DEALING WITH THE PAST

 november  2007

INTRODUCTION

1.1       British Irish rights watch (BIRW) is an independent non-governmental organisation (NGO) and registered charity that monitors the human rights dimension of the conflict and the peace process in Northern Ireland.  Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual outcome of the peace process.

 1.2      After some deliberation, BIRW has decided to respond to the consultation exercise by the Consultative Group on the Past. We do so with some reservations.  As the Consultative Group on the Past will be aware, BIRW was not impressed with the way in which the Group was established by the Northern Ireland Office.  While we do not doubt the independence of the individual members of the Group, the very fact that the Group itself was established by the Secretary of State for Northern Ireland undermines its independence.  The Group as a whole is not particularly representative of the diversity of cultures and opinions in Northern Ireland, and does not contain a single human rights expert.  In that respect, it does not compare well with the Healing Through Remembering Project, which went to great pains to ensure that it was as representative as possible.  The Northern Ireland Office did not consult about the Group’s membership, nor its terms of reference, which in our view are vague.  Furthermore, the way in which the group itself has gone about its consultation process, which has been simply to ask people for their views, is not ideal.  It would have been far preferable if the Group had given some preliminary thought to its terms of reference and put out a consultation document outlining various possible options and asking for responses to specific questions.  As things stand, the Group is likely to receive a very disparate set of responses, which will be difficult to compare to one another.  Given the very short time limit of only one year, such an unstructured consultation may prove to be a luxury that the Group cannot afford.  We were also concerned to learn that, despite the many repercussions of the conflict for many victims in the Republic of Ireland, the Group only belatedly included them in the consultation, and we wonder whether the same has been true for those victims living in Great Britain.  We welcome the fact that the Group has extended the deadline for submissions, and is holding public meetings.  We wonder whether it might also be beneficial to have a website.  We also hope that the Group will hold a further consultation, outlining what they see as the main options available, before writing its final report, and that, if necessary, it will seek an extension of its overall timeframe in order to achieve this.

 1.3     Our concerns are deepened by the context in which the consultation exercise is taking place.  There is a genuine debate about dealing with the legacy of the past that has been taking place in Northern Ireland at many different levels ever since the ceasefires of 1994.  That debate intensified with the signing of the 1998 Good Friday/Belfast Agreement and with the recent restoration of the Northern Ireland Assembly.  At the same time, there are changes taking place which affect those mechanisms that exist which already treat with some of the legacy of Northern Ireland’s conflict.  There are questions surrounding the funding and the future of the PSNI’s Historical Enquiries Team (HET).  The former Police Ombudsman, Nuala O’Loan, who had established a reputation for fierce independence and a willingness to deal with some very complex cases arising out of the legacy of the past, has been replaced by the previous Oversight Commissioner for the Patten reforms of policing in Northern Ireland, Al Hutchinson, who has already stated that the Police Ombudsman’s office is a “blunt instrument” when it comes to dealing with the past[1].  The very establishment of the Consultative Group on the Past, with its emphasis on “building a shared future that is not over-shadowed by the events of the past”, and its very short timetable, adds to a strongly-held perception in many quarters in Northern Ireland that moves are afoot to sweep the past under the carpet.

OBSTACLES FACING THE CONSULTATIVE GROUP

 2.1     BIRW strongly endorses the notion that Northern Ireland is badly in need of a shared future that is not over-shadowed by its past, provided that future is based on respect for everyone’s human rights and on equality.  However, at the risk of stating the obvious, such a desirable outcome is unlikely to be achieved overnight.  It is unrealistic, to put it mildly, to think that over thirty years of bitter sectarian conflict can be dealt with in a single year.  Reaching that prize will require a process.  Many people will have to abandon entrenched positions, think the presently unimaginable, enter into relationships with people they previously regarded as enemies, and literally learn to forgive and forget.  There are many obstacles that such a process will have to overcome, some of which we examine here.

 2.2     The Good Friday/Belfast Agreement itself, while it has hopefully moved the situation in Northern Ireland from one of armed conflict to one of political process, nonetheless has left the previously warring factions with everything to fight for politically, in that if one side or the other can win the political argument, then both the unionist aspiration for Northern Ireland to continue as part of the United Kingdom and the nationalist aspiration of a united Ireland remain perpetual possibilities.  While in many ways this is simply a pragmatic statement of the democratic arithmetic, so long as the Agreement holds there is a potential disincentive to work towards a shared future, because such a future could undermine those cherished aspirations.

 2.3     The cost of the conflict in Northern Ireland has been well-documented and horrendous.  There can be scarcely an individual or a family that has not been touched by the violence. The Historical Enquiries Team (HET) owes its very existence to the fact that there are in excess of 3,250 unsolved killings arising out of the conflict between 1969 and April 1998, and there remains a large number of individuals, in some cases whole communities, who still live in fear because the conflict has yet to be fully resolved.  BIRW have, by virtue of our remit, worked with the bereaved, the injured and the mentally scarred on all sides of the community.  Many of those with whom we work have never had any opportunity to achieve closure.  Many of them have never had any access to personal counselling to help them deal with their grief.  Many of them have suffered terrible social isolation, receiving no support from their local communities.  Many of them have been lied to, harassed and abused for trying to find out the truth about what happened to their loved ones.  It has been our observation that, where loss goes hand-in-hand with injustice, as has happened all too frequently in Northern Ireland, many people are simply incapable of leaving the past behind them.  For them, the events that gave rise to their loss, and the pain engendered by that loss, are as fresh as if they happened yesterday.  They feel that, since the dead cannot speak for themselves, they must speak up for them, and pursue justice in their name.  To give up that pursuit would feel to them like the blackest of betrayals.

 2.4     We have also found that a single death can have a ripple effect which spreads beyond the immediate friends and family of the deceased.  It can affect the extended family, including subsequent generations who never knew the deceased, and can also affect the wider community.  This kind of death takes on an iconic status, standing as a symbol for the grievances of the many.  In such cases – Billy Wright and Patrick Finucane being just two of many examples – what happens is watched by a very wide audience, both domestically and internationally.  If, as has happened so far, those cases do not receive justice, then that failure has a corrosive effect on a much wider community than the immediate circle of the deceased.

 2.5     In our work with victims – and this perhaps holds some hope for Northern Ireland’s future – we have found that victims are seldom if ever interested in revenge or retribution.  What they want above all is to find out the truth about what happened, whether to themselves or a loved one.  They also want to be reassured that what happened to them will not happen to anyone else – an expectation that has all too often been unfulfilled.  Thirdly, wherever possible, they want justice.  They want those responsible, including not only perpetrators but instigators and those responsible for bad policies, to be held to account.  However, victims are not unrealistic about what the justice system can deliver, and this aspiration for justice is often linked to the wish to ensure that the past does not merely repeat itself.  One victim, Alan McBride, who lost his wife Sharon and his father-in-law John Frizell in the IRA chip shop bombing in the Shankill Road in October 1993, and now works for the WAVE Trauma Centre, recently summed up what many victims have told us:

“… I believe that society should do whatever it can in helping victims and survivors move on in their lives by helping to create the right conditions for them to heal.  For example, by putting in place mechanisms that effectively deal with the past and through the further facilitation and development of self-help groups.”[2]

            These are very powerful, legitimate feelings, held right across communities, and any mechanism for dealing with the past must take them into account.

 2.6     One of the greatest obstacles to moving forward into a better future is the enormous human rights deficit which has been allowed to develop in Northern Ireland.  Many of the proposals we make in this submission stem from, and are intended to suggest remedies for, the lack of respect for human rights which has permeated Northern Ireland at many levels for far too long.  That lack of respect was illustrated at its worst in the October 2007 debate in the Assembly on the Bill of Rights Forum[3].  However, if anything positive could be taken from that debate, it was that unionists are demanding recognition for their own history of the defence of rights – although not necessarily human rights – and rather than boycotting bodies such as the Forum they are demanding greater representation.  In our own work, we have found that the Protestant/unionist/loyalist community has been slower to embrace human rights than their Catholic/nationalist/republican counterparts, but increasingly they are coming to see that human rights belong equally to everyone.  This often leads to the building of strong bridges between individual members of the communities, and each community is beginning to have greater awareness of and respect for the other’s rights, which shows that respect for human rights is a powerful tool that can and should be used to greater effect in building a shared future for the people of Northern Ireland. 

 2.7     We understand that the Consultative Group on the Past wishes to focus on a brighter future, but it seems to us that the legacy of the past in Northern Ireland runs much too deep to be amenable to a quick fix.  Any attempt to deal properly with that legacy must be genuine, transparent, and must take as its starting point the need to establish a shared narrative of what actually happened in the past.  This is in fact an enormous task, and the Group will be judged on the processes it adopts as much as on its end product.

A TRUTH COMMISSION?

 3.1     One strand of the debate about dealing with the past concerns the question of whether Northern Ireland needs a truth commission, or a truth and reconciliation commission.  In our view, truth and reconciliation are not the same and do not necessarily go together.  Reconciliation implies, if not forgiveness, then at least an element of acceptance or resignation.  It is asking rather a lot of victims that they should be reconciled to perpetrators or events that have destroyed part of their life.  Equally, it seems inappropriate for people other than the victims to adopt a stance of reconciliation on their behalf.  Reconciliation is, we believe, a personal matter and the degree to which it can be achieved will vary from one individual to another.

 3.2     As for a truth commission, there is much to be said for such a proposition, in our view, but we fear that Northern Ireland is a long way from being ready for such a process.  Most truth commissions have taken place in countries where there has been a radical change of regime.  This has not been the case in Northern Ireland, which has been ruled by consensus between the major Westminster political parties throughout most of the conflict.  Furthermore, we can detect very little appetite for a truth commission amongst those who would have most information to contribute.  Neither the UK nor the Irish governments, the paramilitaries, the political parties (despite some political posturing from some of them), the security forces (the police, army and intelligence services), nor the civil service are anxious for a truth commission.  The only people who really want one are NGOs like ourselves and some of the victims.  Not all victims want to rake over the past, and some who have been fortunate enough to achieve closure would not welcome a truth commission.

 3.3     One of the major reasons why there is so little enthusiasm for a truth commission is the legacy of collusion, which has cast a very long shadow over the conflict.  It has become abundantly clear through the work of the NGOs, the Police Ombudsman, the Stevens Enquiries, and the HET, that collusion in some shape or form has been rife in Northern Ireland throughout the conflict.  It has also become obvious that the government had both loyalist and the republican paramilitary groups deeply penetrated at the highest levels.  The questions that remain unanswered are: why, if they had so much intelligence, did the conflict go on for so long; and why were so many lives lost?  These are questions that we believe the powers that be are not ready to answer, yet they are two of the most important questions arising out of the conflict.  On 25^th October, Prime Minister Gordon Brown made a speech about liberty.  At the end of his speech, he said:

“…we must never forget that the state and the people are not equivalent.  The state is always the servant of the people.  We must remember that liberty belongs to the people and not governments.”[4]

            Those are sentiments which have too often been forgotten in Northern Ireland, and which the Consultative Group may wish to keep at the forefront of their minds throughout their deliberations.

 3.4     If there were to be a truth commission for Northern Ireland, it would be vital that it be fully independent of the government – perhaps with an international panel of experts and without a cap on costs.  We also consider that, ideally, a truth commission should only be introduced once all judicial and legal avenues have been explored.  This would preclude the necessity to guarantee an amnesty where criminal culpability was in question, without hampering the truth commission’s ability to compel the attendance of perpetrators. 

3.5      For a truth commission to be developed which can provide the best possible truth recovery mechanism for Northern Ireland, there will be a need for strong political and community will.  Research has shown that 49.6% of people in Northern Ireland think that a truth commission is either very or fairly important for the future.[5]  However, as the researchers discovered, this statistic may be misleading; negative issues such as the fact that 81% of people thought that the money would be better spent on other things, were also expressed[6].

3.6     Were a truth commission to be adopted for Northern Ireland, we hope that lessons will be drawn from the experience of other truth commissions around the world.  At the same time, it is vital that a truth commission is appropriate to the social, cultural and political environment in which it will operate. 

 3.7     A truth commission has the potential to act as a single point from which memorial days, museums, and other marks of commemoration could emerge.  This would ensure that the truth recovery process had longevity and that the lessons learnt from the conflict would be available to future generations.

 3.8     Notwithstanding our scepticism about the imminence of a truth commission, we sincerely believe that, unless the truth is told about Northern Ireland, then there will be no opportunity to learn its lessons, and we will go on repeating the same mistakes around the world, as the government is doing at the moment in Iraq and elsewhere, and also here in the United Kingdom[7].

 WAYS FORWARD

 4.1     There are thus some formidable obstacles standing between the Group and its objectives.  Northern Ireland is not like other countries emerging from conflict.  There has been no overthrow of a totalitarian regime on whom everything can be blamed.  There is no common acceptance of the need to change and to move on.  There is no blueprint available for achieving a shared future that is not overshadowed by the past.  The Group must, in many ways, start from scratch.

 4.2     There is, in our opinion, one chink of light in the otherwise gloomy picture that we have painted thus far in our submission.  We believe that most people on all sides of the community do not want to return to the violence of the past and do not want another generation of children to grow up knowing nothing but conflict.  If there is any credo that it may be possible for the majority of people in Northern Ireland to embrace, it might be summed up in the slogan, “Never again!”  We think that shared perception provides a platform upon which it may be possible to construct a shared future.  However, that platform is not as yet sitting on any very firm foundation.  It needs nurturing, and it needs leadership.  There have been moments in the past, particularly after the 1994 ceasefires and the signing of the 1998 Agreement, when public optimism could have been converted into public confidence, but unfortunately the political leadership required was lacking and the opportunity was lost.

 4.3     As we have already indicated, we doubt whether the Group can achieve a miraculous transformation of Northern Ireland on the short time allotted to it, and we think they would be ill-advised to attempt to do so.  What they could usefully do is to draw up some benchmarks towards which all sections of Northern Ireland society could be encouraged to work.  Each and every one of those benchmarks is likely to require massive effort, considerable resources, and a small revolution if they are ever to be achieved, but unless they can be achieved then the future for Northern Ireland looks bleak.

 acknowledgement

 5.1     The first benchmark, without which there is no possibility of building a shared future, in our view, is that every institution and individual who played a part in the conflict needs to acknowledge their role honestly.  In other words, the truth – or perhaps it would be more accurate to say the many different truths – need to be told about the past.  Some mechanism needs to be found for all the players in the conflict to put on record an honest account of their role.  Such a process might provide a path towards achieving a commonly agreed narrative of the past, but it needs to be accepted that such a process would be lengthy and difficult.  One has only to look back at slavery to see how long it can take for everyone involved to face up to a great wrong, a process which in this case remains unresolved.  Great wrongs were done in Northern Ireland, on all sides, and it will take many years if not generations before a common understanding of what really happened emerges.  Nevertheless, that process begins with acknowledgement, and acknowledgement is always easier in an atmosphere where the object is not to apportion blame but to mutually agree that many wrongs were perpetrated on all sides and that the purpose of acknowledging that fact is to move forward rather than to engage in the politics of the worst atrocity. 

 5.2     While it may sound naive to argue for such a widespread act of acknowledgment, just such a process took place in South Africa, even before it established its Truth and Reconciliation Commission; indeed, had there been no acknowledgment it is unlikely that the Commission could have taken place.  It may be that, if some mechanism can be found for enabling acknowledgement in Northern Ireland, it may eventually lead to a truth commission because it might create the consensus that is required before a successful truth commission can happen.  Be that as it may, if an acknowledgement process is to start in Northern Ireland, it cannot be on the basis of “let’s all jump together”.  It requires a high degree of courage and integrity to jump first in such a process, but once the process begins then others can be persuaded to follow good examples.  In our view, the British and Irish governments, who both have much to answer for in terms of their part in the conflict, could and should start the acknowledgement ball rolling, because of all the players in any conflict, governments hold the highest moral authority, and are also under a duty to tell the truth.  An honest appraisal and acknowledgement by both governments of their respective roles, good and bad, could create a climate in which the majority of people in Northern Ireland would expect or even demand that others followed suit.

 5.3     Finding some mechanism for enabling acknowledgement is crucial to both achieving a shared narrative of the past and making sure that the past is never repeated.

 transparency and accountability

 6.1     The second benchmark is to establish institutions, policies and practices which ensure that past wrongs can never be repeated.  This means that all public bodies must become transparent and accountable.  Some progress has been made in this direction, directly as a result of the human rights reforms contained in the Good Friday/Belfast Agreement, particularly in the areas of policing and the criminal justice system.  However, much more needs to be achieved. 

 6.2     The Police Service of Northern Ireland needs to confront its sectarian legacy more openly.  It has been very slow to monitor sectarian crime and does not do enough to counter sectarianism in the workplace.  The recent case of Stephen Murphy, a civilian photographer with the PSNI, provides a shocking illustration.  He is a Protestant who married a Catholic.  His colleagues uttered sectarian abuse against his wife, calling her a whore, and Stephen Murphy received death threats.  He was also discriminated against in terms of his working conditions.  The Fair Employment Tribunal awarded him £45,000 in damages.  A strongly-worded, public condemnation of such behaviour by police officers might have been expected from the Chief Constable, but was not forthcoming.  Instead, the PSNI announced its intention of appealing the decision, sending out completely the wrong message.  No mention was made of disciplinary action against the officers concerned.[8] 

 6.3     Until recently, the PSNI did not even count sectarian crimes, despite a recommendation from Her Majesty’s Inspector of Constabularies that they should do so.  They have now begun to record sectarian crimes, but the statistics show what BIRW believes to be serious under-counting.  For the period 1^st April 2005 to 31^st December 2005 only 1,240 sectarian crimes were recorded[9] out of a total of some 118,124 crimes in the year 2004/5.  Although the time spans for these figures do not coincide, they suggest an extremely small percentage, perhaps 2%, whereas anecdotally an Assistant Chief Constable of the PSNI once told BIRW that over 50% of all crime in Northern Ireland is sectarian.

 6.4     BIRW asked the PSNI who were the main perpetrators and who were the main victims of sectarian crime in Northern Ireland.  They were unable to answer because they do not record the information.[10]   In our view, until the authorities are prepared to ask and answer these questions, they will not be able to develop the necessary strategies or tools to address sectarianism.

 6.5     The PSNI are not the only employer that could do more about sectarianism.  In our view, all public bodies, especially the police, should be placed under an explicit[11] statutory duty to conduct mandatory anti-sectarianism training, and monitoring of complaints about sectarianism and the outcome of those complaints, as well as the fair employment monitoring that is already in place.

6.6      Official secrecy at many levels has dogged Northern Ireland’s past.  The Northern Ireland civil service, in common with their counterparts in England and Wales, have tended towards an almost Elizabethan model of secrecy in the past.  The Freedom of Information Act (FOI) is beginning to have some impact on this culture of secrecy, but there are too many avoidance clauses, particularly where the civil service is concerned.  BIRW’s experience of using the Freedom of Information Act has been patchy.  Whether the PSNI will answer questions under the Act appears to be arbitrary.  When they refuse, they take a pepper-spray approach to giving reasons, where they give so many reasons, so many of which are completely irrelevant, that we are unable to determine why our request has been refused.  On one occasion, we are convinced that the only reason the PSNI gave us the information that we sought (after a considerable delay) was that they feared we would obtain it by other means.  The NIO are somewhat better, but can be very slow.  Perhaps surprisingly, we have found that the Ministry of Defence is the most responsive agency with which we have dealt.  We have also found that many public bodies now treat any request for information as a request under the Freedom of Information Act.  This is unhelpful, because, instead of just answering the question, public bodies apply an FOI mindset, which means that they first consider whether they need to answer at all.  The Freedom of Information Act should be reviewed with a view to increasing the accountability of all public bodies.

 6.7     Public Interest Immunity Certificates (PIICs) have been issued all-too-readily by government ministers, with Secretaries of State for Northern Ireland and for Defence being the worst offenders.  Too often, public interest immunity has been prayed in aid not in order to protect the genuine public interest, but to protect private vested interests.  For example, they have been issued in at least four inquests, all of which concerned alleged abuse of lethal force:

·         Sean Savage, Mairead Farrell and Daniel McCann;

·         Gervaise McKerr, Eugene Toman and Sean Burns;

·         Seamus McElwaine;

·         John McNeill, Edward Hale and Peter Thompson.

In this last inquest, the coroner refused to accept the validity of the PIIC.  The Crown sought judicial review of this decision, and the High Court ordered him to reconsider the matter.  The families of the deceased appealed against the High Court's decision to the Court of Appeal, with the result that the court upheld the High Court’s decision and reminded the coroner of the narrow ambit of his remit.  More recently, the Chief Constable has threatened to issue PIICs in relation to court proceedings concerning the murders of David McIlwaine and Andrew Robb and in relation to the Billy Wright Inquiry.  The Chief Constable has recently refused to disclose the Stalker/Sampson reports to the Coroner, who is attempting yet again to hold inquests on six men who died in three alleged shoot-to-kill incidents which happened over 25 years ago[12], despite the recent ruling by the House of Lords in the case of Jordan, McCaughey & Ors[13] that coroners should be entitled to see all relevant information.  Public Interest Immunity Certificates should only ever be used where there is a need to safeguard the public interest.  They should never be used to cover-up government wrong-doing or incompetence.

 6.8     In our view, both the Stalker/Sampson reports and the reports of the three Stevens enquiries should be made public.  We understand that the Group has been briefed on the contents of the Stevens 2 report, yet the Finucane family have been denied access to it.

 6.9     In 2006, Girvan J ruled that the Secretary of State for Northern Ireland had failed in his duty of candour to the court during a judicial review concerning the method of appointment of the Victims’ Commissioner.  The judge referred the matter to the Attorney General and listed no fewer than 67 questions which required clarification.[14]  The case opened a window onto the way the Northern Ireland Office actually goes about its business.  Whilst keeping up a pretence of openness and fairness, the NIO had in fact made a highly political and contentious appointment, with little or no regard to the true interests of victims.[15]  As in the case of the Chief Constable, the NIO seems to have no regard to the message its actions send to victims.

 6.10   This culture of secrecy has gone hand-in-hand with extraordinarily high levels of surveillance of members of the public.  We have been astonished, when provided expert testimony in extradition trials in the USA, to find that the police have been able to produce stop-and-search records on individuals going back to the 1970s.  We have also been surprised to see secret MI5 records which have given not only “persons of interest” a P number which enables them to be tracked throughout the record system, but even their very young children, who cannot possibly be suspected of subversive activities of any kind.

 6.11   There have been countless instances where people’s homes, workplaces, cars, and telephones have been bugged, and not always for reasons of national security, as became apparent when it emerged that Gerry Adams’ car was bugged during the peace negotiations.  The “safeguards” against inappropriate surveillance are useless.  Anyone who complains under the provisions of the Regulation of Investigatory Powers Act 2000 (RIPA) soon discovers that they will only be told that they are not entitled to know whether they are under surveillance or not, but, if they are in fact under surveillance, then that surveillance is lawful.  In our view, all current instances of surveillance in Northern Ireland should be reviewed to see whether they are truly justified, and where surveillance or interception is to be used, a case must be made for its use; a proper authorisation procedure must be put in place (which should include refusal of authorisation); and people who suspect they have been wrongly made the subject of such techniques should have access to a meaningful avenue for challenging their use. 

6.12    Evidence came to light in 2006 that detainees’ consultations with their lawyers whilst in the Serious Crime Suite at Antrim Police Station had been the subject of routine covert surveillance over a period of many months.  Similarly, there were concerns that covert surveillance of such consultations in prison had occurred, and also the surveillance of a medical consultation by an independent medical professional, carried out in custody.  A number of potential victims of such surveillance sought a declaration from the PSNI and the Prison Service that their consultations were not the subject of covert surveillance.  The central issue in the case was whether the Applicants’ right to a private consultation, as confirmed in statute and in the Prison Rules, can be overridden by RIPA.  The case raised fundamental questions about the principle of legally privileged information and the protections afforded such information.  In addition, the use of evidence gained by listening to such conversations would be disproportionately advantageous to the prosecution, and undermine the right to a fair trial.  Intercepted communications between suspects and their lawyers should never be admissible as evidence.  Judgment was delivered on 30^th November 2007.  The Lord Chief Justice held that consultations between solicitors and their clients and doctors and their patients could not be monitored unless it was shown to the satisfaction of an independent person (rather than a Deputy Chief Constable) that it was strictly necessary.  He declared that,

“The need for a legal adviser and his client to be secure in the knowledge that what passes between them is and will remain confidential is both obvious and incontestable.”[16]

            Our concern is that the need for such confidentiality was far from obvious to the PSNI.

 6.13   Of particular concern is the fact that MI5 is taking over counter-terrorism intelligence work in Northern Ireland.  Although on the face of it this move will bring Northern Ireland into line with the rest of the United Kingdom, in reality MI5 has been at the heart of collusion in Northern Ireland.  It was an MI5 officer who drafted the Walker Guidelines, which gave Special Branch supremacy over the CID, creating the net effect that gathering intelligence was given priority over saving lives[17].  As the Police Ombudsman has shown, such policies allowed serial killers who were also police informants to literally get away with murder[18].  MI5, despite their apparently remarkably open website, are nameless, faceless and wholly unaccountable.  The former Police Ombudsman’s concern that joint police/MI5 operations will not come under her successor’s scrutiny is shared by many.  The very fact that MI5 is building a huge headquarters in Northern Ireland, far bigger than can conceivably be required for its Northern Ireland work, but is refusing to explain why, only adds to its reputation for non-accountability.  Mechanisms must be put in place for making MI5 truly accountable.

 6.14   The Public Prosecutions Service does not routinely give reasons for its decisions about whether or not to prosecute someone.  However, the Code for Prosecutors clearly states that that detailed reasons may be given to a victim upon request.  A recent inspection by the Criminal Justice Inspectorate (CJI) found that the PPS exercises this discretion unevenly.  It also rightly pointed out that the onus should not be on victims to have to ask for reasons.  The CJI recommended that, save in exceptional circumstances, substantive reasons should be given to all victims.[19]  If implemented, this recommendation will certainly help to make the PPS more transparent.  In the past, some of its decisions have seemed inexplicable, such as the PPS’[20] refusal to follow a recommendation by the Police Ombudsman for the prosecution of two police officers who allegedly committed perjury in order to secure the conviction of John Boyle, who served twelve years in jail and whose conviction was quashed in 2003.  Although John Boyle sought judicial review, and appealed when he lost his case, the courts upheld the PPS’ refusal to give reasons.[21]  This case was one of many that brought both the PPS and the courts into disrepute.

 6.15   It is essential that the courts are rigorously independent and themselves transparent.  Their role, particularly when it comes to judicial review, is crucial in ensuring both the transparency and the propriety of both the government and public bodies.  In the past, the Northern Ireland courts have not always acted as independently as they should.  For example, no self-respecting judge should have presided over the supergrass trials, and there were many dubious convictions[22] and acquittals in the Diplock courts and questionable decisions in cases relating to issues such as access to legal advice and parades.  There are signs that, with a new generation of judges, the courts are fulfilling their functions better.  For instance, the judgment in the case concerning the appointment of the Interim Victims’ Commissioner was a good example of the courts holding the executive to account.  The role of the judiciary in upholding the rule of law is vital in ensuring public confidence in the system of justice.

 6.16   Northern Ireland, then, has a long way to go before its public institutions achieve transparency and accountability.  Until they do so, public confidence in the police, the courts, the administration of justice, the civil service, the rule of law and good governance will continue to be eroded.  That lack of public confidence should not be underestimated.  It runs very deep and it affects all sides of the community.  It is not conducive to moving together into a shared future.

 public inquiries

 7.1     Another benchmark would be the restoration of properly independent public inquiries.  In 2005 the government effectively destroyed the public inquiry by repealing the Tribunals of Inquiry (Evidence) Act 1921 and bringing in the Inquiries Act.  This Act takes away effective control of inquiries from independent judges and places it in the hands of the relevant government Minister, who in many of the cases arising in Northern Ireland is an interested party.  Under the Act, the Minister:

·         decides whether there should be an inquiry

·         sets its terms of reference

·         can amend its terms of reference

·         appoints its members

·         can restrict public access to inquiries

·         can prevent the publication of evidence placed before an inquiry

·         can prevent the publication of the inquiry’s report

·         can suspend or terminate an inquiry, and

·         can withhold the costs of any part of an inquiry which strays beyond the terms of reference set by the Minister.

7.2      The government had many reasons for doing away with public inquiries.  However, one powerful motivation was the quandary the government found itself in when Judge Cory ordained an independent public inquiry into the murder of Patrick Finucane.  While the government was happy enough to institute public inquiries into the other three Northern Ireland cases where Judge Cory made similar recommendations – Billy Wright, Rosemary Nelson and Robert Hamill – they balked at doing the same in Patrick Finucane’s case.  Since the Finucane family refuse to accept an inquiry under the Inquiries Act – quite rightly in our view given the overwhelming evidence of multi-agency collusion in the murder of their loved one – the net result is that they have been denied an inquiry.  Furthermore, the government has broken the promise it set out in the Weston Park Agreement in the following terms:

“In the event that a Public Inquiry is recommended in any case, the relevant Government will implement that recommendation.”[23] 

At the time that promise was made, the only inquiry possible would have been held under the Tribunals of Inquiry (Evidence) Act 1921, and Judge Cory has confirmed that he did indeed have that Act in mind when he made his recommendation.

 7.3     Both the Billy Wright Inquiry and the Robert Hamill Inquiry have been converted from public inquiries to inquiries under the Inquiries Act, at the inquiries’ own request.  This has caused difficulties for both inquiries.  The Secretary of State has already interfered in both inquiries in order to cap fees paid to lawyers for work on the inquiry.  There has also been an unseemly incident in which the Crown Solicitors, presumably with the full knowledge and approval of the NIO, represented six prison officers who sought leave to judicially review a refusal by the Inquiry to narrow its terms of reference.  Their bid failed, but judicial eyebrows were raised as to why lawyers who normally represent the Secretary of State were acting at public expense for those who were seeking to frustrate the Inquiry’s fact-finding capacity.  The six individuals concerned appealed, but apparently lost the backing of the Crown Solicitors, whereupon they abandoned their appeal.  In the Robert Hamill Inquiry, lawyers acting for the victim’s family are seeking to have the terms of reference broadened to include the actions of the Director of Public Prosecutions.  Although the Inquiry has not opposed the family’s application, the Secretary of State is vigorously opposing bringing the DPP under scrutiny.  These difficulties confirm our worst fears about the Inquiries Act providing a charter for governmental interference, not in the public interest, but to the active detriment of the victims.

 7.4     It is quite clear that the judiciary themselves do not like the Inquiries Act.  Lord Saville, who chaired one of the most complex public inquiries in UK legal history, the Bloody Sunday Inquiry (BSI), has expressed grave reservations about the Act.  In a letter to Baroness Ashton at the Department of Constitutional Affairs, dated 26^th January 2005, he voiced particular concern about restriction notices and orders, which relate to public access and disclosure of evidence, saying:

“I take the view that this provision makes a very serious inroad into the independence of any inquiry and is likely to damage or destroy public confidence in the inquiry and its findings, especially in cases where the conduct of the authorities may be in question.” 

He added that such ministerial interference with a judge’s ability to act impartially and independently of government would be unjustifiable.  He further stated that neither he nor his fellow judges on the BSI would be prepared to be appointed as a member of an inquiry that was subject to a provision of that kind.  Lord Norton, who is Professor of Government at the University of Hull, said during parliamentary debate about the Inquiries Bill:

“Given the powers vested in a Minister, one has to wonder who would accept appointment to serve on an inquiry if independence were not guaranteed.”[24]

            In a letter addressed to the American Congress, Judge Cory expressed similar concerns:

“Further, it seems to me that the proposed new Act would make a meaningful inquiry impossible.  The commissions would be working in an impossible situation.  For example, the Minister, the actions of whose ministry was to be reviewed by the public inquiry would have the authority to thwart the efforts of the inquiry at every step.  It really creates an intolerable Alice in Wonderland situation.  There have been references in the press to an international judicial membership in the inquiry.  If the new Act were to become law, I would advise all Canadian judges to decline an appointment in light of the impossible situation they would be facing.  In fact, I cannot contemplate any self respecting Canadian judge accepting an appointment to an inquiry constituted under the new proposed act.”[25]

 7.5       The Joint Committee on Human Rights was also critical of the Bill when it was passing through Parliament:

“We are concerned that, without further safeguards on the face of the Bill, the power to issue restriction notices may impair an inquiry's effectiveness, potentially to an extent which would be in breach of Article 2 ECHR[26], by limiting public accountability and restricting the access of next-of-kin to the inquiry proceedings.”[27]

            They later said:

“At least two of the most controversial conflict-related deaths, that of the solicitor Patrick Finucane; and the loyalist Billy Wright, are to be the subject of inquiries under the Inquiries Act 2005. The Inquiries Act provides a new legal framework for public inquiries. During the passage of the Inquiries Bill, the previous JCHR reported its view that inquiries held under the Bill would be insufficiently independent to satisfy the requirements of Articles 2 and 3 ECHR.  In particular, it was concerned that independence was undermined by ministerial powers:

·         to bring an inquiry to an end before the publication of its report;

·         to issue restriction notices limiting attendance at the inquiry, or limiting the disclosure or publication of evidence or documents provided to the inquiry;

·         to withhold publication of the inquiry's report, unless the duty of publication is specifically allocated to the chair of the inquiry;

·         to withdraw funding from an inquiry which the Minister believes to be operating outside its terms of reference.

There is also concern that the Inquiries Act allows for private hearings, and the Secretary of State for Northern Ireland has indicated that much of the Finucane inquiry would be likely to be held in private, because of national security considerations. We remain to be convinced that in these and other controversial and sensitive cases inquiries held under the Inquiries Act will discharge the UK's responsibilities under UNCAT[28] and the ECHR to hold effective investigations into deaths by use of lethal force in Northern Ireland.”[29]

7.6      The Inquiries Act has in fact been severely underused.  Apart from the Wright and Hamill Inquiries, we can find only three further examples of its use: an outbreak of E.coli food poisoning in Wales; an explosion at a plastics factory in Glasgow; and safety at Derry City Airport.  None of these inquiries was presided over by a judge.  There have been a number of issues where there has been very considerable public concern, such as the deaths of Dodi Fayed and the Princess of Wales, the deaths of young soldiers at Deepcut Barracks, the killing of Jean-Charles de Menezes, and the use of UK airports for extraordinary rendition, and many other calls for public inquiries which have gone unheeded.  Interestingly, many of these campaigns say explicitly that an inquiry under the Inquiries Act would not be acceptable.

7.7      BIRW consider that the Inquiries Act undermines the rule of law, the independence of the judiciary and human rights protection, and therefore fails to provide for effective, independent, impartial or thorough public judicial inquiries into serious human rights violations.  The Act must be repealed and replaced with a mechanism that can provide a truly independent and effective investigation.

 juries, the right to remain silent, and the right to a fair trial

8.1       Those tried under the Terrorism Act in Northern Ireland used to be dealt with in the Diplock courts.  These courts employed lower standards of admissibility of confession evidence than the ordinary courts and sat without a jury.  Both factors militated against a fair trial.  Happily, on 1^st August 2005, the Northern Ireland Office announced that the Diplock courts were to be phased out, as part of the normalisation process.  The Diplock courts were abolished in 2007.  However, the Director of Public Prosecutions retains the power to decide that exceptional cases should be tried without a jury if there is a risk of jurors being intimidated.  This situation is likely to arise less and less frequently in Northern Ireland, as sectarian tension and security concerns diminish.  In our view, the solution to this problem is to provide adequate safeguards for jurors, not to do away with the jury.  In the absence of a jury, a single judge acts as the tribunal of both fact and law.  This is a clear breach of the right to a fair trial.

 8.2     In 2006 the government published a consultation paper on Replacement Arrangements for the Diplock Court

            System.   The Foreword to the consultation paper painted a rosy picture of the Diplock courts:

“For more than thirty years the Diplock Court system has helped to counter the risk of perverse verdicts in trials for offences connected with the Troubles in Northern Ireland.  It has protected jurors from the risk of intimidation; ensured that those charged with such offences receive fair trials; and ensured that justice is seen to be carried out fairly and effectively. The system has become emblematic of the special arrangements that have been necessary to deal with the threat of terrorism in Northern Ireland.”

 8.3      We disagree with each of these propositions.  There is no evidence, and never was any evidence when the Diplock courts were first introduced, that the conflict in Northern Ireland did or would produce perverse verdicts.  Indeed, throughout the conflict the ordinary criminal courts, continued to function perfectly normally, with few if any allegations of perverse verdicts.

 8.4     The Diplock courts did not protect jurors from the risk of intimidation; they removed jurors from the arena altogether, with serious consequences for the administration of the criminal justice system which we discuss below.

 8.5      The Diplock courts certainly did not deliver fair trials.  Instead, they created a twin-track system of justice in which those accused of terrorist offences had fewer safeguards than those tried in ordinary courts wherein the standard of justice a defendant could expect depended on the supposed motivation for the alleged offence.  In our view, it is morally and logically offensive to attempt to distinguish serious crimes such as murder on the basis of the alleged motive of the perpetrator - murder is murder, and is always heinous.  It is equally indefensible, though, to apply different due process rights to alleged perpetrators on such a basis.  To do so is to deny a basic principle that underpins both our unwritten constitution and international human rights law, that of equality before the law.

 8.6     The Diplock courts were also more likely to produce miscarriages of justice.  At least the following convictions in the Diplock courts have been overturned by the Court of Appeal following reference back by the Criminal Cases Review Commission: John Boyle, Billy Gorman, Thomas Green, Richard Hanna, Gerard Magee, Patrick McKinney, Paschall Mulholland, and Anthony O’Doherty.  Grave doubts concern other cases which were referred back by the CCRC but whose appeals were not upheld by the Northern Ireland Court of Appeal, such as Neil Latimer and Christy Walsh.

 8.7     The Diplock courts did not demonstrate fair and effective justice.  They presided over the infamous supergrass trials.  They upheld laws which breached international human rights norms, such as access to legal advice and the privilege against self-incrimination.  They undermined the fundamental common law right to trial by jury.  In short, they were a disgrace and they brought the system of justice into disrepute in Northern Ireland.

 8.8     The Diplock courts were certainly emblematic, but not in the way the Foreword suggests.  They were emblematic of the way even democratic governments like that of the United Kingdom are not above perverting the system of justice for political ends and how even perfectly respectable and well-trained judges are prepared to acquiesce in that process.  History will not look kindly on the Diplock courts.

8.9      BIRW observed many instances in the Diplock courts of cases where the sole or main evidence against a defendant had been an alleged confession which the defendant either denied ever having made or alleged was extracted from him or her by ill-treatment or some other illegal form of coercion.  As with a jury trial, a voir dire was entered upon during which the validity of the confession and the means by which it was obtained were subjected to scrutiny.  However, whereas a jury would be excluded from hearing these arguments, a Diplock judge not only heard them but adjudicated upon them.  Should he decide that a confession was admissible, he had to formally warn himself to disregard anything he heard during the voir dire that would in itself have been inadmissible in the trial proper.  Should he decide that the confession was inadmissible, he had to warn himself to disregard everything he heard during the voir dire, much of which may have been highly prejudicial to the defendant.  Most voir dires in Diplock cases were very lengthy, and completely superseded the trial itself to the point where the voir dire became the forum in which the case was actually decided.

8.10     Many confessions were made in the absence of any access to a lawyer, and this was often cited as a ground, among others, for challenging the admissibility of the confession.  In an ordinary criminal case, the chances of conviction before a jury on the basis of a contested confession made in the absence of legal advice and of any other corroboration would be very low indeed.  In the Diplock courts, convictions on such a basis were a commonplace occurrence.

8.11     The lack of a jury also tends to have a deadening effect on the conduct of the defence.  Barristers often find it necessary in their clients’ best interests to tailor their arguments to the judge in question and either do not stress or do not make certain points in the client’s defence that would otherwise be put to a jury; this then makes it difficult for courts to explore such missing points on appeal.

8.12     The rules allowing the judge to draw adverse inferences from a suspect's silence under police questioning or failure to testify in his own defence make further inroads into the judge's ability to remain an impartial arbiter.  The sight, often observed by us in the Diplock courts, of a judge solemnly describing himself as a judge at one moment and a jury at another would be humorously reminiscent of Alice in Wonderland, were the consequences not so serious for the defendant, for justice, and for respect for the rule of law.  The abrogation of the right to remain silent undermines the privilege against self-incrimination, erodes the presumption of innocence, and distorts the burden of proof so that its shifts from the shoulders of the prosecution to those of the defence.  It has given rise to many miscarriages of justice and brought the law into disrepute.

 8.13   Another benchmark for a shared future not overshadowed by the past would be measures to strengthen the right to a fair trial, including the total abolition of juryless trials and the restoration of the right to remain silent.

 the right to life

9.1       Loss of life has been a constant presence throughout the conflict, which has affected those left behind as deeply as those who were killed.  There are three issues where reform is urgently required if Northern Ireland is to achieve normality and enjoy a shared future: the existence of a shoot-to-kill policy; the defects in the inquest system; and the deployment of “less lethal” weapons such as plastic bullets, tasers, CS gas and PAVA pepper spray.  These are all issues that are central to the right to life.

shoot-to-kill

 9.2     The current use of a ‘shoot-to-kill’ policy by UK police forces is both open to abuse, and has already resulted in tragedy.  Following the fatal shooting of Jean-Charles de Menezes on 22^nd July 2005 by the Metropolitan Police Service (Met), BIRW has researched the use of a ‘shoot-to-kill’ policy by UK police forces, specifically the Met.  The killing of de Menezes was sanctioned by a policy known as Operation Kratos.  This policy is, in the words of the Met, the “operational name for a wide range of tactics used by the MPS (Metropolitan Police Service) to protect the public from the potential threat posed by a suicide bomber”[30].  BIRW used the Freedom of Information Act 2000 to obtain information about Operation Kratos and how it is used by the Met.  Although the Met has consistently denied the existence of a shoot-to-kill policy, a Metropolitan Police Authority memo dated 8 August 2005 obtained by BIRW states, “This is a national policy which was adopted by ACPO centrally and ratified in 2003.  It is known as Operation Kratos.  ‘Shoot-to-kill’ is a vernacular term which the police themselves prefer not to use.”  The Met indicate that a shot to the head, a key component of Operation Kratos, is not intended to kill the suspect but only incapacitate him or her.  Yet a single shot to the head is almost certain to result in death, if not serious brain injury, while multiple shots to the head, as were employed in the case of Jean-Charles de Menezes, will inevitably result in a fatality. 

9.3      The use of lethal force by the UK police has resulted in the deaths of innocent individuals, in direct violation of international human rights standards.  In each of these incidents, none of those killed was armed or posing any threat at the time of his death.  IRA member Diarmuid O’Neill was shot and killed in a Hammersmith hotel in London by police in 1996.  He was unarmed, overcome by CS gas, and trying to surrender when he was killed.  Harry Stanley was shot in 1999 in Hackney, when the table leg he was carrying was assumed by the police to be a sawn-off shot gun.  They also assumed he was Irish; in fact, he was Scottish.  Neil McConville was killed by police in Northern Ireland in April 2003, following a car chase.  False media reports suggested McConville had threatened the police with a gun. There was a gun in his car but no ammunition, and he never attempted to use it.  A report by the Police Ombudsman on this shooting found that the police had adopted a high-risk strategy, although the shooting was justified, in her view.  Her investigation was hampered by the disappearance of intelligence relating to the police operation. [31]  In July 2005, Jean-Charles de Menezes was shot in Stockwell on an underground train by plainclothes police officers who mistook him for a suicide bomber.  Reports that he had failed to stop when challenged by the police, vaulted the ticket barrier at the underground station, and was wearing unusually bulky clothing for the time of year, all turned out to be false.  He was a wholly innocent man[32].  On 1^st November 2007, the Met were found guilty of endangering public safety when they killed Jean-Charles de Menezes in a crowded underground train.  Steven Colwell was shot dead in 2006 by the PSNI in Northern Ireland after the stolen car he was driving apparently failed to stop at a checkpoint.  The case is also being investigated by the Police Ombudsman.  The clear parallels with the case of Neil McConville indicate that lessons have yet to be learnt by the police about the use of lethal force.  It is clear that the use of this policy inevitably leads to the abuse of lethal force, and the deaths of innocent people, contrary to Article 2 of the European Convention on Human Rights, which applies a test of absolutely necessity to the use of force.

 9.4     The shoot-to-kill policy leads to the death of innocent people and should be replaced by a policy of shooting to incapacitate, which should be a method of last resort.

 inquests

 9.5     In the past, the practice and procedure of inquests in Northern Ireland has fallen far short of the standards laid down by the United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.  Professor Tom Luce conducted a ‘Fundamental Review of Inquests’ in 2003; the subsequent draft Coroners Bill, published for consultation in 2006, attempted to address the reforms recommended by this review.  However, the Bill, unlike the Luce review, did not apply to Northern Ireland.  We had concerns that, should this Bill have become law, it would have been applied to Northern Ireland without appropriate consultation.  Equally, an application of this Bill to Northern Ireland would have failed to take into account the legacy of 30 years of conflict and the significance of the deep flaws in the Northern Ireland coronial system.  In the event, the Coroners Bill was dropped from the legislative programme.  While the Northern Ireland Court Service (NICS) has recently made some administrative reforms to the coronial system, this has not gone far enough to provide investigations which are Article 2 compliant and the NICS does not have the power to make the changes necessary to bring this about without any legislative basis.

 9.6     One issue which featured in the case of Jordan, McCaughey & Ors[33], was the nature of the findings which the Northern Ireland Coroner is able to make.  These include only the identity of the deceased and how, when and where s/he died – all information which is usually already known before the inquest is held.  Cases currently proceeding through the coronial system, such as the 2003 murder of Danny McGurk – the inquest into which was held in September 2006 –  have highlighted the limits of a Northern Irish inquest in both the investigation of deaths, and the closure brought to families and the wider community by the inquest process.  In particular, the limits placed on findings, the restricted scope of inquests and the absence of legal aid for families all undermine the coronial system and continue to deny those in Northern Ireland their ECHR Article 2 rights.

 9.7     Legislation should be introduced urgently to reform the inquest system in Northern Ireland in line with the recommendations made by the Luce Review.

 “less lethal” weapons

 9.8     Plastic bullets continue to be deployed by both the police and the army in Northern Ireland.  BIRW is opposed to the deployment of plastic bullets because we regard them as lethal weapons that should have no place in the policing of a democratic society in the twenty-first century.  Although intended as a non-lethal weapon, seventeen people have died as a result of the use of rubber and plastic bullets between 1970 and 2005: 14 of these were caused by plastic bullets.  Nine of the seventeen victims were aged 18 or under, the youngest being 10 years old.  Six of the victims did not die immediately but lingered for between one and fifteen days.  Plastic bullets have also caused very serious injuries and permanent disabilities such as blindness. 

9.9     On 21^st June 2005, surrounded by controversy, the attenuating energy projectile (AEP) was brought in to replace the plastic bullet, following research commissioned by the Northern Ireland Office to search for a less lethal alternative to the plastic bullet, as recommended by the Patten Commission on police reform.  As the Oversight Commissioner whose office was established to oversee the Patten reforms has commented[34], the AEP is not an alternative, but simply a different type of plastic bullet.  The Defence Scientific Advisory Council’s sub-committee on the Medical Implications of Less-Lethal Weapons (DOMILL) has concluded that the risk of an AEP impact to vulnerable areas such as the head, chest or abdomen “will not exceed” that of the previous plastic bullet.  In other words, in these respects, the AEP is no safer.  Further, there was no consultation exercise prior to the introduction of AEPs. 

9.10    Regrettably, AEPs were used within three weeks of their introduction, after an unofficial moratorium on the use of plastic bullets which had lasted for nearly three years.  Twenty-one AEPs were fired on 12^th July 2005 in Ardoyne, and a further eleven on 4^th August 2005 in Woodvale in north Belfast, all of them by the police[35].  A very large number of AEPs were also fired over the period 11^th to 13^th September 2005, during serious rioting following a ruling by the Parades Commission that the Orange Order’s Whiterock parade be re-routed.  Of a total 281 AEPs fired between July and September 2005 by the police, 211, or 75%, hit their mark.  It is not known how many injuries were caused and it is also not known how many persons were hit by an additional 140 AEPs fired by the army.  Guidelines on the use of AEPs provide that they may only be fired in situations of serious public disorder, to reduce the risk of loss of life or serious injury.  Officers are trained to use the belt-buckle area as the point of aim at all ranges, thus avoiding upper body hits.[36]  Unfortunately, this guidance does not avoid the possibility of striking the abdomen or the genitals.  Further, the guidance provides that, unless there is a serious and immediate risk to life, use at under one metre or aiming the weapon to strike a higher part of the body at any range is prohibited.  Yet a range of only one metre is exceptionally close and must increase significantly the potential to cause injury.  The guidelines also specifically recognise the fact that AEPs can cause fatalities[37] and that they can ricochet and thus have the potential to harm others apart from the intended target[38].  In 1998, the United Nations’ Committee against Torture again found “the continued use of plastic bullet rounds as a means of riot control” to be a matter for concern, and recommended their abolition[39].  In 2002, the United Nations’ Committee on the Rights of the Child said;

“The Committee is concerned at the continued use of plastic baton rounds as a means of riot control in Northern Ireland as it causes injuries to children and may jeopardize their lives.”

            It too urged the abolition of plastic bullets.[40]

9.11    The Chief Constable of the PSNI, Sir Hugh Orde, has recently decided to deploy tasers (electric stun guns) in Northern Ireland.  He did so without waiting for the outcome of an Equality Impact Assessment or for the detailed advice issued by the Policing Board’s Human Rights Advisers[41].  Furthermore, he did so even though he knew that the advice would be available within days of his decision, which has yet to be authorised by the Policing Board, the body that oversees the work of the PSNI.  BIRW has grave concerns about the introduction of tasers.  The lack of data on the long-term effects on the body of exposure to electric shocks powerful enough to incapacitate and the known risk of causing heart attacks give rise to significant concern.  Tasers also raise the possibility of violating the prohibition on torture and cruel, inhuman and degrading treatment because, as has been vividly demonstrated in a Panorama documentary[42], they inflict intolerable pain.  Whilst we accept that the use of force will inevitably inflict some pain on its victims, with tasers the infliction of pain is the means of incapacitating people, rather than a side effect of their use.  Furthermore, where other means are used it is possible for the operator to use restraint and to try to avoid inflicting unnecessary pain.  However, with a taser, a high level of pain is inevitable.  To force another human being to act, or refrain from acting, in a particular way by means of the infliction of pain amounts at the very least to cruel or inhuman treatment or punishment, and may very well be torture. 

9.12    Manufacturers of tasers recommend that they should not be fired on anyone with a dysfunctional heart, pregnant women, or small children[43].  This renders them impractical: police officers can have no way of knowing just by looking at someone that s/he has a dysfunctional heart, or has a pacemaker.  Similarly, it is not always possible to tell that a woman is pregnant.  There is also scope for accidental injury to such persons, and to children, especially in crowds.  Tasers can set fire to flammable liquids,[44] including CS spray, which is used by the PSNI.  Regrettably, the petrol bomb is still a weapon of choice among Northern Ireland rioters.  If tasers were to be deployed, the nightmare spectre arises of demonstrators attacking police officers firing tasers with petrol, giving rise to a conflagration.  We fear that both police officers and demonstrators could be seriously hurt in such circumstances.  Elsewhere in the UK, tasers are typically used against disturbed persons wielding weapons.  While we appreciate that such persons need to be restrained before they harm themselves or others, including, of course, police officers, we are concerned that the administration of powerful electric shocks to disturbed persons is a barbaric response which may add to the person’s mental health problems and is reminiscent of the worst aspects of electro convulsive “therapy” applied in the past to the mentally ill.  In two surveys conducted in America on the use of the M26 Advanced Taser[45], over 50% of the persons confronted with the weapon were impaired by alcohol, drugs or mental illness[46].  According to Amnesty International, since 2001, over 150 people have been killed in the USA by tasers.  One person, Brian Loan, who had a heart condition, died in the UK on 14 October 2006 three days after being struck by a taser[47].  On 14^th October 2007, Robert Dziekanski, from Poland, was killed after being shot twice with a taser at Vancouver Airport.  He spoke no English, had never flown before, and had become disoriented after spending ten hours in the secure baggage area vainly waiting to be met by his mother.[48]  Tasers should be banned.

9.13    The Northern Ireland Prison Service (NIPS) is currently deploying PAVA pepper spray in Northern Ireland prisons for a trial period.  We are concerned that arming prison officers with an incapacitant spray carries risks to both prison officers and prisoners and also carries the danger that it may be used as a weapon of first rather than last resort, or as a substitute for better, non-violent, methods of prisoner management. We are also concerned that some violent persons are either mentally ill or mentally handicapped and unfortunately end up in confrontations with police or prison officers because of their violence, instead of receiving the medical treatment they require.  The use of PAVA may well exacerbate the mental condition of such persons, especially those suffering from paranoid delusions.  When PAVA is used as an incapacitant, it is essentially a pepper spray, sprayed into the eyes, and its aim is to incapacitate and/or to obtain compliance by causing acute pain.  For that reason, BIRW is opposed to its use in the same way that we are opposed to the use of tasers.  The use of PAVA raises the prohibition on torture and cruel, inhuman and degrading treatment because it inflicts intolerable pain.  It should not be used in prisons or anywhere else.

9.14    In January 2003, the PSNI were authorised by the Policing Board to introduce the use of CS spray.  BIRW is concerned about the use of CS spray and the injuries that it can cause, especially when used against children, or in confined spaces, or against people with respiratory problems.  In particular, PSNI officers are able to use CS spray within a custody suite, where the effects of such use in a confined space could well be severe, on police officers as well as suspects.  It is also worrying that CS spray is used in alcohol-related incidents where individuals may well be more vulnerable.  The high levels of use on drunk individuals point to a need to find a less lethal alternative for controlling violence in such a situation.  Changes also need to be made in situations where the time for the decontamination of a prisoner upon whom CS spray had been used is cut short.  Where the decontamination of individuals is compromised, officers involved in handling the prisoner may be at an increased risk of contamination.  Further, when CS spray was first introduced, it was agreed that the Police Ombudsman would investigate and report on the appropriateness of each use.  This provided the PSNI with a useful oversight mechanism, particularly in cases where the CS spray was used incorrectly.  However, this procedure has now changed: the Ombudsman now only investigates the use of CS spray where complaints are raised.  In common with tasers, the use of CS spray amounts at the very least to cruel or inhuman treatment or punishment, and may very well be torture.  CS Spray has been implicated in at least two deaths in the UK.  Ibrahima Sey died on 16^th March 1996 in Ilford after being sprayed with CS gas while his hands were handcuffed behind his back.  He was later left face down for at least 15 minutes.  He was mentally ill.[49]  On 31^st May 1998 26-year-old Mark Bell, who had severe mental health problems, died in Cleethorpes after being overcome by CS spray, even though he was offering no resistance to the police[50].  In light of all these concerns, BIRW is opposed to the deployment of CS spray.

 9.15   Much of the debate about “less lethal” force in Northern Ireland is generated against the background of its being the only routinely armed police service in the UK.  While we recognise that some progress has been made towards disarming the PSNI, we would like to see swifter progress towards its becoming a routinely unarmed police service.  Similarly, greater measures are needed to take out of circulation the very large number of guns among the civilian population.  Every existing gun licence should be reviewed and there should be tighter controls on the availability, sale, and storage of weapons.

 EQUALITY

 10.1   Although the duty on public bodies to promote equality of opportunity and good relations[51] has great potential for tackling discrimination in Northern Ireland, in our experience the Equality Impact Assessments provided for in the legislation are the exception rather than the rule.  Many public bodies carry out consultation exercises in relation to the duty, so many in fact that we cannot respond to them all for lack of time and resources.  However, we always try to respond to those which are particularly relevant to our work, and we have been concerned to find that public bodies often rule out areas where an Equality Impact Assessment would seem to be indicated.  A prime example would be the PSNI’s initial failure to carry out an assessment in respect of the introduction of tasers, despite the obvious possibility of disproportionate impact on children, pregnant women, and people with heart disease.

 10.2   We have also notice an almost complete lack of Equality Impact Assessments at the highest levels of policy-making.  It seems to us that the divisions and inequalities in Northern Ireland require that virtually every decision that involves the distribution or spending of public money and resources ought to be subjected automatically to an Equality Impact Assessment, but we are unable to recall a single example where this has been done.

 10.3   It seems to us that, while legislation to outlaw discrimination and promote equality is vital, more needs to be done to celebrate diversity in Northern Ireland.  The demography of Northern Ireland is changing, especially in terms of immigration from eastern Europe.  If everyone in Northern Ireland if to move forward together towards a better future, then Northern Ireland must adapt to its newfound multiculturalism.  The sectarian chasm that has been allowed to develop in Northern Ireland cannot be dealt with by papering over the cracks.  It needs to be acknowledged, as does the tendency of sectarianism to spill over into racism and other forms of prejudice.  Although Stages 3 and 4 of the core curriculum for schools has begun to address this issue, much more could be done through the education system to assist in the process, as we explain below.  Despite the fact that the Office of the First Minister and Deputy First Minister has responsibility for equality and human rights, diversity is not listed among their roles.  We recommend that diversity is added to their responsibilities, with a specific task force within their office dedicated to promoting diversity and multi-culturalism.

 education

 11.1   The vast majority of school pupils in Northern Ireland attend segregated schools, dependent upon their religion.  The following table[52] shows what percentage of Protestant children attend Protestant schools and how many Catholic children attend Catholic schools.