|
|
|
OCTOBER 2003
law on state killings clarified
This month saw a landmark decision by the House of Lords, R v Secretary of State for the Home Department ex parte Amin. This case has definitively incorporated into domestic law the procedural principles underlying Article 2 of the European Convention on Human Rights, which protects the right to life, in particular the need for an effective investigation. Prior to Amin, the British courts needed only to “have regard to” decisions of the European Court of Human Rights under the terms of the Human Rights Act. Now, the principles set out in Jordan v UK and the three other cases decided at the same time (Kelly & Ors, Shanaghan, and McKerr) are firmly incorporated into domestic law by means of a binding precedent. The House of Lords has also extended these principles to cases where agents of the state were not directly responsible for a death, and where there was no allegation of collusion, but where agents of the state had created a situation that was, in the words of Lord Slynn, "an incident waiting to happen". Amin concerned the murder of a young Asian, Zahid Mubarek, by a racist thug who was housed in the same cell despite his record. There are obvious parallels with the murder of LVF leader Billy Wright in the Maze prison by INLA in 1997, where the authorities placed the opposing factions in the same H block. However, the case also has implications for many other cases where the state has acted negligently or failed to heed warnings, not least the other cases investigated by Judge Peter Cory. Even if he does not recommend public inquiries into any of those cases, Amin may well mean that they and many others will be entitled to an inquiry anyway. Congratulations to the lawyers who took this case, and to all those who helped to pave the way for this decision, taking case after case to the European Court of Human Rights.
cory – the leaks begin
Contrary to some expectations, the Irish were first off the mark in leaking the outcome of Judge Cory’s investigations into the deaths of Lord Justice and Lady Gibson and RUC officers Harry Breen and Bob Buchanan. It would appear that the judge has recommended a public inquiry into the deaths of the two police officers, but Irish officials are riven over the issue of whether to name the Garda Síochána officer who allegedly colluded with the IRA over the murder. On Sunday 2nd November, the British leaked that Prime Minister Tony Blair will make a statement in Parliament about Judge Cory’s four UK reports – on Pat Finucane, Rosemary Nelson, Robert Hamill and Billy Wright – on 1st December, once the Northern Ireland Assembly elections are safely over.
SAFETY AT MAGHABERRY PRISON
For reasons that are not entirely clear, the Northern Ireland Affairs Committee in Parliament has decided to enquire into the government’s decision to introduce a degree of segregation between paramilitary prisoners at Maghaberry prison. We have made a submission to this enquiry, in which we have said that BIRW 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. 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, many of whom have come under attack in recent weeks by dissidents who want to return to the days when the inmates had control of the prison. We have 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 murders of Billy Wright and David Keys graphically illustrated, segregation did not provide a safe environment for prisoners. 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.
POLICE RECRUITMENT
We have also made a submission to the Northern Ireland Office concerning the renewal of the 50:50 Catholic: Protestant/other recruitment policy. In our submission we have examined a number of obstacles to Catholic recruitment to the PSNI and have pointed out that, while there has been a small improvement in the numbers of Catholics joining the service, there is still a very long way to go. As important as recruitment is retention, if the PSNI is ever to achieve Patten’s goal of a police service that reflects the whole of the Northern Ireland community and can deliver effective policing to all sections of that community. Those who want to see the 50:50 recruitment policy abandoned can have only one aim: the frustration of that aspiration.
reform of the inquest system
Despite the fact that we were left off the consultation list, we have sent a submission to the Northern Ireland Courts Service concerning the implementation of the reforms recommended by the fundamental review of the inquest system (the Luce review). In it we have compared Luce to the benchmarks laid down in the Amin case. By and large, the Luce proposals satisfy those standards, but they are particularly weak on the questions of delay and disclosure. They do nothing to inject promptness into the system, and nor do they adequately deal with obligation on the state to provide a satisfactory and convincing explanation where they have exclusive knowledge about the death. If past experience is anything to go by, the government will not necessarily give effect to all Luce’s recommendations. We are concerned that a piecemeal approach could significantly water down the impact of the Luce Review. However, it is our view that, as a public authority bound by the Human Rights Act 1998, the NICS is duty bound to do everything in its power to make the inquest system compliant with Article 2, including urging the government to make any necessary changes in the law to enable them to achieve that end.
michAel donnelly
As often happens, one case leads to another. As well as trying to assist Donal de Roiste to clear his name, we have recently written to the Irish government concerning another former soldier, Michael Donnelly. He was dismissed from the Irish army in 1975 on “security grounds”. The army acknowledges that the evidence against him was circumstantial and insufficient to ground disciplinary action. Michael Donnelly has never been charged with any criminal offence arising out of these allegations. He requested a court martial but this request was denied. The procedures invoked against Michael Donnelly were altogether unsatisfactory. He was deprived of sleep and food, denied legal advice, denied an opportunity to fully rebut the allegations against him and discharged without ever having received a fair hearing.
helping our American cousins
This month we have, at the request of the American Embassy here in London, briefed them in relation to the forthcoming Country Report on human rights in the United Kingdom and also briefed the incoming Desk Officer for Ireland and Northern Ireland at the State Department. While the USA’s own record on human rights leaves much to be desired, their continued interest in the human rights situation in Northern Ireland remains a positive contribution.
BLOODY SUNDAY INQUIRY
The Bloody Sunday Inquiry is now reaching its final stages. It has returned to Derry were it will hear the last few witnesses, including IRA witnesses who have come forward. Our observer, Russell Miller, continues to post his excellent weekly reports on our website for those who want to follow the proceedings but are unable to attend. The tribunal intends to conclude hearing from witnesses by the end of the year. It will then reconvene next year for closing statements and will report by the end of 2004.
WELCOME TO SUE AND ALINA
I am glad to welcome Sue Chipperfield from the Institute of Commonwealth Studies and Alina Potts from Boston as interns. Sue is helping us to investigate the death of eleven year old Stephen McConomy, killed by a soldier’s plastic bullet in Derry in 1982. Alina is helping us to compose a chronology of the Bloody Sunday Inquiry.
Jane Winter,
Director,
31st October 2003.
For Peace Justice & Human Rights
