detained under emergency legislation. The existence of much of this legislation and the operation of the legal and security system has been successively found to be in breach of international law. Furthermore, the design of the legislation itself has implicitly and explicitly provided the security agencies with vast powers resulting in horrific consequences. The political nature of the legal and security system is evidenced by the history of collusion between the various legal and security agencies. On occasions when abuses under emergency legislation have been so acute that the state has been impelled to account for its agents' excesses under the judicial system, the judiciary and other state agencies have closed ranks and deflected the outcry. The following chapters explore in detail the political construction of the legal system and examine its application by the state agencies. The first chapter places the basis for the present system into its historical context, demonstrating that the initiation of a particular form of legal, judicial, and security system was integral to the consolidation of the intended one-party state. The second chapter analyses the core of this system by focusing upon the Emergency Provisions Act and the Prevention of Terrorism Act. The third section deals with arrest and interrogation procedures provided for by emergency legislation and administration by the security agencies. The subject of courts and detention is addressed in the fourth chapter, whilst the execution of the shoot-to-kill strategy by the state will be analysed in the next. The final chapter summarises the effects of the operation of this dimension of British rule and develops the conclusion that these apparatuses and others presently used are inherent to the negation of Irish national self-determination. CHAPTER ONE THE HISTORICAL ROOTS OF THE SYSTEM The Partition of Ireland in 1921 by the British government resulted in the annexation of the six north-eastern counties - Antrim, Down, Armagh, Tyrone, Fermanagh and Derry, and the establishment of the six-county state of "Northern Ireland" Direct governmental administration for this colony was devolved by the British to the Ulster Unionist Party and, for a further 51 years, British economic and political dominance throughout Ireland was mediated by a one party state in the 6 counties under unionist control. The exercise of unionist government was to be as anti- democratic as was the original manufacture of the state. Britian's decision to partition Ireland was in direct contravention of the results of two successive all-Ireland elections in 1918 and 1920, when the overwhelming majority of the Irish electorate voted in favour of national independence. However, within the national electorate, a minority voted in favour of continued union with Britain. This minority was principally concentrated in Counties Antrim, Down and Armagh. It was a feature of hundreds of years of systematic colonisation that this national minority which favoured unionism was of the Protestant religion. In spite of the democratic wishes of the Irish people the British government reneged on its own constitutional framework and determined to construct a new "Northern Ireland" state under the Government of Ireland Act 1920. The decision to include the nationalist counties of Tyrone and Fermanagh in the new state was critical to guarantee its economic viability, yet this decision simultaneously created a serious political and structural contradiction for the unionist government. Sizable nationalist populations existed in areas of Counties Antrim, Down, Armagh and Derry, most notably in Derry city. But the inclusion of Counties Tyrone and Fermanagh within the new state increased the overall nationalist population and, therefore, although unionism and Protestantism became the dominant forces, a large nationalist minority also existed. Aware that its establishment was at variance with the democratic mandate of the Irish people and that Britain had been physically removed from the southern 26 counties by the prosecution of the Irish Republican Army's campaign, the unionist government perceived itself to be under permanent threat. It concluded that the immediate source or any threat to the well- being of the state resided with the nationalist minority and, consequently, nationalists were regarded with a deep political suspicion, fed by an ideology of Protestant supremacy. On this basis, the unionist party commenced the installation of a complex of apparatuses designed to consolidate unionist/Protestant hegemony and to stem any challenge to the unionist party's control from within the nationalist community. The ethos of the Six-County state was summed up by Prime Minister Craigavon in April 1934 when he declared: "All I boast is that we have a Protestant Parliament and a Protestant state." (1) A permanent state of siege was presided over by the unionist party. From the outset, a system of economic and political apartheid consigned the nationalist minority to a position of permanent political and economic powerlessness and social inferiority. Nationalists were denied access to employment and adequate housing under a comprehensive apparatus of sectarian discrimination. This was reinforce with devastating effect by the Local Government Act 1923 which abolished the proportional representation method of voting. Later, a local government boundaries commission gerrymandered local government to the extent that even local nationalist majorities became controlled by unionist dominated councils. The apartheid-like economic and political structures of the new state, necessary to secure unionist rule and preserve British interests, were coupled with the installation of a system of emergency legislation and state security apparatuses. The central component of this system was the Civil Authorities (Special Powers) Act 1922 (SPA) This legislation empowered the Minister of Home Affairs of the unionist government to have power in respect of all persons, matters, and things, to take all steps to preserve peace and maintain order in "Northern Ireland". It expressly provided for the introduction of the death penalty for firearms and explosives offences, and flogging as well as imprisonment for others, for the prohibition of inquests and for arrest without warrants. It also empowered the Minister to make further regulations, each with the force of a new law, without consulting parliament, and to delegate his powers to any Royal Ulster Constabulary officer. The most alarming section of the SPA prescribed that: "If any person does any act of such a nature as to be calculated to be prejudicial to the preservation of the peace or maintenance of order in Northern Ireland and not specifically provided for in the regulations, he shall be deemed to be guilty of an offence against the regulations."(2) Later, the SPA acquired more far-reaching powers including the power to impose indefinite internment, ban publications, outlaw organisations, serve exclusion orders on named persons, and to examine and seize bank accounts. All of these powers were exercised, in particular the power to intern which led to the indefinite detention without trial of nationalists by the unionist government from 1922-45, 1956-61, and again in 1971-75. The extent of the power of the SPA was so comprehensive and unrivalled that it prompted Mr. Vorster, South African Minister for Justice, to say April 1963 that he "would be willing to exchange all the legislation of that sort for one clause of the Northern Ireland Special Powers Act." (30 Setting the SPA into its historical context and purpose, Boyle et al have describe the legislation thus: "The powers of arrest and detention under the SPA as it was generally known, were not formally directed against Roman Catholics and republicans, but it was common knowledged that it was against them and them alone that it was directed and used... in this way the unionists made use of the legal system to secure themselves both against peaceful political challenge and against internal and external attack."(4) The SPA was renewed annually until 1928 when it received a five-year extension. In 1933, it was rendered permanent and remained in existence until its repeal in March 1972. The broad remit of the SPA was augmented by two further pieces of legislation in 1951 and 1954 with the Public Order Act (POA) and the Flags and Emblems Act respectively. Each extended and enhance unionist government proceeded to amend and strengthen the POA. Inherent to the administration of the state's unbridled legal system was a unionist judiciary whose world view merged totally with that of the ruling party. Indeed, many of the judiciary were former leading unionist politicians. Judge Curran typified this judiciary and personified the unionist view that to preserve unionist and British interests the state had to be placed on a sectarian offensive. Advising the removal of all forms of power from nationalists, he said: "The best way to prevent the overthrow of the government by people who have no stake in the country and have not the welfare of the people of Ulster at heart is to disenfranchise them."(5) Together with the institution of the all-encompassing power of government contained in the SPA, the unionist state formed apparatuses to execute and enforce these draconian laws. This responsibility was devolved to two state security agencies: The Royal Ulster Constabulary (RUC) which was ostensibly intended to perform regular policing functions but in reality was a heavily-armed paramilitary force recruited almost exclusively from the unionist population; and the "B" Specials force which was exclusively unionist in formation. It performed a support role to the RUC and was also heavily armed. Both the RUC and "B" Specials were perceived by the nationalist community to be overly partisan forces, synonymous with the extreme repressiveness of the state and as military appendages of the unionist party. The sectarian history of each has been extensively documented since their formation.(6) The atmosphere of the state was captured in a 1936 National Council for Civil Liberties investigation into the SPA. This report concluded that a permanent machine of dictatorship had been developed by the unionist state which compared to the fascist regimes then current in Europe. It was an apt comparison. Rule of law for the next 51 years under the unionist party was substitued by a frightening battery of legal measures employed vigorously by specially created state agencies against the nationalist minority in order to enforce its quiescence. CHAPTER TWO DYNAMICS OF EMERGENCY LEGISLATION The resurgence of the struggle for national self-determination in the aftermath of the unionist backlash to the campaign for internal reform by the Civil Rights movement, in conjunction with the international furor against the re-introduction of internment without trial in 1971, subsequent torture of internees and the events of Bloody Sunday in 1972, forced the British government to prorogue the unionist government that same year. With the resultant re-establishment of direct British rule, a process commenced of reviewing the legal, judicial and security system. Internment and its torturous manner of application by the unionists had become a serious international embarrassment to the British. Consequently, the first step taken with the reversion to direct rule in 1972 was to re-align the internment policy with a system of judicial hearings. Thus was cultivated the semblance of conviction for an offence to obtain a person's indefinite detention. Moreover, the existing judicial precess even combined SPA did not have the desired effect. Overriding common law rules on the admissibility of statements of admission prevented the conviction of many detainees from whom such statements had been extracted under intensive interrogation. Accordingly, a security review was launched to construct enhanced methods for obtaining an increased conviction rate of republican activists in in 1972 by examining amendments to the law. This review took the shape of the Diplock commission. The commission recommended that, in respect to "terrorist" offences, jury trial be abolished. It also proposed the introduction of amended rules governing the admissibility or statements or admission and concerning the onus of proof in firearms cases. Furthermore, it advocated wider powers of arrest for the security agencies. These measures were accepted and incorporated into the NI (Emergency Provisional) Act (EPA) 1973. It was slightly amended in 1975 and re-enacted in a consolidated form in 1978. The EPA specifically provides for abolition of jury trials: reversals in common law provisions relating to the admissibility of statements of admission; exceptions to bail applications; the shift of the burden of proof onto the accused in cases involving possession of munitions; and, with respect to special powers for searching premises and members of the public, general arrest and detention powers for security agencies have been expended. Notably, the power to intern remains on the statute books. The EPA also provides for confiscation of property and land and the closure of public highways. The EPA 1973 was introduced to replace the SPA, which was repealed in 1972. However, it is widely observed to be even more repressive than the SPA. Comparing the EPA to its legislative predecessor, Walsh comments: "It was a repeal in name only, however, as the 1973 Act also conferred wide powers of arrest on the RUC.. in fact, in many ways the 1973 Act represented a retrograde step as far as the rights of the citizen are concerned. It put the authorities in the position where they could represent themselves as using the "normal" judicial procedures when, in fact, the procedures they were using consisted of special powers of arrest, non jury "Diplock" courts and special rules of evidence." (1) In April 1983, the British government appointed Sir George Baker to review the operation of the EPA. Yet, apart from a few minor concessions to the Act's critics, Baker's report in 1984 endorsed all the major derogations from normal legal standards which had been in existence form 1973. (2) Thus, the new EPA was passed in 1987 with only minor alterations to what went before. Supplementary to the EPA was the Prevention of Terrorism (Temporary Provisions) Act 1974 (PTA). Contrary to common perception, this legislation was not a response from the authorities to the Birmingham bombings of 1974. The measures contained in the Act had been formulated some time previously, were drawn extensively form its legislative precedent, the Prevention of Violence Act 1939 (then introduced to combat a campaign of IRA operations in Britain) and were intended to synthesise with the EPA. Unlike the EPA, the remit of the PTA extended throughout British and "Northern Ireland". Moreover, its infringements upon basic human rights are even more far-reaching, so much so that Roy Jenkins, the then British Home Secretary, when introducing the PTA in 1974, was forced to concede that: "These powers are draconian." (3) The PTA was enacted in 1974, modified and re-enacted in 1976, and again in 1984 after a review by Lord Jellicoe. Since 1984, it has had a finite life of five years with annual reports compiled and presented to the British parliament before each renewal debate. The PTA provides for the power to ban organisations in Britain. Significantly, only Irish republican organisations are named - membership of loyalist death squads is legal in England, Scotland and Wales! Displaying or encouraging support for Irish republicans organisations is an indictable offence. The PTA further places onto the statute book as an offence, contributing to political violence, and failure to disclose knowledge about "terrorist" activities. Sections 3 to 9 of the Act provide for exclusion of persons form Britain and "Northern Ireland" under a system of political exile, which allows no appeal and requires no justification from the authorities. Three-hundred-and eighty-two persons have been served with such exclusion orders between 1974 and 1988. Extensive arrest and detention powers have been prescribe under the PTA. Hail reports that they extend far beyond those provided for under current common law (4). The legislation allow for detention incommunicado for up to 48 hours and ongoing detention for interrogation for seven days. Each of the provisions has been successfully challenged under European Law. In MCVEIGH, O'NEILL and EVANS v the UNITED KINGDOM, the European Commission found that where a wife or husband of a detained person was not contacted for 45 hours following the arrest, this delay was in breach of Article 8 of the European Convention on Human Rights. In a more recent judgement, which is examined in the next chapter, Britain has been indicted by the European Court of Human Rights for human rights abuses arising from the PTA detention orders. The PTA is due to lapse in 1989. However, far from being renewed on this occasion, the British government has determined it shall be rendered permanent. The new act will be extended to include the confiscation of funds of individuals and groups and shall include a cut in the rate of remission afforded to prisoners from one-half to one-third. Exclusion orders are to be retained and more expansive search measures introduced. This decision to make permanent the new Prevention of Terrorism Bill (PTB) must be seen in the wider political context of an escalation of state repression in "Northern Ireland" since summer 1988. A programme of widespread and systematic searches of thousands of nationalist homes and private property has paralleled the announcement by the authorities on the October 19th 1988 of the removal of the long enshrined right to silence from detainees. Additionally, the RUC have been given alarming new powers to forcibly obtain mouth swab samples from detainees to allow DNA forensic testing (forensic fingerprinting) to be undertaken. More restrictions in the exercise of the electoral process directed specifically at Sinn Fein candidates have been introduced in the Elected Authorities Bill (NI). This legislation will deny recently-released prisoners the right to stand for election and demands that all candidates should sign an anti-violence declaration. That such an enhancement of power in the provision of "emergency" legislation should coincide with generalised and accelerated repression against nationalists comes as no surprise. The enactment of the EPA formally heralded the commencement of a British counter-insurgency strategy to be enforced at all levels. This strategy had as its objectives the criminalisation, normalisation and Ulsterisation of the struggle for national self-determination. In essense, this strategy necessitated the installation of a legal and judicial apparatus which would process political offences through ostensibly "normal" courts, thus encouraging the thesis that the conflict was but a criminal conspiracy. Normalisation demanded the manufacture of social and economic conditions to bolster the pretence that "Northern Ireland" was a thriving society, no different from Britain. Ulsterisation involved the reduction of the British army's role by placing the locally recruited Protestant militia, the Ulster Defence Regiment (UDR) into the frontline along with increased RUC "policing" responsibilities. All of these objectives were of course mutually reinforcing. However, central to this British government thinking in 1971-72 was the analysis that the basis of any such counter-insurgency strategy would be the alteration of the entire legal process. Apart from the benefits such changes would reap in terms of increased convictions, the British proposed to internationally de-legitimise the struggle for national self- determination by portraying it as a localised sectarian and criminal feud. This was to occur against a backdrop of the new judicial Diplock system, the phasing out of internment, as recommended by the Gardiner Report 1975, its replacement with the RUC in security. The above re-evaluation of British government tactics and strategies stemmed directly from the reintroduction of direct rule and the dissolution of the unionist devolved Assembly. International opprobrium had undermined the unionist government as the optimum mechanism for preserving British interests in Ireland. A new set of conditions now prevailed and a new method for re-asserting British dominance was required. Consequently, direct British dominance was required. Consequently, direct British rule was reimposed and with it the comparatively crude forms of unionist control were abandoned in favour of the sophistication of criminalisation and its component parts. The EPA and PTA since the 1970s have facilitated Britains's criminalisation process and its overall war effort in "Northern Ireland". They are unequivocally political in design and intent. Without their existence, Britain's capacity to repress political opposition to its' continued occupation of Ireland would be considerably diminished. In accomplishing its assigned role, "emergency" legislation has been ruthless in the erosion of basic human rights guaranteed under common law. Clever obfuscation of statistics and data makes the results of the implimentation of the legislation difficult to quantify but the impact has been devastating. One source suggests that possibly as many as 1 to 2 million people have been stopped and questioned entering and leaving Britain since 1974 under the relevant clauses of the PTA alone! (5) The target of the PTA is undoubtedly the Irish community in Britain, although its operations have also deeply effected nationalists in "Northern Ireland"; Sarah Spencer, General Secretary of the NCCL, has observed tellingly: "Such emergency legislation has also had a profound effect upon the Irish community in Britain, many of whom fear that if they say anything political or get involved in any sort of Irish activities they will become suspect under the PTA or liable to exclusion. It serves tp repress political debate and knowledge about Ireland in Britain which can only hinder the search for a political solution. I'm sure that this is one reason why people in Britain have so little understanding about what on earth is going on in Ireland." (6) Criticism of both the operation of the EPA and PTA, and opposition to their continuation is widespread. Many political parties, including the Britian Labour Party (when in opposition*) and the Social Democratic and Labour Party (SDLP), as well as civil liberation groups like the NCCL have publicity expressed these sentiments. However, genuine justice and democracy is impossible whilst the governing legislation in "Northern Ireland" remains a cornerstone in Britain's denial of national self- determination to the Irish people. * The EPA was enacted by a British Conservative government, the PTA by a British Labour government. CHAPTER THREE THE ROLE OF ARREST AND INTERROGATION The failure of the Civil Rights campaign to elicit fundamental reform from the unionist government in the face of a violent sectarian offensive, combined with the re-deployment of British combat troops against the nationalist community, led to the re- emergence of the IRA. Re-analysis and bitter experience of the true nature of the "Northern Ireland" state now catalysed the inevitable transition of the campaign for Civil Rights into a popular struggle for national self-determination. Confronted with this challenge to its very existence., the unionists reintroduced the internment of nationalists in August 1971. On the morning of August 9th 1971, British soldiers and RUC personnel saturated nationalist areas throughout "Northern Ireland" and arbitrarily arrested 342 males. They were interned without trial or charge at Long Kesh concentration camp and were joined at various stages over the following four years by approximately 2,000 other nationalist men and women, the latter being detained in Armagh prison. Thousands more were arrested and then released after subjection to indepth interrogation. However, the seriousness of the cumulative violations of human rights against nationalists in this early period was soon highlighted by reports of torture against 12 particular internees by state agencies. Subsequent revelations uncovered the use of the "Five Techniques" of interrogation - these methods constitued the necessary ingredients of sensory deprivation. Internment and its attendant torture generated such outcry in Ireland and abroad that the Dublin government brought a case against the British government to the European Court of Human Rights in 1971. The same year an Amnesty International inquiry corroborated the claims of systematic ill-treatment of internees. Unionism's utter failure to stabilise the accelerating conflict impelled the Britain government in March 1972 to resume direct administration control and to prorogue the unionist parliament at Stormont. The British immediately initiated a parallel system to the internment method for incarcerating nationalists. It took the form of an ostensible judicial process but failed to lead to increased detentions due to continuing common law provision interfering with the admissibility of statements of admission obtained after oppressive interrogations. The detail of the EPA's development has been examined in an earlier chapter. It has been subject to minor alteration in E.P.A. 1987 in respect to the repeal of Section 11 which allowed for "72 hours" detention on suspicion of being a "terrorist". However, Section 11 remains relevant as interpretations based upon it continue to be applied today. Additionally, varying arrest powers persist in Sections 13, 14, and 18. Moreover, the PTA provides for a 7-day detention order contained in Section 12 (1) (6). Even though clear stipulations controlled the application of the primary arrest powers, Sections 11 and 14 of the EPA and Section 12 of the PTA, Walsh points out: "Together, these three sections gave the security forces the power to arrest who they liked and when they liked with virtual impunity, The crucial protections of the individual under the common law were neatly swept away...RUC arrests were, therefore, largely removed from the criminal justice system." (1) All conventions enshrined in the common law to protect democratic rights in the course of arrest and interrogations are reversed under such "emergency" legislation. Indeed, these reversals are accentuated by judicial rulings which neutralise of "reasonable" as a prefix to suspicion in Sections 13 and 14 of the EPA 1987 is withdrawn by an PARTE LYNCH which ruled that general suspicion or an individual being involved in some form of "terrorist" activity was sufficient grounds upon which to arrest him/her under Section 12 of the PTA, as a means to merely start RUC, investigations. Another extreme ruling enhancing the scope for arbitrary arrest resides in McKEE v the CHIEF CONSTABLE for Northern Ireland, which held that the word of a senior RUC officer was sufficent to create suspicion and impede legal redress by the detainee. "Through its interpretations of these provision, the judiciary has given the RUC even greater scope. The net effect of these judicial interpretations is to make it extremely difficult to challenge the legality at the use of these powers in any particular case. That is turn enables the RUC to use them as instruments or arbitrary repression and control." (2) The use of such arbitrary repression and control has resuited in the arrest of one in four nationalist men between 16 and 44 years of age, since 1969. Once arrested under common law, the detainee in police custody is protected by Judges Rules which require a minimum level of proper treatment to ensure the subject is not tricked or coerced into making inculpatory statements. However, the very rationale of Diplock nullifies these rules. The Diplock Report in 1972 stated quite openly that statements should be admitted even when obtained. "...as a result of building up a physcological atmosphere in which the initial desire of the person being questioned to remain silent is replace by an urge to confide in the questioner, or statements preceded by promises of favours or indications of the consequences which might follow if the person persisted in refusing to answer." (3) Breaches of Judges Rules in normal circumstances renders a resulting confession void. Walsh has observed that the implementation of Diplock's recommendation has had the consequence of the admissibility of confessions under emergency legislation being governed by a bewildering complexity of statutory, common law, and administrative rules and regulations. (4) In essence, Section 8 of the EPA 1987 provides that any confession is admissable before the courts unless it is irrelevant or induced by torture. Yet, subsequent judicial rulings such as R v HAILORAN have had the cumulative effect of allowing the RUC to subject a prisoner to lengthy, repetitive and debilitating interrogations, threats, bribes, trickery, verbal abuse, and even a degree of physical ill-treatment in order to obtain confessions without these being ruled inadmissable. The ramifications of this circumstance are alarmingly far reaching. Past monitoring of Diplock non jury courts revealed that approximately 90% of defendents made confessions in interrogation, while in 75% to 80% of cases the prosecution evidence was based mainly on confessions - and judges rarely contested their satisfactoriness. Moreover, about 10,000 persons have been convicted mainly on confession evidence in such courts since 1973. Amazingly, where defendants have challenged the supplied confessions by highlighting that they were induced by maltreatment, judges have accepted that abuse had occurred but have refused to reject the actual confessions. Examples of this judicial complicity occur in R v TOHILL, R v McKEARNEY, and R v CULBERT. The announcement of the removal of a detainee's right to silence under RUC interrogation in October 1988 has now created an utterly incredulous judicial scenario within "Northern Ireland". On the one hand, conditions exist to render admissible any statement induced through oppressive interrogation, whether authentic or not, in a non-jury court and, on the other, a judge may now draw legal inference from a detainee's exercise of the right to silence in interrogation. This represents an unprecedented judicial situation which effectively emasculates any prospect for a nationalist to secure a fair trial. It is widely considered amongst legal academics, such as Walsh, Boyle, Hadden, and Hillyard, that adequate provision exists in common law to empower security agencies to perform arrests and interrogations without recourse to emergency legislation. This fact begs the question as to why it is therefore used. Three broad explanations exist. Firstly, arrest and interrogation powers are used primarily to gather intelligence. This fact stems from the requirements of Kitsonian counter-insurgency strategy. It is evidence by the following illustrative figures between January and October of 1980. Of 4,209 persons arrested for interrogation under emergency legislation, only 11% were charged. By contrast, under common law in Britain, in normal circumstances 90% of the same number of detainees would have been charged. (5) Secondly, the MODUS OPERANDI of arrest, which invariably occurs in the early hours of the morning, and the removal of the subject in a disorientated state to the oppressive environment of the interrogation centre, where s/he is detained for up to seven days, has the objective of intimidating the detainee. "Individuals and groups who have opposed the British presence there [ in "Northern Ireland" ] by violent and non- violent means have found it extremely difficult to secure protection and redress in the courts against police excesses. A remarkable feature about their lack of success is that the abuses have been high in profile, substantial in volume and severity, and sustained in frequency over the years." (6) During the hunger-strike of 1981 for example, in one night 60 key campaign activists were arrested under the PTA and detained for the entire 7-day. More recently, arrest powers have been employed extensively by security agencies to disrupt Sinn Fein election campaigns. A third obvious explanation for the reliance upon emergency legislation to arrest and interrogate is their contribution toward obtaining convictions - a fact amplified by the excessive practices sanctioned for use by the security agencies. The publication of the Gardiner Report in 1975 recommended the ending of internment and formalised the burgeoning strategy to criminalise the struggle for national self-determination. From March 1976, all defendants were processed through the Diplock non-jury court system, denied special category status and were detained in the new cellular H- Blocks prison. In conjunction with the new dominant role in security delegated to the RUC, special interrogation centres were constructed in Belfast and Armagh. The decision of the British government to Ulsterise and criminalise the struggle imposed an acute responsibility upon the RUC to obtain the convictions of republican activists. A conveyor belt system emerged to process those detained by the security agencies, in place of the internment method with its connotations of prisoners of war status. Persons were to be arrested under emergency legislation, interrogated in the new centres, charged with a scheduled ( i.e. "terrorist" ) offence, brought to trial before a non-jury Diplock court, and ultimately jailed in the cells of the newly-built H-Blocks. However, the prerequisite to the success of this system was the extraction by the RUC of confessions from the detainees. Resultant pressure was brought to bear upon the RUC to accomplish this. The affliction of abuse upon detainees did not abate with the new emphasis upon securing confessions - the reverse occurred. With the opening of the interrogation centres and the pressure to convict more republicans, abuse intensified. "Irrefutable proof of inhuman and degrading treatment was proved by the Association of Forensic Medical Officers in representations to the Police Authority as early as April, 1977." (7) Throughout 1977, investigations were opened and dossiers compiled on the extent of brutality meted out to nationalists by civil libertarian activists such as Fr. Raymond Murray and Amnesty International. Amnesty published a report in 1978 which declared, "that maltreatment of suspected terrorists by the RUC had taken place with sufficient frequency to warrant the establishment of a public inquiry to investigate it." (8) Such was the volume and evidence of allegations of maltreatment that in 1979 two RUC doctors, both Protestants, felt compelled to resign their positions as their professional code of ethics no longer allowed them to continue working for the RUC. The British government responded with a privacy inquiry in 1978 headed by Judge Harry Bennett. Its remit was to examine RUC interrogation practices and the procedure for dealing with complaints arising and to make recommendations. The recommendations of the Bennett Report were introduce in 1979, yet several key proposals have not been enforced. For instance, available research proves that the recommended number of RUC personnel to perform interrogations has been exceeded. A high ratio of complaints exist of detainees being denied access to solicitors. Although instances of physical abuse have decreased in the interests of tactical expediencey, the use of verbal abuse in the form of insults, obscenities, etc., persists during interrogations. A much more sinister characteristic of current interrogation practices is the escalating catalogue of attempts by the RUC to entrap nationalists being held in custody into becoming informers. This practice is operated in a deeply disturbing and ruthless manner, targeting the most vulnerable sections of the nationalist community, namely the unemployed and individuals with domestic and medical problems. Between November 1985 and May 1987 almost 50 nationalists came to Sinn Fein and revealed that the RUC had attempted to entrap them as informers. Within this context of refined interrogation malpractices, the removal of the right to silence by the British government must be seen as central to the intensification of an atmosphere which instills fear and stress in the detainee. Moreover, the decision by the British to derogate from the European Convention on Human Rights in December 1988 in order to continue to use the 7-day detention order provided by Section 12 (1) (6) of the PTA may be regarded as official sanction of the abuses of human rights occurring under arrest and interrogation powers. The above decision to derogate followed the announcement in November by the European court that Britain was guilty of human rights abuses against nationalists in "Northern Ireland" through its continued use of Section 12. This is not the first occasion Britain has been indicted internationally both formally and informally for its abrogation of civil liberties and democratic rights since 1969. The result of the case brought against the British by the Dublin government in 1971 for torturing internees was upheld. Successive Amnesty International reports in 1971, 1978 and 1988 have exposed serious abuses of human rights by the legal, judicial and security system. The dissolution of human rights in respect of arrest and interrogation is systematic and endemic. Redress against the security agencies for abuses under these draconian arrest and interrogation powers is impossible. No mechanism exists to curtail or curb such malpractices. Fellow members of the security agencies will not incriminate one another in the event of an attempted prosecution and in any case the panorama of judicial rulings is so expansive that these agencies have effectively been elevated above accountability to the law. (9) Moreover, the Director of Public Prosecutions, an ostensibly independent prosecution authority established in 1972 and the Attorney General, a member of the British government, have singularly failed to prosecute any security personnel for excessive behaviour or maltreatment. That this is the case is not surprising. The frightening array of powers legitimising the gross infringement of human rights examined in the foregoing chapter has a clear political imperative. They do not simply stem from the individual sectarianism or vindictiveness of the RUC and judiciary, rather they occur at the tactical behest of the British government. The British occupation relies upon such measures and for their execution by a legal, judicial and security system synthesised by the common political aim of subjugating the nationalist community. CHAPTER FOUR NEUTRALISING RESISTANCE: THE COURTS AND DETENTION Ultimately the success of any counterinsurgency strategy will be measured by its success in removing the source of resistance. Over the last 20 years the British government has used various tactics both singularly and collectively to realise this objective. This chapter explores the range of methods employed by the British to detain Irish nationalists at length since 1971 through either disregard for, or grotesque manipulation of, the judicial process. The next chapter focuses on a separate measure developed by the British - the shoot-to-kill policy - which, although differing methodically from detention, has the same explicit political objective of physically neutralising support for national self determination. The context in which the internment of nationalists was reintroduced has been examined in preceding chapters. It was acknowledged as a political failure within a year of its implementation by the British government, but this acceptance catalysed a cycle of review to identify the optimum vehicle for detaining nationalists. This process was highly sensitive to both political, military and international considerations and led to the creation of a judicial type scheme of detention which reflected a major strategy rethink by the British in the 1970s. O'DOWD ET AL have commented: "By 1972, the "N. I. problem" had become "dangerously" internationalised and the British policy of propping up the Stormont regime was thoroughly discredited. At this moment, and without the obstacle of a NI government, the British accelerated the drive for reform and the reconstitution of the rule of law, while at the same time drawing upon the latest repertoire of counterinsurgency thinking... in so doing, it became increasingly possible to divert international concern by representing the conflict as a discreet problem of criminality." (1) Internment was not automatically discarded with the imposition of direct British rule although the arguments for its total abandonment were being marshalled. Instead a system of judicial hearings was introduced to side-track the focus of continuing attention away from internment. This method proved to be inadequate due to the rejection of confessions as inadmissible on the basis of common law. Such difficulties were dissipated in 1973 with the enactment of the EPA as a result of the Diplock Report. The Diplock Commission had been asked by the British government to report on. "What arrangements for the administration of justice in Northern Ireland could be made in order to deal more effectively with terrorist organisations by bringing to book, otherwise than by internment by the Executive, individuals involved in terrorist activities, particularly those who plan and direct, but do no necessarily take part in, terrorist acts." (2) Consequently, a series of alterations to the law ere prescribed, central to which was the establishment of non jury courts, later known as Diplock courts, to try "terrorist" or scheduled offences. Once processed through the supposedly normal Diplock system the accused was to be classified as a criminal and imprisoned in the H-Block cells. The recent legislative changes (PTA 1989) introduced by the British government have augmented the terms of imprisonment for detainees by reducing remission of sentence from one-half to one-third. Diplock courts have continued to operate since 1973 and their success in obtaining convictions has hinged upon a number of preconditions: the ability of the security agencies to arrest persons at will; the extraction of statements of admission, on which most Diplock "confessions" are based, after lengthy and oppressive interrogation: third, relaxation of the laws concerning the admissibility of statements of admission in a court. The frightening significance of this factor has been amplified earlier in Chapter 3 when it was shown that the burden of proof is removed from the prosecution to the defendant for disproving the statement of admission - in contravention of the common law. In addition, the conduct or trial proceedings compound the likelihood of conviction. Several key characteristics differentiate between a Diplock and a common law court, which explodes the common law dictum, "innocent until proven guilty". Walsh has revealed (3) that it is standard practice for the RUC and DPP to prefer the most serious charges possible in a politically related incident. Ultimately the accused will usually be convicted on a lesser charge but this practice allows for the maximum number of serious charges to be entered before the actual trial commences, thus strengthening the prosecutions's hand in later plea bargaining. Moreover, in bail application the judge places greater value on the RUC's opinion than upon the accused's evidence. Consequently, a by-product of this tendency is to create an effective form of internment through imposition of lengthy periods of remand in custody before the actual trial. Further grave reversals of common law practices arise in Diplock committal proceedings. Under the Criminal Procedure Act 1968, which forms part of the Magistrates Court Order 1981, both preliminary inquiry and preliminary investigation at the committal stage has been withdrawn in favour of the inquiry alone. This change restricts the defence's opportunity to challenge the prosecution's case before the main trial and it can increase the risk of inadmissible evidence, prejudicial to the accused's interests, being provided to the judge. Analysing this characteristic of the Diplock system, BOYLE ET AL, say, "It is further indication of the desire on the part of the authorities to streamline the judicial process by eliminating any effective opportunity for the defence to put into practice what is, in theory, an essential part of the adversarial system of criminal justice, the right to challenge the prosecution case at the committal stage." (4) The above obvious derogations of civil liberties within the application of the Diplock system construct absolute injustices under the judicial apparatus. The most blatant violation stems from the inherent inability of Diplock courts to administer justice because the trial judge is designated as the sole arbiter of both law and fact, whereas under common law a jury of lay persons would arbitrate upon the assembled facts. It is widely acknowledged belief that this routine leads to the case hardening of judges, thus diminishing their capacity to arbitrate upon fact. This structural flaw combined with the political purpose of the Diplock courts has almost certainly caused miscarriages of justice. It is difficult to escape such a conclusion when the operation of the courts apparatus is examined in conjunction with the arrest and interrogation practices administered by the security agencies, as provided for under emergency legislation and supplementary judicial rulings. Certainly there is abundant evidence of the bias displayed in favour of the security agencies, by contrast with the treatment meted out to nationalists by the judiciary. Illustrations of this will follow in the next chapter. It is now clear that the DPP is not willing to prefer charges against British army or RUC personnel unless the evidence is at least overwhelming and such charges will only be preferred after authority has been sought and sanctioned from the Attorney General. At another level, injustice pervades the Diplock system through scheduling (prescribing as "terrorist") even criminal offences, as opposed to those of a political nature. The result is that such law-breakers are also processed through the conveyor-belt system for offences it was not originally designed to address. However, even with inherent and outward injustice characterising the Diplock courts apparatus, it s warped potential was not fully realised until 1982 when the British government introduced its paid-perjurer strategy. To understand why the British decided to further develop the judicial apparatus, the intervening period must first be evaluated. The cogency of the political thinking underlying the British strategy review of the early 1970s did not fully blossom until the publication of Lord Gardiner's report in 1975. This report enunciated the totality of the criminalisation strategy discussed earlier, and its logic then carried through to the evolution of the twin "normalisation and Ulsterisation" strategies. Gardiner counselled that internment could no longer be maintained as a long-term policy and that all detainees should in future be treated as mere criminals with the onset of the Diplock courts. The report further recommended that special category status (SCS), equivalent to POW status, should be phased out. Consequently, internment ended in 1975 and, as of March 1976, SCS was denied to those convicted by Diplock. This engendered the anomalous situation which currently persists of some prisoners being recognised as SCS detainees (i.e. POWs) and others being considered criminals simply because they were convicted after 1976. Whilst this situation was self-contraditory and arguably untenable, it was nonetheless a crucial step towards criminalising the struggle for national self-determination. Britain could not hope to convince the world that the conflict in "Northern Ireland" was a continued eruption of criminality if all convicted detainees possessed POW status. The 1975-76 period witnessed a major strategic offensive by the British government against the national community which was waged on diverse fronts. However, from the melting pot of the intensified repression and conflict, a refined Republican Movement was to emerge with a clearer political definition of the direction the struggle was assuming. A realisation devolve upon the detained republican activists in 1975 that the prisons would become the vital terrain upon which the battle against criminalisation of the struggle Would be waged. Republican prisoners demanded recognition as POWs and refused to wear prison garb, hence the blanket protest began. The prison conflict intensified and escalated until the republican prisoners were force by the prison administration into a no-wash protest and to live among their own excreta. International pressure from human rights, religious, and political activists failed to diminish the British government's intransigence and the H-Block struggle culminated in two hunger strikes in 1980 and 1981, the latter of which claimed the lives of ten republican activists. The consequence of the unprecedented international attention upon the prison struggle was to thoroughly discredit Britain's strategy to criminalise the nationalist community's popular demand for national self-determination. Moreover, the hunger-strikes regenerated the political struggle against British occupation as events propelled an influx of newly politicised nationalist youth into the Republican Movement. Internal development within the Movement accelerated and the struggle for national self determination expressed new tactical dimensions, not least of which was the launch of Sinn Fein, for the first time in 20 years, as a vibrant electoral organisation. The combined effect of an upsurge in IRA military operations and Sinn Fein's impressive electoral interventions, fuelled by support from a rejuvenated nationalist community, set the backdrop against which the British government's decision to introduce the paid perjurer strategy must be analysed. Prior to 1981, paid-perjurers or "supergrasses" were used on only four occasions to convict detainees in "Northern Ireland". However, between November 1981 and November 1983, at least seven loyalist and 18 nationalist perjurers emerged to give evidence against 600 people in return for financial gain and, or, immunity from personal conviction. Fifteen eventually retracted their testimonies but ten others proceeded to trial. Amazingly, the British government has consistently denied that paid-perjurers have ever amounted to a prosecution strategy, yet the fact that so many appeared over a comparatively short period belies that contention. A number of specific conditions existing against the broad political panorama outlined above corroborate the proposition of a government sponsored strategy. The impetus for the appearance of paid-perjurers stemmed from the appointment as overall co-ordinator of security in 1979 of Maurice Oldfield and the need to compensate for the increased difficulty in extracting confessions due to the application of the Bennett recommendations post 1979. Moreover: "It seems inconceivable that the financial and man-power resources which this has required were not authorised at the executive level in advance rather than, as the authorities maintain, agreed on a case to case basis as each "convicted terrorist" came forward." (5) The use of perjurers is not provided for under common law. However, rules relating to the credibility of accomplice evidence and the governance of corroboration do exist. These have been the judicial basis for the execution of the paid-informer strategy. Within common law, accomplice evidence may be challenged at the committal proceedings during the preliminary inquiry. However, use of the perjurer strategy under Diplock has removed even this safeguard due to the implementation of the Voluntary Bill of Indictment. This resulted in automatic imprisonment of the accused until the main trial. Consequently the paid perjurer strategy came to be also known as detention by remand, because whether a conviction was upheld or not, under perjurer evidence the procedure guaranteed the lengthy detention in remand of the accused. For example, one nationalist was detained on remand on the testimonies of five consecutive perjurers before being finally released. While the accused are detained on remand, the perjurers were schooled intensively by the RUC in the testimony they required to be presented against the detainees. The perjurer Kevin McGrady was reportedly schooled on 47 separate occasions. The leading case on the corroboration of accomplice evidence is R v BASKERVILLE which established that evidence in corroboration must be implicatory evidence. A further case R v McCORMICK, developed upon R v BASKERVILLE by establishing that corraborative evidence may be inadequate for conviction if the judge considers the credibility of the supplied accomplice evidence to be such that a higher that usual quality of corroboration is required. Despite these judicial criteria, the paid-perjurer strategy preceeded with mass convictions solely on the basis of uncorraborated evidence. Additionally, the stipulation by Judge Murray in the case involving Anthony O'Doherty that evidence presented in such trials furnish "clear and compelling corraboration" proved to be impotent between 1981 and 1984 when nationalists were convicted on the testimony openly described by Lord Chief Justice Lowry as "contradictory, bizarre, and in some aspects incredible", as in the case of R v GIBNEY. Further reported aspects of the trial proceedings in the paid-perjurer strategy were the division of the court room between two distinct environments, for the accused and friends/observers, and alternately for the perjurer and his/her minders. It was found that concurrent to the absence of corroboration and with forensic evidence being rarely available, the preferred charges were flimsy. Significantly, perjurer trials were invariably mass trials (Christopher Black implicated 38 nationalists). Inevitably this caused the accused to be mutually tainted by the collective nature of the individual charges preferred against them all. Finally ample evidence permeates the succession of trials to prove that the presiding judges greatly endeavoured to accept the supplied evidence. (6) The net effect of this judicial strategy has been succinctly summed up by Gifford: "... the use of supergrass can lead, and I believe has led, to the telling of lies and to the conviction of the innocent." (7) The last of the perjurers retracted her testimony in 1986. Towards the end of the strategy, perjurers were employed with much lesser degrees of success than at the outset. This is explained later. However, as with internment, it could be re- introduced in a more refined form at any time deemed politically expedient by the British government. Significantly, Lord Chief Justice Lowry's written judgement in the McGrady case elaborated what could provide a legal precedent for a future paid perjurer strategy. Additionally, Amnesty International has expressed concern that such trials may recommence under the same terms at any time. (8) A further cause for alarm should be the sustained attempts by the RUC to induce nationalists being held in custody into becoming paid informers and perjurers against specified individuals. The emergence and subsequent collapse of the paid- perjurer strategy is an instructive lesson in the contemporary operation of the legal, judicial and security system, the levels of collusion between respective agencies; and their diverging approaches to effective counterinsurgency. The following lengthy quotation provides such a valuable political analysis: "Its initial success was underwritten by an uncritical judiciary which subsequently realised its mistake and about turned, destroying the phenomenon it had helped create. This was achieved against the wishes of the executive authorities and, apparently, largely in response to a broadly based anti- supergrass campaign. Contrary to the official view, therefore, Northern Ireland's judges were acting together in a deeply political manner all along, but not in the crude sense alleged by the conspiracy theory. The supergrass policy was a high cost counterinsurgency strategy in manpower, financial and propaganda terms and therefore required a high conviction rate and an appreciable reduction in the level of violence to justify its continued existence. The indispensable co-operation of the courts was faithfully rendered in the Bennett, Black and McGrady trials in 1983. But, following the McGrady case in November 1983, judges trying supergrass cases clearly became much more critical of this type of evidence... It is impossible to identify precisely the factors which have produced this result. It could be argued that Northern Ireland's judges, drawn largely from Unionist backgrounds, recognised the dangers inherent in the disenchantment of large sections of the loyalist community with the courts and government policy which the supergrass system inspired. The well organised campaign by the various relatives' groups and others almost certainly had an impact ... Probably Lord Gifford's unofficial inquiry from October to December 1983 was of considerable influence... "All these factors seem to have prompted the judiciary to reassess its original choice between uncritical loyality to counterinsurgency policy as conceived by the executive and loyalty to the ideology of rule of law. Opting for the latter was ultimately deemed to be necessary in order to limit the damage to the legal system and to reassert a much more compromised judicial "independence". It is likely that this volte face on the part of the courts, rather than cajoling the security forces to smooth down its rougher edges, has wrecked the supergrass system." (9) The motivation of a legal and judicial system which oversees such horrifying contortions of normal justice in order to detain opponents of British rule is the British government's commitment to denying Ireland the right to national self- determination. However, the facilitators and admimistrators of this process are the judiciary, the DPP and the Attorney General, without whom the pretence of "normal" justice would evaporate. Hillyard states: "The rhetoric of the administration of justice may emphasize the notion of equality before the law, but the reality of law which is most observable in any Diplock trial are the sectarian, class, and income divisions between those who administer the law and those who are directly affected by it." (10) Although Catholics have been appointed to the Bench since direct rule, the majority of judges in "Northern Ireland" remain Protestant and of unionist party, British military and business backgrounds. The Worker's Research Unit has concluded that the inherent sectarian bias of the judiciary is most clearly manisfest in their sentencing of the accused, i.e. nationalists are treated immeasurably more harshly than others. (11) As previous chapters have demonstrated, far from taking steps to mitigate abuses the judiciary has in fact sanctioned them. Moreover, the DPP and Attorney General have also totally failed to exert control over such oppressive practices and they have readily collaborated with the introduction of the Diplock Courts and the pursuance of the paid-perjurer strategy. This chapter has traced the operation of the courts and detention methods in "Northern Ireland" since 1971. They and their administrators have been shown to be integral components of the entire British war effort. Although internment and paid- perjurers have been temporarily exhausted and Diplock remains the central tactic for removing individuals from political resistance. It is not the optimum device. The British government particularly as 1989 heralds the 20th year of the redeployment of combat troops, requires a new method fro widespread indefinite detention of nationalists. What design this may take and when the British determine that conditions demand its introduction is difficult to anticipate but it will inevitably draw upon the lessons of the previous 20 years - a scenario which can only exacerbate existing repression against the nationalist community. CHAPTER FIVE NEUTRALISING RESISTANCE: SHOOTING-TO-KILL The shoot-to-kill policy has been executed by the security agencies in "Northern Ireland" since 1969. The deaths of more than 300 people have thus far resulted due to the use of this deadly force. The great majority of this total have been nationalists - members of the unionist community have also been killed but their deaths appear to have occurred inadvertently due to the particular scenario prevailing at the time. The practice of the shoot-to-kill policy has been characterised by two broad scenarios. The first is the habitual and excessive use of force which has led to the death of joyriders at roadblocks, participants at the scenes of robberies and in other general circumstances. In such instances the deaths of unionist people have occurred. The second scenario has occurred in premeditated situations under general orders, such as on Bloody Sunday in 1972, or with the deployment of specially assigned squads to execute republican activists, such as at the Loughgall ambush in 1987. The shoot-to-kill policy may be extension be applied to the use of plastic bullets. This ostensible riot control weapon and its predecessor, the rubber bullet, have caused the deaths of 16 people since 1969, one of whom was a Protestant unionist. Shooting to kill by the security agencies has not been an aberration in unionist and British government policy. Its use is the logical outcome of their determination to thwart the Irish people's right to national self determination. It was argued in the last chapter that the success of the state's counterinsurgency strategy is measured by its ability to remove resistance. Shooting to kill therefore, has been a consistent partner of attempts to imprison and detain nationalists. Where one method slackens the other intervenes. The use of shoot to kill is much more limited in its capacity to physically remove resistance on a wide scale. Therefore, within the framework of British counterinsurgency, its primary objective should be understood as the striking of terror and instilling of war weariness into the nationalist community. A refinement of the shoot to kill policy and an escalation in covert operations occurred with the introduction of "Ulsterisation", as a regular British troops were designated a lower operational profile. Initially, responsibility was devolved exclusively to the British army for covert operations. However, by the 1980's specially-formed RUC undercover units, trained by the British Special Air Services Regiment (SAS), were also deployed for such work. Three important factors provided the background to this development. Firstly, Roy Mason was appointed in 1976 by a Labour government as British Secretary of State to "Northern Ireland". Secondly, in combination to Mason's aggressive political role, Major General Timothy Greasey was appointed Army Commanding Officer. Greasey had had extensive experience with the use of SAS in Oman. "It was, however the success of Provisional Sinn Fein in the October 1982 Assembly elections that led to the full unleashing of shoot to kill operations against the nationalist community...Between 1982 and 1985, 23 individuals were shot by the security forces in covert operations." (1) Of the 23 mentioned in the above period, all but one were republican activists. The prosecution of the shoot-to-kill policy took on a sinister new dimension in March 1988 when three unarmed republican activists were killed by the SAS in Gibraltar in circumstance amounting to summary executions. Since 1969 only two members of the security agencies have been convicted of either manslaughter or murder charges - both were members of the British army. They were imprisoned in 1981 and 1984 respectively and both are not at liberty. A total of 17 prosecutions has been brought against members of the British army and RUC for killings committed whilst on duty and resulting form the use of firearms. The attendant acquittal rate was 90.5% overall. By contrast, the average acquittal rate to studies into the Diplock courts in the early 1980s, was approximately 34.0%. The total absence of accountability for deaths due to security operations demonstrates that the security agencies have been granted the power to decide the guilt or innocence of suspected republican activists without recourse to the courts. Through their ability to use firearms with impunity, Jennings contends they have become the final courts of justice. (2) The security agencies could not and cannot operate this policy with such manifest immunity without the sanction of the British government and collusion from the judiciary and its legal adjuncts. Two particular events were important landmarks in conveying official acceptance of and constructing the legal precedent for legitimising shoot to kill. These were the failure to prosecute any British soldiers after the massacre of 14 nationalists at an anti-internment rally in Derry in 1972, and the ATTORNEY GENERAL'S REFERENCE CASE in 1975. The ATTORNEY GENERAL'S REFERENCE CASE concerned the killing of a nationalist, Pat McIlhone in 1975 by British soldiers. At a later trial, the soldier responsible was subsequently acquitted. This decision sparked much disquiet and prompted a process of legal review and rulings which culminated in the House of Lords casting ultimate judgement on the circumstances so legitimising the use of force by the soldiers. The result was to leave the law in this sphere in a deeply disturbing state of confusion. Consequently, the law does not provide guidance on the circumstances granting permission to the security agencies to discharge their weapons. British army soldiers in "Northern Ireland" are issued with instructions which are contained in the "Yellow Card". However, "It has been pointed out that these instructions do not define the legal rights and duties of soldiers, and some judges have regarded breaches of the instructions as "irrelevant"." (3) These "Yellow Card" rules neither possess the force of law or establish legal restrictions, nor do they provide an effective code of guidelines on the discharge of weapons. Ultimately, the relevant law on the use of force by the security agencies resides in British common law as elaborated in the Criminal Law Act (NI) 1967, Section 3. However, the International Lawyers Inquiry into the use of firearms by the security agencies found that this legislation was inadequate to ensure lethal force is only employed when absolutely necessary. The inquiry concluded that: "225 The law governing the use of deadly force by the police and army in Northern Ireland is inadequate. We find that judges in Northern Ireland and the British House of Lords have interpreted the law in a manner which allows too much scope for members of the security forces. The attitude of some judges amounts virtually to endorsement of martial law.." "231 We consider that the British government in Northern Ireland has violated and continues to violate the international and domestic legal principle that every person's right to life must be protected by law." (3) The most disquieting examples of judicial partisanship towards the security agencies have emerged in two ways in the course of shoot-to-kill related cases. Firstly, when remarks such as the following, expressed by Judge Gibson during FARRELL v MINISTRY OF DEFENCE, openly endorse the shoot to kill policy. "... if your watch wild west films, the posse go ready to shoot their men if need be. If they don't bring them back peaceably they shoot them. And in the ultimate result if there isn't any way open to a man it's reasonable to do it in the circumstances. Shooting may be justified as a method of arrest." (5) Secondly, whilst the conviction of Private Ian Thain for the killing of a nationalist in 1984 has been highlighted as a significant example of judicial impartiality, on the same day as Thains's conviction another British soldier was found innocent of either the murder or manslaughter of an Armagh nationalist. Moreover, Thain was released on licence from his life sentence in 1988 and allowed to rejoin his original regiment. The above example sets into critical relief the degree of collusion which exists amongst the various components of the legal judicial and security system in "Northern Ireland". Then it was the Stalker-Sampson inquiry and its outcome which removed the remaining semblance of impartiality and independence from the judicial and legal system both in the broad scheme of affairs and, specifically, with regard to shoot-to-kill cases. This notorious inquiry which lasted from 1985 to 1988 was commissioned to investigate the killings of six nationalists in County Armagh within one month in 1982 by members of an RUC undercover unit. Two English police officers were recruited to oversee the inquiry because the first, Stalker, was initially suspended from duties at a critical stage of his investigations on allegations later found to be without substance. The conclusions arrived at by the inquiry found that grounds existed for charging a number of RUC personnel, including senior officers, with a range of serious offences stemming from the Armagh killings. Moreover, evidence emerged of incredible attempts to obstruct and impede the investigation from within the highest ranks of the RUC. The report was eventually submitted to the DPP for consideration apparently containing recommendations to prosecute RUC members. The DPP in turn consulted with the Attorney General who announced in January 1988 that eight RUC officers involved in a conspiracy to pervert the course of justice and responsible for obstructing the Stalker inquiry would not be prosecuted in the interests of "national security". The Stalker-Sampson affair represents the most fantastic exposure of the dynamics of complicity operating within the legal, judicial and security system in "Northern Ireland". The Attorney General's decision cannot be construed as anything short of official acceptance in future instances of inspired perjury by state agencies. As for the shoot-to-kill policy, it continued to claim the lives of republican activists and nationalist civilians throughout 1988. Summing up the implications of the use of shoot to kill by the security agencies, Jennings points out: "The shoot-to-kill policy is more militarily discreet and politically expedient than the practices of South American death squads. Rather than openly executing opponents, the security forces engage them in situations where they will be able to act with virtual impunity, always being able to fail back on the elastic concept of reasonable force. But the intent - and result - are similar. If experience is anything to go by, most members of the security forces responsible for killing civilians are unlikely to be charged, those who conspire to pervert the course of justice will probably be protected by the all-embracing concept of national security, those charged are unlikely to be convicted and those unlucky enough to be convicted will probably serve only a fraction of their sentence and may be free to return to serve in the security forces. The actions of the security forces and the attitude of the judiciary only serve to compound the nationalist community's belief that the security forces are a law onto themselves." (6) It was stated at the beginning of this chapter that the aggressive use of plastic bullets by the security agencies should be understood as an extension of the shoot-to-kill policy. Not surprising the same features of governmental sanction and judicial acceptance control the employment of this weapon. An aptly entitled article BULLETS ABOVE THE LAW, notes that: "... the deaths and injuries in Northern Ireland from rubber and plastic bullets are not inevitable. They are, rather, an example of bad policing, and... a reflection of the increasing use of excessive force, in which weapons are used not as a last but as a first resort, and of its acceptance by the security forces and judiciary alike." (7) Plastic bullets were introduced in 1973 to replace the use of rubber bullets as a riot control device. Since then, according to grossly under estimated official statistics, 54,234 plastic bullets have been discharged, in circumstances contravening the very guidelines laid down to control their use. For instance, the governing rules stipulate that they should not be aimed above the lower part of the body. In spite of this, most deaths have resulted from the impact of bullets fired at the victim's head. The history of the use of plastic bullets has been characterised by indiscriminate application. The majority of victims have been proved not to have been involved in riot situations and moreover, several fatalities have been inflicted in areas where no street disturbance was even current! The case of mother-or-three Nora McCabe, killed by a plastic bullet in 1981, bears grim testimony to this fact. At the time of her killing, the RUC claimed to be under sustained attack. However, at Nora McCabes' inquest in 1983, the jury established that no riot was in existence and that no legitimate target was available to use the weapon against within the vicinity. Such was the magnitude of disparity between the RUC's sworn evidence at the inquest, and the jury's corroborated findings, that a public outcry ensued. Nonetheless, the DPP announced that no prosecution would be brought against the RUC personnel involved in the killing, or for perjury. The Attorney General endorsed this decision and ignored a petition form 80 British MPs to convene an inquiry into the killing. Furthermore, the RUC confirmed no disciplinary action would be pursued. In fact, the officer who ordered the fatal shot to be fired was later promoted to assistant chief constable of the RUC. No member of the security agencies has ever been convicted of murder or manslaughter arising from the use of plastic bullets. Indeed, in the one case brought against an RUC officer, Nigel Hegarty, for the killing of John Downes in 1984, the circumstances left no alternative but to prosecute as the incident attained world-wide media attention (8). Hegarty was acquitted in 1985, even though it was established during the trial that the fatal bullet was fired in breach of the relevant operational guidelines. The British government has consistantly refused to acknowledge the danger associated with plastic bullets, it asserts that they are both necessary and well-controlled. It is currently considering the introduction of a new and even more deadly plastic bullet gun. The use of these bullets has been widely condemned internationally and both the European parliament and United Nations have called for their banning. In addition, the NCCL and Irish human rights activists have supported this demand and condemned the proposal to introduce the new weapon. The shoot-to-kill policy has become a key element of Britain's counterinsurgency strategy. Flowing from the overall objective identified earlier of contributing towards the removal of nationalist resistance, shooting to kill enables the British government to execute republican activists and terrorise the nationalist community. Official state death squads, appropriately ambiguous laws, a corrupt judiciary and legal system, and weapons such as plastic bullets are inevitable for as long as Britain's occupation of Ireland is perpetuated. CONCLUSION It would be a physical and intellectual impossibility to enumerate with accuracy the cumulative devastation wrought upon the nationalist community by the operation of Britain's legal, judicial and security system in "Northern Ireland". Some indication of the severity of repression exacted upon nationalists over the last 20 years by the British government has been provided by use of some of the available statistics in the previous chapters. Yet this study has been restrictive. It has not investigated a range of other repressive apparatus employed systematically against nationalists by the British state. Nor has it investigated the documented collaboration between the British army and RUC and loyalist death squads. The human rights abuses arising from the legal, judicial and security system discussed in this study are but the readily evident and detectable outgrowths of British occupation. Sadly, the totality of human rights violations visited upon nationalists are much more far reaching. However, none of this repression is aberrant. The existing panorama of official and unofficial measures comprises a counterinsurgency strategy to prevent the realisation of Irish national self determination. The resulting derogation of human rights is therefore inherent to stabilising Britain's occupation of Ireland. Since the signing of the Hillsborough Agreement in November 1985 between the London and Dublin governments, repression has intensified. Hillsborough marked a new development in counterinsurgency planning because it harmonised and systematised cross-border collaboration. Inconjunction with a package of ostensible economic reforms, the objective of Hillsborough was to isolate the Republican Movement and repress the popular demand for national self-determination. At the time, the propaganda hyperbole surrounding the Agreement suggested that both governments were equal partners and that in return for the introduction of certain measures in the 26 Counties the British government would make reciprocal concessions by alleviating the harsher aspects of law and security. Amongst those suggested were the replacement of one-judge courts by three-judge courts and more sensitive "policing" by the security agencies towards nationalists. Although the objectives was clear, the respective influence and authority of the two governments was far from equitable. Dublin was the subordinate partner and, whilst it fulfilled its' commitments, the British outrightly refused to alter any aspect of policy in "Northern Ireland". On the contrary, once commitments by Dublin to cross-border extradition and related security matters were secured, repression was inevitably increased. Three years later, although a better equipped and more sophisticated system of repression had been constructed, the struggle for national self-determination continues undiminished and the national community remains unbeaten. The scale of IRA operations and unreduced electoral support for Sinn Fein reflect the failure of Hillsborough. However, these have simultaneously propelled the British government into a new phase of repression coinciding with the renewal of the Agreement in November 1988. Hence, the flurry of announcements in Autumn introducing new repressive legislation and concurrent military clampdowns in nationalist districts. The 20th year of resistance by the nationalist community to British rule, if only in the interests of historical authenticity, will refocus the attention of the world upon "Northern Ireland". Britain cannot afford a further 20 years of international embarrassment and declining credibility due to the Irish conflict. The latest waves of oppression must therefore be placed into their political context: they represent the commencement of a phase of unrestrained subjugation by the British government designed to totally extinguish the struggle for national self-determination. This onslaught will unleash the combined potential of all state apparatuses against the nationalist community. It will not, however, neutralise the freedom struggle, nor can it undermine Ireland's right to national self-determination, but it will perpetuate the conflict and inspire further suffering and agony. The operation of the legal, judicial, and security system represents the antithesis of democracy and justice. Its violation of human rights is absolute. Any analysis of it, as this study has argued, must be conducted within the context of Britain's ongoing opposition to Irish national self-determination. It follow, therefore, that genuine concern for the protection of civil liberties and the establishment of the rule of law can only be expressed ultimately in support for the Irish people's right to national self-determination, reunification, independence and sovereignty. FOOTNOTES INTRODUCTION 1. F. KITSON, "LOW INTENSITY OPERATIONS"; P. 69. CHAPTER ONE 1. M. FARRELL, "NORTHERN IRELAND: THE ORANGE STATE"; P. 92 2. FARRELL, ibid; P. 93. 3. cited FARRELL, ibid; P. 94. 4. BOYLE et al, "LAW AND STATE"; P. 7. 5. cited WORKERS RESEARCH UNIT, "BELFAST BULLETIN NO. 10"; P. 21. 6. see M. FARRELL, "NORTHERN IRELAND: THE ORANGE STATE", and "ARMING THE PROTESTANTS". CHAPTER TWO 1. D. WALSH, "THE USE AND ABUSE OF EMERGENCY LEGISLATION"; P. 11. 2. S. GREER and A. WHITE, "A RETURN TO TRIAL BY JURY"; P. 47. (contained in "JUSTICE UNDER FIRE" ed A. JENNINGS) 4. HALL, ibid; P. 171. 5. W. MIDLANDS P. T. A. RESEARCH AND WELFARE ASSOC., "BRIEFING FOR P. T. A. DEBATE"; P. 2. 6. M. COLLINS ed, "IRELAND AFTER BRITAIN"; P. 60. CHAPTER THREE 1. D. WALSH, "ARREST AND INTERROGATION", P. 34. (contained in "JUSTICE UNDER FIRE" ed A. JENNINGS) 2. ibid; P. 33. 3. INTERNATIONAL LAWYERS INQUIRY, "SHOOT TO KILL?"; P. 115. 4. D. WALSH, "THE USE AND ABUSE OF EMERGENCY LEGISLATION"; P. 44 5. D. WALSH, "THE R. U. C.: A LAW ONTO THEMSELVES?"; P. 95. 6. WALSH, ibid; P. 93. 7. NATIONAL LAWYERS GUILD, "NORTHERN IRELAND"; P. 29. 8. cited. N. L. G., ibid; P. 29. 9. D. WALSH, "ARREST AND INTERROGATION"; P. 42-43. (contained in "JUSTICE UNDER FIRE", ed A. JENNINGS) CHAPTER FOUR 1. O'DOWD et al, "REFORMING REPRESSION"; P. 201. (contained in "NORTHERN IRELAND: BEYOND CIVIL RIGHTS AND CIVIL WAR", O'DOWD et al.) 2. INTERNATIONAL LAWYERS INQUIRY, op cit; P. 115. 3. D. WALSH. "THE USE AND ABUSE OF EMERGENCY LEGISLATION"; P. 79 - 80. 4. BOYLE et al, "10 YEARS ON IN NORTHERN IRELAND"; P. 69. 5. S. GREER, "THE SUPERGRASS SYSTEM"; p. 85. (contained in "JUSTICE UNDER FIRE", ed A. JENNINGS) 6. WORKERS RESEARCH UNIT, "BELFAST BULLETIN NO. 11; P. 10. 7. T. GIFFORD, "SUPERGRASSES"; P. 34. 8. AMNESTY INTERNATIONAL, "N. I. KILLINGS BY SECURITY FORCES AND "SUPERGRASS" TRIALS"; P. 61. 9. GREER, op cit; P. 93 94. 10. P. HILLYARD. "POLITICAL AND SOCIAL DIMENSIONS OF EMERGENCY LAW IN N. I.; P. 201. (contained in "JUSTICE UNDER FIRE", ed A. JENNINGS) 11. WORKERS RESEARCH UNIT, "BELFAST BULLETIN NO. 10; P. 21. CHAPTER FIVE. 1. A. JENNINGS, "SHOOT TO KILL: THE FINAL COURTS OF JUSTICE"; P. 173. (contained in "JUSTICE UNDER FIRE", ed A. JENNINGS) 2. JENNINGS, ibid; P. 105. 3. JENNINGS, ibid; P. 111 4. INTERNATIONAL LAWYERS INQUIRY, op cit; P. 125 - 126. 5. JENNINGS, op cit; P. 112. 6. JENNINGS, op cit; P. 124. 7. A. JENNINGS, "BULLETS ABOVE THE LAW"; P. 131. (contained in "JUSTICE UNDER FIRE", ed A. JENNINGS) 8. JENNINGS, ibid; P. 138. BIBLIOGRAPHY AMNESTY INTERNATIONAL. "NORTHERN IRELAND: KILLINGS BY SECURITY FORCES AND SUPERGRASS TRIALS" BOYLE et al. "LAW AND STATE: THE CASE OF NORTHERN IRELAND" "10 YEARS ON IN N. I.: THE LEGAL CONTROL OF POLITICAL VIOLENCE" COLLINS, MARTIN. (ED) "IRELAND AFTER BRITAIN" CURTIZ, LIZ. "NOTES ON EMERGENCY LEGISLATION" FALIGOT, ROGER. "BRITAIN'S MILITARY STRATEGY IN IRELAND. THE KITSON EXPERIMENT." FARRELL, MICHEAL. "NORTHERN IRELAND: THE ORANGE STATE." "ARMING THE PROTESTANTS." GIFFORD, TONY. "SUPERGRASSES: THE USE OF ACCOMPLICE EVIDENCE IN N. I." INTERNATIONAL LAWYERS INQUIRY, "SHOOT TO KILL" JENNINGS, ANTHONY. (ED) "JUSTICE UNDER FIRE: THE ABUSE OF CIVIL LIBERTIES IN N.I. KITSON, FRANK. "LOW INTENSITY OPERATIONS." NATIONAL COUNCIL FOR CIVIL LIBERTIES. BRIEFING PAPERS ON P. T. A. AND E. P. A. NATIONAL LAWYERS GUILD. "NORTHERN IRELAND" O'DOWD et al. "NORTHERN IRELAND: BETWEEN CIVIL RIGHTS AND CIVIL WAR." SINN FEIN. "IRELAND: INTERNATIONAL NEWS BRIEFING." "HILLSBOROUGH A FAILURE: THE BALANCE SHEET." TOMLINSON, et al. "WHOSE LAW AND ORDER?" WALSH, DERMOT. "THE USE AND ABUSE OF EMERGENCY LEGISLATION IN N. I." WORKERS RESEARCH UNIT. "BELFAST BULLETIN." CHRONOLOGY 1920 GOVERNMENT OF IRELAND ACT enacted, signalling the partition of Ireland 1922 SPECIAL POWERS ACT enacted, R. U. C. and B. Specials already in existence. Internment introduced. 1923 LOCAL GOVERNMENT ACT enacted, abolishing the P. R. system of voting. This commenced the process of gerrymandering local councils. 1928 S. P. A. rendered permanent. 1936 National Council for Civil Liberties compares the 6 counties to European fascist dictatorships. 1951 PUBLIC ORDER ACT enacted. 1954 FLAGS AND EMBLEM ACT enacted. 1969 Strengthening of the P. O. A. British army redeployed. 1970-71 Replacement of the B. Specials by U. D. R. and R. U. C. Reserves. 1971 Internment reintroduced. Amnesty International exposes the torture of internees. Dublin government takes case against the British to the European Court of Human Rights. 1972 Bloody Sunday occurred. Abolition of the unionist government and reimposition of direct British rule. DIPLOCK REPORT published. Genesis of the criminalisation strategy. 1973 EMERGENCY PROVISIONS ACT enacted. Diplock courts operating in concurrence with internment. Plastic bullet introduced. 1974 PREVENTION OF TERRORISM ACT enacted. 1975 GARDINER REPORT published and formal implementation of criminalisation of the struggle. ATTORNEY GENERAL REFERENCE CASE is established. 1976 Evolution of ulsterisation and normalisation to complement the criminalisation strategy. Opening of the H-Blocks and commencement of the Blanket Protest. Castlereagh and Gough interrogation centres are opened. Refinement and escalation of the shoot to kill policy. 1978 Amnesty International report into the torture of detainees under interrogation published. 1979 Publication of the Bennett Report. The no wash protest continues in H-Blocks. 1980-81 The two Hunger Strikes took place. Mass solidarity campaigns organised. Dramatic increase in the use of plastic bullets and associated deaths. 1982 Emergence of the paid perjurer strategy. Sinn Fein succeeded in the assembly elections. Upsurge in shoot to kill incidents. The six Armagh killings occur. Revelation emerge of R. U. C. undercover units. 1983-84 Jellicoe review of P. T. A. Baker review of E. P. A. 1985-87 Hillsborough Agreement is signed. The Stalker-Sampson inquiry ensues. Catalogue of reports of R. U. C. attempts to recuit vulnerable nationalists as informers and perjurers. 1988 Culmination of the Stalker-Sampson inquiry with the Attorney General's decision not to prosecute R. U. C. personnel involved. Private Ian Thain released from prison and allowed to rejoin his regiment. Announcement of the intention to render permanent the P. T. A. Internationalising of the shoot to kill policy at Gibraltar. From Autumn an upsurge of search and seal operations in nationalist areas is sustained. Censorship laws against Sinn Fein are introduced. The right of detainee's right to silence is removed. New powers extended to the R. U. C. to perform D. N. A. forensic testing. Britain found guilty of human rights abuses by the E. C. H. R. In December British government announces its' decision to derogate from the E. C. H. R. ruling. 1989 Permanent and expanded version of the P. T. A. enacted. ELECTED AUTORITIES (N. I.) is enacted.