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1 Introduction
1.1 British Irish rights watch is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.
1.2 We welcome this opportunity to make a submission to the United Nations’ Committee against Torture at the time of its consideration of the United Kingdom’s Fourth Periodic Report under Article 19 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. This is the third occasion on which we have made submissions to the Committee.
1.3 British Irish rights watch is particularly concerned that during this review, discussion of the situation in Northern Ireland should not be eclipsed by a focus on the measures taken by the United Kingdom in the so-called international “war on terrorism”. We recognise that significant legislative and policy changes of great concern to the Committee have taken place in the United Kingdom since its last review in 1998, and that these merit careful examination. However, we urge the Committee also to engage in a dialogue with the State on those specific issues relevant to its mandate arising in Northern Ireland, as it has done on previous occasions. Pressure from this Committee and other international human rights mechanisms has played a significant role in improving human rights in Northern Ireland in recent years, and we hope that it will continue to do so. For example, the introduction of safeguards such as the presence of lawyers during police interrogations and video- and audio-recording of such interrogations have seen the virtual elimination of claims of ill-treatment in police custody. This Committee’s past criticism of the absence of these safeguards played a large part in this vital reform.
1.4 Indeed, we wish to highlight the parallels between some of the human rights concerns being voiced today about the manner in which the international “war on terrorism” is being pursued by the United Kingdom, and those that we and others have expressed in preceding years with regard to Northern Ireland. British Irish rights watch is deeply disturbed by ongoing reports of, among other things, mistreatment of detainees, arbitrary detention, and detention without trial, which carry echoes of the way that suspected terrorists in Northern Ireland were treated in the recent past. It bears constant reiteration that abusing human rights is an entirely illegitimate and ineffective response to terrorism and it is troubling that the United Kingdom apparently has not learned from the mistakes that it made in Northern Ireland.[1]
1.5 In addition, we wish to emphasise that impunity for the perpetrators of human rights abuses serves only to perpetuate those abuses. Continuing impunity for those who have killed, mistreated and threatened individuals in Northern Ireland remains a significant obstacle to a sustainable peace based on respect for human rights. Similarly, such impunity sends a message that the techniques used by the perpetrators of abuse in Northern Ireland can be employed elsewhere, without fear of consequence. This is particularly troubling given that former RUC (Royal Ulster Constabulary, the former police service in Northern Ireland) personnel have been employed in Iraq and British soldiers who served in Northern Ireland continue to act as security experts and mercenaries around the world.[2]
2 developments since the last review
2.1 On the surface, the situation in Northern Ireland has changed significantly since the examination of the United Kingdom’s Third Periodic report to this Committee. As a result of the ceasefires first announced by paramilitary groups in 1994, the Good Friday peace agreement of 1998, and the ongoing peace process, some of the issues raised by the Committee during its previous examination of the United Kingdom have been addressed. For example, a Police Ombudsman who employs independent investigators has been appointed and has carried out investigations into thousands of complaints of police abuse. In addition, a review of policing in Northern Ireland was carried out by an Independent Commission in 1998-1999 (Patten Commission), which made broad recommendations for reform, many of which have been implemented. Moreover, the holding centres at Castlereagh, Strand Road, and Gough Barracks, where terrorist suspects were detained and interrogated, and where conditions fell below internationally recognised standards, are reported to have been closed, as recommended by the Committee.[3] However, Northern Ireland’s police Oversight Commissioner has recently stated that “although the three holding centres were originally reported as closed, Gough Barracks did not remain closed, but was used to temporarily house terrorist suspects on three different occasions in 2003.”[4]
2.2 The legal situation in the whole of the United Kingdom has also changed with the coming into force of the Human Rights Act 1998, incorporating the European Convention on Human Rights into domestic law. While this would appear to be an extremely positive development, a ruling by the House of Lords in the McKerr case (discussed below at paras. 3.4 and 3.8) in March 2004 has significantly limited the impact of the Human Rights Act. The Lords held that the Act, which came into force on 2nd October 2000, merely gave effect to European Convention rights in domestic law. Individuals whose cases arise from incidents which occurred before that date could not vindicate their Convention rights before the domestic courts. Furthermore, claims arising from the procedural rights stemming from Article 2, such as the right to an effective investigation, even if they arose after October 2000, could not engage Human Rights Act protection if the death happened before that date.
2.3 Despite the peace process in Northern Ireland, and the significant drop in paramilitary activity, the United Kingdom states in its Fourth Periodic Report that “the security situation still warrants the continued existence of emergency provisions.”[5] In 2001, the UK withdrew its derogations from the International Covenant on Civil and Political Rights and the European Convention on Human Rights in respect of prolonged detention for those arrested under counter-terrorism laws.[6] However, due to the continuation of emergency provisions contained in the Terrorism Act 2000, a de facto state of emergency continues in Northern Ireland, which is unwarranted. Part VII of the Act, which deals with Northern Ireland, has been renewed annually, most recently in February 2004. We do not consider the provisions contained in Part VII necessary.[7] Although there is dissident paramilitary violence taking place in relation to Northern Ireland, ordinary criminal laws in force are perfectly adequate to deal with the perpetrators.
2.4 While paramilitary attacks have decreased significantly and various reforms have been implemented in Northern Ireland as a result of the Good Friday peace agreement, numerous problems affecting human rights continue to exist. Noting the mandate of this Committee to monitor compliance with the Convention Against Torture, British Irish rights watch here lay out our concerns with regard to:
· impunity and the lack of effective investigations;
· conditions in detention;
· the police and prisoner complaints systems;
· strip searching;
· secure units;
· police and prison officer human rights training;
· plastic bullets and other weapons.
3 Impunity and lack of effective investigations
3.1 British Irish rights watch continues to call for a system of effective inquiry into the use, and particularly the abuse, of lethal force in Northern Ireland. In numerous cases the families of individuals killed by state agents, or by paramilitary groups with the collusion of state agents, continue to suffer from pervasive impunity. The failure to provide an effective investigation not only confers impunity on perpetrators of violence, covers up acts of collusion and is, in itself, an act of collusion, but also puts surviving family members through years of frustration and fears for their own safety.
3.2 This was recognised recently by the Inter-American Court of Human Rights, in the case of murdered Guatemalan anthropologist Myrna Mack Chang. In its 2003 decision, the Court stated:
“It has been proven, therefore, … that there was a violation of the right to humane treatment of the next of kin of the victim as a direct consequence of the threats and harassment that they have suffered from the start of the investigation of the extra-legal execution of Myrna Mack Chang. This situation was worsened by the pattern of obstruction of the aforementioned investigations, the murder of a police investigator, the threats and harassment suffered by some of the legal operators, policemen, and witnesses, which forced them into exile. Said circumstances, made more severe by the long time that has passed without elucidation of the facts, has caused constant anguish among the next of kin of the victim, together with feelings of frustration and powerlessness and a deep fear of suffering the same pattern of violence fostered by the State. For this reason, the next of kin of Myrna Mack Chang must be considered victims because the State has damaged their psychological and moral integrity.”[8]
3.3 Having recognised that the rights of the Mack family under Article 5 of the American Convention on Human Rights (right to humane treatment) had been violated due to the ongoing denial of justice in the case and the consequent suffering they had endured, the Court ordered Guatemala to pay appropriate compensation.[9]
3.4 In its 2001 decision in the McKerr case, the European Court of Human Rights found that the United Kingdom had violated Article 2 of the European Convention on Human Rights for its failure to properly investigate the 1982 killing of Gervaise McKerr by police in Northern Ireland. The Court awarded £10,000 to McKerr’s family on the basis that the failure to carry out an effective investigation meant that the family must have “suffered feelings of frustration, distress and anxiety… which is not sufficiently compensated by the finding of a violation of the Convention.” [10] In March 2004, the House of Lords ruled in an appeal on the issue of whether the government could be compelled to hold a new investigation in the case. While the House of Lords denied that such a new investigation was required, Lord Steyn articulated the view that McKerr’s son, Jonathan, must be considered a “victim” of a violation of human rights, as “the failure to carry out an investigation promptly and effectively caused the son mental suffering …”[11] While these rulings do not go as far as the Mack decision by classifying the suffering of family members as “inhumane treatment” they do recognise that such suffering is severe and may itself constitute a violation of human rights.
3.5 In its concluding observations following the 2001 examination of the United Kingdom’s fifth periodic report, the Human Rights Committee stated that it was
“… deeply disturbed that, a considerable time after murders of persons (including human rights defenders) in Northern Ireland have occurred, a significant number of such instances have yet to receive fully independent and comprehensive investigations, and the persons responsible to be prosecuted. … The State party should implement, as a matter of particular urgency given the passage of time, the measures required to ensure a full, transparent and credible accounting of the circumstances surrounding violations of the right to life in Northern Ireland in these and other cases.”[12]
3.6 In August 2001, as part of the Weston Park package of proposals to rescue the Good Friday peace agreement, the UK and Irish governments announced that an independent judge from outside both countries would be appointed to look into four cases arising in Northern Ireland (Patrick Finucane, Rosemary Nelson, Robert Hamill, and Billy Wright) and two cases in Ireland, in which collusion had been alleged. At that time, a commitment was given that if the judge recommended a public inquiry in any of these cases, it would be held.[13] In May 2002, Judge Peter Cory, a retired member of the Canadian Supreme Court was appointed and he began work in earnest in September 2002. In October 2003, Judge Cory delivered all six reports but the UK did not publish those relating to Northern Ireland until April 2004.[14] Moreover, they had substituted many names in the reports with letters of the alphabet and redacted some passages, even including some of the judge’s recommendations in the Finucane report.
3.7 Patrick Finucane was a human rights lawyer who was murdered in 1989. Since then credible allegations have emerged of collusion in his murder by the army, the police, the intelligence services and possibly even the government. In April 2004, the government announced it would hold public inquiries into three of the Northern Ireland cases, but said it could not determine “the way ahead” in the Finucane case until “prosecutions” were over.[15] Following the conviction of Ken Barrett for the Finucane murder in September 2004, renewed calls for a public inquiry in the case were made. On September 23rd, the Secretary of State for Northern Ireland announced that an inquiry would be established, but serious concerns remain over the form that it will take, with the government apparently back-tracking over the degree to which the inquiry will be public and seeking to pass new legislation to govern it rather than using the Tribunals of Inquiry (Evidence) Act 1921, as anticipated. The Finucane family and NGOs closely following the case have stated their suspicion that these measures are yet another attempt by the government to cover-up the truth about collusion in the murder.[16]
3.8 The lack of effective investigations into killings in Northern Ireland remains a significant problem. In its abovementioned decision in the McKerr case, the House of Lords held that there was no requirement under the Human Rights Act to hold an investigation into the death of Gervaise McKerr, as he was shot and killed prior to the entry into force of the Act.[17] In what can only be described as a retrograde judgment, the Lords held that the European Convention on Human Rights had not been incorporated into domestic law. Rather, the Human Rights Act merely gave effect to Convention rights in domestic law. Individuals with cases arising from incidents which occurred before that date could not vindicate their Convention rights before the domestic courts. Furthermore, claims arising from the procedural rights stemming from Article 2, such as the right to an effective investigation, even if they arose after October 2000, could not engage Human Rights Act protection if the death happened before that date. This decision completely negated the effect of the earlier ruling of the European Court of Human Rights, which found that the failure by the UK to properly investigate the killing of McKerr violated Article 2 of the European Convention on Human Rights.[18] Moreover, the House of Lords’ decision stands in stark contrast to two other cases – not connected to Northern Ireland - decided on the same day as the McKerr case. In these other cases the issue of whether the Human Rights Act was applicable to deaths that occurred prior to its entry into force was simply not raised and the Lords applied the Act without taking any point on the issue of retrospectivity.[19]
3.9 British Irish rights watch is greatly concerned that there remains no system for effectively investigating past and ongoing cases of murder, torture and mistreatment in Northern Ireland, particularly where there are allegations of paramilitary involvement and/or involvement of state agents. In numerous cases, the UK has failed to comply with the requirements of Article 2 of the European Convention of Human Rights to effectively investigate murders committed in Northern Ireland and its compliance with articles 13 and 14 of the Convention Against Torture must therefore be brought into question.
3.10 The inquest system in Northern Ireland, which in the absence of criminal prosecutions is the only way for homicide cases to be examined publicly and for surviving family members to learn how their loved ones were killed, is in a state of disarray. The powers of a coroner in Northern Ireland are extremely limited, permitting only an examination of the direct cause of a person’s death, rather than the circumstances surrounding death.[20] For this and other reasons, the European Court of Human Rights has found that the inquest system in Northern Ireland is an ineffective mechanism for the purpose of ensuring compliance with the procedural obligations of Article 2 of the European Convention.[21] As a result of this and other rulings of the European Court, the rules governing inquests in Northern Ireland have been amended so that witnesses who may have been responsible for a particular death can be compelled to attend.[22] This change does not, however, go nearly far enough to meet the UK’s obligations under Article 2.
3.11 In 2002 a comprehensive review of the inquest system throughout England, Wales and Northern Ireland was launched, chaired by Tom Luce. In June 2003 a final report from this review was published, containing many recommendations for reform of the inquest system.[23] Subsequently, the Northern Ireland Court Service initiated a consultation on the implementation of the recommendations contained in the Luce report pertaining to Northern Ireland. In addition, in March 2004, the government published its own position paper on reform of the system in England, Wales and Northern Ireland, incorporating some of the recommendations made by the Luce review.[24] In the meantime, the system in Northern Ireland has become effectively paralysed with a huge backlog of cases and a flood of applications for judicial review of coroners’ decisions.[25] Further legal confusion has been created following the House of Lords’ decision in the McKerr case, with some coroners now arguing that they are not obliged to carry out inquests that are compliant with Article 2 of the European Convention in cases arising before the entry into force of the Human Rights Act.[26]
4 conditions of detention
4.1 British Irish rights watch has taken a long-term interest in the conditions in detention of paramilitary prisoners in Northern Ireland, both in prisons and in the holding centres when they were in operation (see para. 2.1 above). Our sole concern has been for the safety of such prisoners and to ensure that they are treated in conformity with domestic and international law and rules relating to the human rights of prisoners and guaranteeing their right to a fair trial. We have also, of course, been mindful of the safety of prison officers.
4.2 The history of the imprisonment of paramilitary prisoners in Northern Ireland has been fraught. At the beginning of the conflict in the late 1960s and early 1970s, partly because of the decision to introduce internment without trial, paramilitary prisoners were recognised as having political status and were accorded various privileges not allowed to non-political prisoners. A decision in 1975 to remove this political status led to a republican hunger strike which significantly deepened the conflict and resulted in the deaths of ten republican prisoners. To this day, paramilitary prisoners from both sides, republican and loyalist, continue to regard themselves as political prisoners. Within the Maze prison they continued to insist on segregation into factions, acted collectively, communicated with the prison authorities via their O/Cs (officer commanding), and, as a result of successive campaigns of violence and conditioning of prison officers, had driven prison officers off the prison wings. Prison officers had been reduced to controlling prisoners’ movements outside the wings, for instance to attend visits, the prison hospital, or courts. Inside the wings, prisoners had a high degree of autonomy.
4.3 In large part due to pressure from this Committee and other regional and international human rights bodies and mechanisms, conditions for paramilitary prisoners and detained suspects have improved greatly in recent years. We, nonetheless, remain to be convinced that sufficient lessons have been learned from past mistakes to ensure that prisoner safety is guaranteed. We hope that the imminent public inquiry into the murder of Billy Wright inside the Maze prison in 1997 will consider whether adequate steps have been taken to prevent future killings and abuse in Northern Ireland’s prisons. No public inquiry into the death of David Keys in the Maze in 1998 is currently scheduled.
4.4 The Maze prison, near Belfast, held a large number of Northern Ireland’s paramilitary prisoners until its closure in 2000. Following the closure of the prison, a number of paramilitary prisoners were transferred to Maghaberry prison where an integrated system operated and the prison authorities wielded firmer control. Since the closure of the Maze, all new (male) dissident paramilitary prisoners are also housed at Maghaberry. However, in 2003, paramilitary prisoners mounted a series of protests, claiming that integration put them at risk. In response, the government commissioned a review of conditions in the prison (the Steele review), which concluded that a degree of separation was required to protect members of opposing paramilitary factions from one another, as well as to protect ordinary prisoners. This recommendation was implemented, despite strong opposition from prison service staff who feared a return to the dangerous environment that had prevailed in the Maze.
4.5 British Irish rights watch has never advocated the segregation of paramilitary prisoners on political lines. We understand the historical and political reasons why such segregation came into existence, but we accept that segregation was far from ideal. In particular, as the 1997 and 1998 murders of Billy Wright and David Keys inside the Maze prison graphically illustrated, segregation did not provide a safe environment for prisoners.
4.6 On the other hand, neither have we advocated enforced integration of paramilitary prisoners. In our view, prison populations are microcosms of the population as a whole. If Northern Ireland society is not yet ready for integration, then it is neither desirable nor possible to use prisons for the conduct of social experiments in integration.
4.7 In addition to our ongoing fears about prisoner safety, we remain concerned that conditions for those detained in Maghaberry who have opted for the new regime of separation do not meet international human rights standards. A Compact for Separated Prisoners has been developed by the Northern Ireland Prison Service, which a prisoner must sign when he chooses to enter the separated regime. Those who have availed themselves of this option, however, contend that the actual regime in force is much more restrictive than laid out in the Compact and violates their rights. In particular, prisoners argue that they have extremely limited options for association and that their movements are severely restricted. In addition, their opportunities for education are very limited and they are subjected to an oppressive system of constant searching (see section 6 below). These complaints are currently the subject of judicial review proceedings in Northern Ireland. British Irish rights watch would appreciate the assistance of the Committee in seeking further details from the UK about conditions for separated prisoners in Northern Ireland and about their compliance with the Convention against Torture, the United Nations Basic Principles for the Treatment of Prisoners, and the Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment.
4.8 The Steele review also recommended that special efforts should be made to recruit more prison staff from the nationalist community. We think this does not go far enough. For historical reasons the prison service in Northern Ireland is predominantly Protestant and unionist in both its composition and its ethos, which means that it does not reflect the community of prisoners that it serves. That is not an acceptable state of affairs because it tends towards discrimination against Catholics/nationalists/republicans. Another problem within the prison service is the disproportionate influence on the management of prisons wielded by the Prison Officers Association, the prison officers’ trade union. Prison officers often challenge managers’ decisions and orders as being in contravention of agreements made with the POA, and POA officials can and do act as intermediaries between staff and managers. This affects the day-to-day management of prisons and weakens managers’ authority. We believe that the prison service as a whole would benefit from a complete overhaul similar to that undertaken for the police.
4.9 There is at present no separate prison for women or female young offenders in Northern Ireland. In its annual report of 2002/2003, HM Inspectorate of Prisons recommended that Mourne House (the section of Maghaberry prison used to house female prisoners) should have its own management and trained staff to meet the particular needs of women and girls. The report also concluded that “an excessive level of security” had developed at Mourne House.[27]
4.10 We also believe that the prison estate in Northern Ireland is out-dated and inadequate. Rather than the current two large, concentrated prisons for adults at Maghaberry and Magilligan, smaller, more modern facilities with a wider variety of regimes, including an open prison and a women’s jail, would allow a much more flexible approach to the need to segregate some prisoners from others. That need is not unique to paramilitary prisoners, nor to Northern Ireland, but the present estate makes it harder to meet. We understand that a review of the prison estate is taking place, but we have no information about its outcome.[28]
5 The police and prisoner complaints systems
5.1 British Irish rights watch welcomed the creation of the office of the Police Ombudsman in 2000 and has followed its work closely since that time. We are pleased to note that in her most recent annual report, the Ombudsman commented on the downward trend in the number of complaints that she has received since 2001. In addition, she recorded a change in the seriousness of the nature of allegations made about policing conduct. Allegations relating to oppressive behaviour (assault, harassment and intimidation) have reduced from 49% of the total in 2000-2001, to 37% of the total in 2003-2004. We believe that these reductions demonstrate the positive effect of the Police Ombudsman’s office and hope that the trend continues.
5.2 The experiences of those who have had dealings with the Police Ombudsman have varied widely, with some feeling that their complaints and cases were handled well and others feeling that they were treated poorly and an inadequate investigation carried out. Both some complainants and NGOs working with them have found that they are not kept fully informed about their cases and that important documents are withheld from them. Similarly, there have been occasions where lawyers have complained that they have been sidelined or excluded from meetings between the Ombudsman’s office and their clients. British Irish rights watch would like to see more transparency in the operation of the Police Ombudsman’s office and its handling of complaints.
5.3 The mechanisms for scrutinising the behaviour of soldiers in Northern Ireland are inadequate. Complaints are normally investigated by internal Ministry of Defence police. Very serious offences may be referred by them to the Police Service of Northern Ireland (PSNI), or the PSNI may investigate independently. The Independent Assessor of Military Complaints Procedures in Northern Ireland, a position that was created in 1991 to act as a “watchdog” for the procedures used by the Army to deal with complaints, does not examine individual complaints about individual soldiers. In addition, the Independent Assessor has no dedicated staff of independent investigators.
5.4 In its Fourth Periodic report, the UK indicates that new arrangements for dealing with prisoners’ complaints were introduced in 2001. However, recognising the inadequacy of the current system and following the recommendation of the Steele review, in April 2004, the Northern Ireland Prison Service outlined its proposal for a new prisoner complaints system and the creation of a prisoner ombudsman. British Irish rights watch provided comments on this proposal, expressing several concerns about its terms. We took the unusual step of rejecting the proposal outright, as we do not believe that it would create an effective, independent and expeditious prisoner complaints procedure.[29]
5.5 Following the receipt of comments on the proposal from a range of NGOs and agencies, the Prison Service announced a slightly modified version of the proposed ombudsman and complaints system.[30] This revised proposal does not, however, address our concerns and we do not think that it offers an adequate mechanism for prisoners to complain about their treatment in detention. In particular, we do not think that it is appropriate to require a prisoner to make his or her initial complaint to the person whose decision or action is the subject of the complaint. Nor do we consider it necessary or expeditious for there to be three internal stages for a complaint to follow before it reaches the ombudsman. We also believe that the ombudsman should have much greater access to necessary documentation in order to ensure that he or she can do a thorough and effective job.
6 Strip searching
6.1 A further area where we would welcome the intervention of the Committee is with regard to the strip searching of prisoners. In 1995, following its review of the United Kingdom, the Human Rights Committee stated that it was “disturbed by reports of the continuation of the practice of strip searching male and female prisoners in the context of the low security risk that now exists and in view of the existence of adequate alternative search techniques.”[31]
6.2 British Irish rights watch continues to be concerned about strip searching in Northern Ireland’s prisons, which is a humiliating and degrading practice that can easily be abused so that it becomes intimidatory. For example, strip searching before and after court hearings, legal consultations and family visits – even in cases where there has been no physical contact with any other person - can act as a disincentive to prisoners’ attending hearings such as judicial reviews taken on their behalf, or asking for legal or family visits. Women in particular find strip searching intimidatory in itself. In our view, strip searching is unnecessary given modern technology and subjects both male and female prisoners to humiliating and degrading treatment.
6.3 In April 2004, reports were received that paramilitary prisoners in Maghaberry prison had staged a “naked protest” over a perceived increase in strip searching. In addition, those paramilitary prisoners detained in separated accommodation in the prison complain that they are subjected to excessive searching whenever they leave their cells for association time or for visits with family members or legal representatives. Prisoners report that it is not uncommon to be searched a dozen times between leaving their cell for a visit and returning to it, and that of these searches one or two may be strip searches. When a strip search is conducted, it is the regular practice for it to be carried out in a room with a number of prison officers dressed in full riot gear and carrying batons. Understandably, prisoners find such searches intimidatory and degrading.
6.4 The issue of excessive strip searching and the restricted movement of inmates in Maghaberry prison was raised in a parliamentary question to the Secretary of State for Northern Ireland in 2004. In response, the Secretary of State noted that such searching was essential in order to protect the safety of prisoners and staff and assured that “the level of searching that takes place in Maghaberry is the same across the rest of the UK for similar category prisoners.”[32] However, in the House of Lords, the Home Office Minister of State for the Criminal Justice system and Law Reform later stated that the Northern Ireland Prison Service does not have a centralised database of search statistics, which means that it is impossible to compare the incidence of strip searches in Northern Ireland with other jurisdictions.[33] While we continue to call for an end to strip searching, British Irish rights watch believe that, should the current practice of strip searching be continued, such statistics should be compiled and be subject to public scrutiny.
6.5 A related concern pertains to the treatment of prison visitors. While we understand the importance of ensuring that visitors do not smuggle drugs or weapons into prisons, we consider that the current practice is excessive and humiliating for prison visitors. At Maghaberry prison, we understand that while waiting to be admitted to the prison visiting area, visitors are asked to stand in a line while a dog trained to detect drugs is walked past. Should the dog sit down in front of a particular visitor, this indicates that it has smelt drugs and the visitor is pulled out of the line. According to a complaint received by British Irish rights watch, the visitor is then publicly told that he or she is suspected of bringing drugs into the prison, and therefore they can either agree to a closed visit, or their visit must be cancelled. The visitor is not given the option to undergo a search to determine whether he or she is in fact carrying drugs, or whether they have simply been unwittingly contaminated by contact with objects or other persons. The particular complaint received by British Irish rights watch concerned an incident involving a respectable middle-aged lady who has never had any contact with drugs and who was visiting a prisoner who has never been accused of involvement with drugs. The procedure can be extremely upsetting to a visitor, as well as to the person in detention whom they are seeking to visit, and we believe that a less public and humiliating procedure could be operated just as effectively.
7 Secure units
7.1 In its Fourth Periodic report, the United Kingdom states that “closed visits (in booths) are still a necessary security measure [in Special Secure Units in England and Wales].” In our previous submission to this Committee, British Irish rights watch expressed serious concerns about the effect of closed visits on prisoners, as well as about the operation of Special Secure Units (SSUs). [34] Such units were previously used to house a disproportionate number of Irish prisoners convicted of offences relating to the Northern Ireland conflict. To the best of our knowledge, there are no Irish prisoners in SSUs at the moment because they are full of prisoners accused of connections with al Qaeda and related international terrorist offences. However, we remain concerned about the continued existence of the SSU regime in England and Wales and the fact that it is open to the government to transfer Irish prisoners to SSUs at any time.
7.2 In our previous submissions we have highlighted the fact that the SSU regime amounts to the functioning of a prison within a prison, where restrictions on prisoners are extremely strict. Prisoners kept in SSUs have reduced access to educational facilities and they lack mental and academic stimulation, even though many of them are of above average intelligence. They can only benefit from a fixed quota of “education hours” and are not allowed to work, which deprives them of association. They are deprived of natural daylight because even the exercise yard is covered over by girders. They lose all sense of geography and their long distance vision is affected. There is also increasing evidence that they suffer psychological damage. They become reclusive because they have too little privacy, being under constant surveillance and living too close to fellow inmates.
8 police and prison officer human rights training
8.1 The report of the Independent Commission on Policing for Northern Ireland (Patten Commission) recommended a human rights-based approach to policing, incorporating a new Code of Ethics and comprehensive human rights training for all police officers.[35] A training programme for new recruits and serving officers has been designed and implemented, and the Northern Ireland Human Rights Commission has observed and reported on training sessions. Having examined the reports of the NIHRC, British Irish rights watch is concerned that training on human rights principles and their practical application has not been sufficient to ensure that respect for human rights occupies the central place in policing envisaged by the Patten Commission. Training needs at all levels should be continually reviewed and improved, to ensure that all police officers and support staff are fully versed in human rights standards and are in a position to implement those standards on a day-to-day basis. Most importantly, human rights training must be integrated into all training programmes so that it is made clear that it is not a marginal area that can be dealt with superficially, but rather the core of effective modern policing in Northern Ireland.
8.2 The NIHRC reports on the Student Officer Training Programme (published in 2002), the Probationer Constable Training Programme (published in 2004), and the Course for All (published in 2004) do contain many positive elements. However, they also identify areas of concern that need to be addressed as a matter of urgency. The following extracts from the reports do not provide a comprehensive list of the concerns raised by the NIHRC, but highlight areas of particular relevance to the work of the present Committee and the need to ensure full respect for the rights enshrined in the Convention Against Torture.
· The evaluation . . . considers that greater efforts are required in order to ensure that human rights are effectively mainstreamed into the content of the training which is being delivered at Garnerville [the police training college]. The remaining impediments to effective mainstreaming which were identified during the evaluation include: an emphasis on criminal procedure considerations to the detriment of human rights issues; a lack of consistency between trainers; and limited human rights knowledge amongst trainers.[36]
· The adoption of the SECAPRA [problem solving] model is a welcome development. However, it is unlikely that student officers’ use of SECAPRA will survive the transition from a simulated policing environment to the “real world” unless they are persuaded that it can provide more than just a useful tool to clarify the component elements of problem-solving. This will not be the case unless the scenario material used to support the teaching of SECAPRA credibly reflects the realities of practical police work in Northern Ireland.[37]
· . . . the time spent on each of the [European] Convention rights was rather limited, and the coverage of relevant jurisprudence was somewhat superficial. Moreover, as regards certain articles (including key provisions such as articles 2 and 3 of the Convention), the content of the lecture was misleading and/or based on outdated jurisprudence. For example, much was made of the 1978 judgment of the Court in the case of Ireland v. United Kingdom, regarding the nature of conduct which could be classified as torture. While this remains a leading case, student officers were not alerted to important recent developments in the Court’s jurisprudence on this point in cases such as Tomasi v. France, Aksoy v. Turkey and Aydin v. Turkey.[38]
· Sincere efforts were being made by all of the PSNI trainers observed to incorporate human rights elements into the learning events for which they were responsible. However, they were the first to admit that they did not consider themselves particularly knowledgeable about human rights issues. Due to time constraints, it was not possible to examine or evaluate the human rights elements of the training which is being given to PSNI trainers, but it was evident that, to date, it has not been sufficient fully to equip them for the difficult task of rendering human rights principles meaningful to student police officers.[39]
· The [Conflict Management Course] training also stresses that when force is used, it must be proportionate in the circumstances; however, student officers are given relatively little guidance as to what this might actually mean in practice.[40]
· Teaching on the [Conflict Management Course] stresses that whether or not the degree of force applied is “reasonable in the circumstances” is a highly-subjective matter. It also lays considerable emphasis on the need for police officers to be able to account for the degree of force which they have used. These are important points; however, they need to be balanced by practical guidance which assists officers to judge the degree of force which is proportionate to the particular circumstances by which they are confronted. If this element is absent, then student officers could easily be led to conclude that, in so-called “non-lethal” cases, they can use whatever degree of force they personally consider appropriate, provided that they can produce a post hoc justification which mirrors the terms of the legislation in force.
The following statements by trainers and exchange between a trainer and a student serve to illustrate the reality of the risk that student officers will be trained to say the right thing, rather than to do the right thing:
Trainer: “Nowhere in the written legislation will you find a requirement to use the minimum force, so don’t say that you used minimum force.”
Trainer: “If you are challenged on your use of force, remember to always use the phrase ‘it was my perception and honestly-held belief’”.
Trainer: “ALPS [a PSNI mnemonic on applying human rights standards in policing] means: win the fight; win the conviction and have an answer if challenged”
Student: (during a session on ground defence techniques): “Can you give him [the assailant] a kick on the way out?”
Trainer: “That’s up to you. It depends on your ‘honestly-held belief and perception’. What you wouldn’t want is for it to be seen on video that you’d gone and kicked him after bringing him down and escaping.” [41]
· The subject of positional asphyxia was mentioned on several occasions during the learning events observed; however, student officers were not given any written material (e.g. a detailed handout with diagrams), stressing the risks involved, and the steps which can be taken to reduce those risks.[42]
· As regards the permissible limits to the use of force, it remains the case that trainees are not being offered practical guidance to assist them to judge the degree of force which might be proportionate to particular circumstances by which they may be confronted.[43]
· Concern must also be expressed about the persistence of suggestions by CRS trainers that, if force is used, as much force as possible should be used.
· The 2002 evaluation of the SOTP [Student Officer Training Programme] recorded that trainers had made remarks to the effect that “if a person needs to be struck, always hit them as hard as you possibly can, because one hard blow could be one assault whereas twenty softer ones could be twenty assaults”.
Regrettably, more than a year later, very similar statements are still being made to probationer constables undergoing part 2 of their CRS [Conflict Resolution Skills] training. For example:
Trainer: “If you hit a person fairly softly four or five times, that can create four or five bruises. So, from our point of view, when they go to a doctor or solicitor, there will be more medical evidence which could be used against us. So, it’s far better, if you do use force against someone, to hit them as hard as you possibly can. Because, if you think about it, has any machine been invented which can be wheeled into Court and used to prove your actual force, and whether you used all of it, or only 50%?”[44]
· [I]t is a matter of concern that parts of [the so-called “PPCT transport wrist lock procedure”] were demonstrated to probationer constables without any clear guidance as to whether or not they constitute restraint techniques which have been approved for their use. Moreover, probationer constables were not informed about the possible medical implications of holding a person in a ground pin which could interfere with inhalation and/or exhalation and from which that person cannot escape. It might be added that the above-mentioned PPCT manual was also silent on this point.[45]
· The volume of material to be covered in the [Course for All] was far in excess of what could be usefully delivered in a two day course. Each section was capable of forming the basis of a two day course in and of itself. This reflects the assessment of the Office of the Oversight Commissioner that the ‘Course’s objectives were extremely ambitious. Experience indicates that dealing with material of this complexity, and at an appropriate level of detail, requires more time than the two days that have been allotted to the Course.’[46]
· The materials too often portrayed human rights and equality issues as forced on the police service from outside. This was likely to contribute to students feeling alienated from these ideals. In a similar vein, the implication that respect for human rights and ethical behaviour were something new for PSNI members could, of itself, be construed as alienating.[47]
· The second session in each course was concerned with the new PSNI Code of Ethics. ... Unfortunately the training provided in the Course for All fell short of what would be expected in such an important area. It is impossible to provide effective training on a Code of Ethics without recourse to scenarios and examples which allow the ethical dilemmas to be discussed in a frank and challenging way.[48]
8.3 Despite the efforts of the UK to incorporate human rights training into training programmes for police officers in Northern Ireland, the manner in which this has been done fails to address fundamental problems that inhibit the development of a strong human rights culture in policing. Most importantly, the problem of sectarianism within PSNI as well as its relationships with different communities in Northern Ireland need urgent attention.
8.4 The figures provided by the UK with regard to the composition of the PSNI do not give a true picture of the level of under-representation of Catholics in the police. While the Chief Constable of Northern Ireland, in his 2003/2004 report, states that Catholics now make up 14.64% of the police service, if you take account of the entire police strength, including the reserve, the fractions become smaller. According to the Policing Board’s Annual Report 2003/4, in 2004 only 6.5% of the Full Time Reserve and 5.1% of the Part Time Reserve were Catholic. With 1,641 FTR and 861 PTR (2,502 in total), plus 7,332 in the regular police service, the two reserves account for 34.1% of the police in Northern Ireland. According to the Board’s figures, in 2004 only 1,168 Catholics were serving in all three arms, amounting to 11.9% of the total police service.[49] Recently it was announced that fifty percent of the reserve is to be abolished. While this may marginally improve the statistics in relation to Catholic membership, the truth is that the PSNI has a long way to go before it reflects the community it serves, not only in terms of religion, but also in terms of women and people with disabilities.
8.5 British Irish rights watch supported the renewal of the 50:50 recruitment policy in March 2004. We believe that the scheme has increased Catholic participation in policing, but it is not helpful to distort the results to demonstrate greater success than has been achieved. There remains a great deal of mistrust among the Catholic community of the police and many potential police recruits from within the community still fear that joining the PSNI would result in social ostracism and potential violence against themselves. Achieving greater confidence in the police from across communities in Northern Ireland requires a sustained effort, including tackling issues such as impunity for past human rights abuses by state agents and lack of effective investigations, discussed earlier in this submission.
8.6 With regard to human rights training for prison officers, we believe that such training should be ongoing, rather than limited to small elements of induction training. We would therefore welcome the assistance of the Committee in probing the UK on the extent and content of human rights training for prison officers in Northern Ireland.
9 plastic bullets and other weapons
9.1 The use of rubber and plastic bullets (officially referred to as baton rounds) as a method of crowd control in Northern Ireland has resulted in 17 fatalities and many hundreds of injuries, since 1972.[50] Over the past thirty years, many groups have campaigned against the use of plastic bullets as a form of riot control, arguing that they are simply too dangerous and are used in an unsafe way, such that people are subject to a high degree of risk of injury or death. In 1999, the Patten report recommended that “an immediate and substantial investment be made in a research programme to find an acceptable, effective and less potentially lethal alternative to the PBR [plastic baton round].”[51]
9.2 British Irish rights watch welcomes the fact that plastic bullets have not been fired in Northern Ireland since September 2002. However, this is not as a result of their abolition, as recommended by this Committee in 1998, and the Committee on the Rights of the Child in 2002.[52] The PSNI retains large stockpiles of plastic bullets and could use them again tomorrow if they saw fit. In addition, it is both ironic and distressing that, while efforts are being made in Northern Ireland to find an alternative to plastic bullets, they have been made available in Great Britain, although thankfully they have been used only rarely and not for riot control.
9.3 Despite the claim that the L21A1 plastic bullet, in use since June 2001, is safer than its predecessor (the L5A7), we are greatly concerned that it nonetheless may cause excessive injuries or death, as well as posing a risk to bystanders if it is used in public order situations. Injuries resulting from the use of plastic bullets since the introduction of the L21A1 include a shattered elbow, severe bruising, a fractured leg, spinal injuries and nerve damage, breathing difficulties and abdominal injury. Indeed, the fact that no-one has actually been killed in Northern Ireland by the L21A1 appears to be more a matter of luck than due to the nature of the weapon. A review of the human rights implications of the introduction of the L21A1 was conducted by the Omega Foundation for the Northern Ireland Human Rights Commission, and its findings published in March 2003.[53] The Foundation concluded that the L21A1 was potentially a more lethal weapon than its predecessor and also raised questions about the adequacy of the record keeping and accountability process associated with its use.
9.4 In its fourth report, published in January 2004, a Steering Group led by the Northern Ireland Office, which is tasked with researching “alternative policing approaches towards the management of conflict” stated that “both [the L21A1 plastic bullet and the 12-Gauge Sock Round] would produce serious fractures to the skull at a range of 2 m.”[54] However, the current guidelines for firing plastic bullets prohibit firing at a range of under one metre.[55] It would appear that this distance is dangerously short. In addition, new guidelines on the firing of plastic bullets, issued in December 2003, state that:
Every effort should be made to ensure that children are not placed at risk by the firing of baton rounds in public order situations and children should not be directly targeted unless their actions are presenting an immediate threat to life or serious injury, which cannot otherwise be countered.[56]
This seems to be telling those who fire plastic bullets that children can be “targeted” in the very same circumstances as adults. We agree with the Committee on the Rights of the Child that these weapons should never be used against children. It is indeed the unfortunate case that half of the fatalities caused by plastic bullets have been children.
9.5 While the government has stated its commitment “to finding an effective and acceptable alternative to baton rounds,” this goal has apparently not yet been realised. In January 2004, the Minister of State for Northern Ireland declared that “despite a protracted and international search for a commercially available product, we have been unable to find anything that meets the criteria of an acceptable potentially less lethal alternative to the baton round currently in service which provides an effective capability that does not expose officers and the public to greater risk in violent public disorder.”[57] We do not consider this a satisfactory response. We believe that plastic bullets constitute an unacceptable weapon, the use of which violates the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The Basic Principles enjoin police forces to “apply non-violent means before resorting to the use of force and firearms” (Article 4) and to develop non-lethal incapacitating weapons “with a view to increasingly restraining the application of means capable of causing death or injury” (Article 2). The Basic Principles do not allow any exceptions, even in situations of “internal political instability or any other public emergency” (Article 8). A weapon that has caused so many fatal and serious injuries during the history of its deployment is, we argue, unsuitable for use in crowd control.
9.6 We understand that a new form of bullet is being developed, known as the Attenuating Energy Projectile (AEP), which is essentially a soft-nosed plastic bullet. In response to a written question in the House of Commons, on 8 September 2004 the Parliamentary Under Secretary of State for Northern Ireland stated that “the Government remains committed to developing an effective, less potentially lethal alternative and, as announced, it is hoped that the AEP will be ready for operational deployment before summer 2005.”[58] British Irish rights watch do not consider the AEP to be an alternative to plastic bullets, but simply a new type of plastic bullet and this view is shared by Northern Ireland’s police Oversight Commissioner. In his latest report, the Oversight Commissioner emphasises that “the AEP remains a projectile weapon, albeit safer, and is a replacement [of the plastic bullet] not an alternative.”[59] Moreover, while the AEP has apparently been developed in order to minimise the risk of head injuries, it is still a potentially lethal weapon and one that could cause significant injuries to any part of the body struck. In our view these weapons should never be deployed. At the very least their deployment should not be authorised until all medical research into their effects has been completed.
9.7 In addition to our opposition to plastic bullets, British Irish rights watch also has concerns about some of the so-called “less lethal” weapons being proposed or already used in Northern Ireland. In its report, the United Kingdom notes that the PSNI have six new water cannon, which remain to be deployed, pending medical evaluation. At present, there is still only an interim medical assessment available,[60] despite the fact that the body providing the assessment appears to have been asked for a final statement by October 2002.[61]
9.8 Another type of weapon under development is the “discriminating irritant projectile,” designed to incapacitate an individual through delivery of irritant to their upper body from a distance. We are concerned that the operational requirements for the DIP specify that it should cause “a probability of unacceptable injury not higher than the L21A1.”[62] This is not in keeping with the Patten recommendation of a less lethal alternative to plastic bullets. We are puzzled by the specification that the DIP should not introduce any new injury mechanisms to those caused by plastic bullets.[63] It seems to us that a chemical irritant is highly unlikely to reproduce the sort of injuries caused by plastic bullets, and may cause completely different injuries, particularly to the sensory organs and lungs.
9.9 We are particularly concerned that the irritant agent “would almost certainly be CS.”[64] CS is potentially hazardous, both to the public and to police officers. It is an irritant that can damage the eyes and cause severe problems for people with respiratory disorders such as asthma, skin conditions such as dermatitis, and other diseases such as hypertension, all of which are common conditions among the general population. Furthermore, research into the effects – particularly the long-term effects– of CS is lacking. Indeed, in July1998 The Lancet called for a moratorium on the use of CS in view of the lack of evidence for its safety. Police officers in particular run a high risk of cross-contamination when CS is used, whether by themselves or by fellow officers, and also run the risk of frequent exposure. The difficulty of de-contaminating both the skin and clothing after exposure is a further concern.
9.10 CS delivered in the form of a spray from close range is already in use in Northern Ireland, although the PSNI has stated that it is used only in violent incidents involving individuals, rather than in public order situations. British Irish rights watch are disturbed by reports that in at least one recent incident, CS spray was directed at the face of an individual who had already been subdued and handcuffed. We welcome the fact that all incidents where CS spray is used are automatically referred to the Police Ombudsman, but in our view, the use of CS, in either a spray or a projectile, violates the prohibition of torture and cruel, inhuman or degrading treatment because it is designed to modify behaviour by the infliction of pain and intense discomfort.
9.11 We are not naive about the difficulties faced by the police, let alone in a violent society such as Northern Ireland, nor are we opposed to the search for less lethal forms of control than plastic or real bullets. However, we note that the proposed introduction of the DIP is not perceived as an alternative but an additional weapon in the PSNI’s already heavy arsenal. Moreover, the deliberate inflictio