Director's Report April/May 2000

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April/May 2000

In mid May the Police (Northern Ireland) Bill, which is intended to implement the Patten recommendations for the reform of the police service in Northern Ireland, was published. Unfortunately, and as many feared would happen, the Bill waters down some key elements of Patten. It fatally deprives the proposed new Policing Board of authority, allowing the Chief Constable to appeal to the Secretary of State, who can overrule the Board. The old Police Authority's lack of control over the Chief Constable and policing matters was a major factor in the RUC's lack of accountability. The Bill seems set to perpetuate that mistake. The Bill also weakens the powers of the new Police Ombudsman to investigate complaints against the police. The new Ombudsman will not be able, as Patten proposed, to initiate inquiries herself, or to enquire into police policies and practices. Moreover, the Bill seeks to fetter the Ombudsman's existing powers, by putting a time limit curbing her ability to investigate past cases, and giving her no automatic right to information she needs to carry out her work. The Bill has also altered the new oath proposed by Patten to exclude a requirement to "respect the traditions and beliefs" of people, and only requires new recruits to take the oath, rather than all serving officers, as Patten recommended. Meanwhile, the Oversight Commissioner recommended by Patten as a vital tool to the implementation of his proposals has yet to be appointed, while the RUC is driving ahead with its own implementation plan, which will make it very difficult for the Oversight Commissioner to influence the direction or pace of change. These developments are strongly suggestive of political concessions having been made to the unionists, who are opposed to radical reform of the RUC. However, the Patten report was accepted by nationalists only with reluctance, and is viewed by them as the absolute minimum required if the new police service is to be acceptable to them. These flaws in the Bill are potentially fatal to the fragile peace process, especially in light of the recent IRA concessions on decommissioning.

There has been a flurry of arrests in recent weeks. Former soldier Ian Thompson, arrested on 9th March on arms charges, was questioned by Deputy Chief Constable Colin Port, who is investigating Rosemary Nelson's murder, but not charged with any offence relating to it. On 3rd May loyalist Philip McClean and his girlfriend were arrested and questioned by Colin Port. Both were released without charge on 5th May. On 2nd November last year, prominent dissident loyalists Clifford Peebles and Jim McGookin Fisher were arrested in Dungannon. Two grenades and a pipe bomb were found in their car. On 10th May Clifford Peebles was arrested in Maghaberry prison, where he was on remand, and taken to Gough Barracks for interview by Colin Port.

On 21st May I travelled to Belfast to meet members of Rosemary's family, members of the Rosemary Nelson Campaign, and other human rights groups in order to review the latest developments in the case. The next day, I met Colin Port, together with CAJ and Amnesty International, to discuss the police investigation.

At the beginning of May it was announced that the DPP intends to prosecute Billy Stobie for the murder of Patrick Finucane and also for the murder of Alan Lambert, a young Protestant killed in mistake for a Catholic in a sectarian murder in November 1987. It was reported that the DPP made this decision - which surprised many, who expected the charges against Stobie to be dropped - after coming under pressure from John Stevens. The Stevens police investigation seems to have widened its scope to include murders unconnected to the murder of Patrick Finucane. Stobie claims to have been an RUC Special Branch informer, and to have told his handlers enough information for them to have prevented the murder of Patrick Finucane. The only certain outcome of this baffling series of events is that it gives the government an excuse to delay yet longer making a decision on whether to hold an independent inquiry into the Finucane murder. On 5th May I met the Northern Ireland Human Rights Commission together with the Finucane family. The following week, the Commission publicly announced its support for an independent public inquiry, and highlighted the fact that British Irish RIGHTS WATCH has been waiting since February 1999 for any response from the government to its devastating report on this and other murders.

On 6th April, Dato' Param Cumaraswamy, the UN's Special Rapporteur on the independence of judges and lawyers, called for a third time for an independent inquiry into the murder of Patrick Fincuane. He also expressed concerns about the investigation into Rosemary Nelson's murder. The Irish Ambassador, Anne Anderson, echoed his concerns. The UK was also criticised at the same session of the Human Rights Commission by Abid Hussain, the Special Rapporteur on freedom of expression and belief. He expressed concern that the emergency laws had hindered freedom of expression and in particular highlighted the case of Ed Moloney. He also called for the publication of the Stalker/Sampson and Stevens reports and an end to the use of plastic bullets.

British Irish RIGHTS WATCH has joined Liberty and the Irish Council for Civil Liberties in an application to the European Court of Human Rights under Articles 8 (privacy) and 13 (lack of an effective remedy). Our complaint is that our telephones were tapped between 1990 and 1997 via the Capenhurst listening tower. We say that confidential calls concerning our clients, calls in which we gave legal advice, and calls between us as NGOs were intercepted. There was, apparently, no warrant issued against any of our organisations, but our calls were monitored by virtue of a general warrant that we cannot challenge in the domestic courts. We regard this as a test case on behalf of the millions of ordinary British and Irish citizens whose calls were tapped in the name of national security, in a gross invasion of their privacy. We are grateful to journalist Duncan Campbell and to Channel 4 television for exposing this scandalous situation.

On 4th April the European Court of Human Rights ruled four important cases admissible. The cases concerned the deaths of Gervase McKerr, whose death was one of six that led to the Stalker/Sampson investigation, Patrick Shanaghan, whose death allegedly involved collusion, the deaths of eight people at Loughgall in an army ambush, and Pearse Jordan, killed by the RUC in west Belfast while unarmed. The Court was particularly concerned about the mechanisms in place to investigate killings by agents of the state or where collusion is alleged. Reports by British Irish RIGHTS WATCH on the deaths of Gervase McKerr and Patrick Shanaghan formed part of the papers in the cases.

The Bloody Sunday Inquiry resumed its hearings on 8th May. Weekly reports by our independent observer, Catherine McKenna, are now available on our website. Unusually, the tribunal has opted to have its own Counsel, Christopher Clarke QC, embark on an extremely lengthy opening statement. He has already been on his feet for six weeks, and the end is not yet in sight. So far, he has presented a lucid précis of the formidable research he has evidently undertaken into the evidence that was before the Widgery tribunal and that which the BSI has uncovered by its own efforts. However, he has alarmed the victims and their lawyers, as well as independent observers, by reciting as fact many matters that are highly contentious. He has given the impression that the BSI has already reached a number of preliminary conclusions, and his assurances that these are not set in stone have not allayed concerns that they may colour the Inquiry's deliberations.

On 8th May I travelled to Dundalk to meet the relatives of those who died and some of those who were injured in the bombing the town in 1975. The Irish government has announced, without any consultation with those affected, that the private Commission of Inquiry by former Lord Chief Justice Hamilton will also look at the Dundalk bombings. Unlike the victims of the Dublin and Monaghan bombings the previous year, the Dundalk victims are just beginning to research their own case, and I was able to advise them on how to go about it.

We have recently responded to the draft report by the International Council on Human Rights, Ends & Means: Human rights approaches to armed groups. The paper raises the vexed question of the differences between humanitarian law, which governs the behaviour of participants in armed conflicts, and human rights law, which is binding on governments and largely ignored by paramilitary groups.

We have also responded to a consultation document from the SDLP in which they advocate increasing prison sentences when a crime can be proved to have been motivated by hatred. We have opposed these proposals. British Irish RIGHTS WATCH has long argued against the emergency laws in Northern Ireland. One of our principal objections has been that they create a twin-track system of justice in which suspects and defendants have fewer rights under emergency laws than they do under the ordinary law because of the supposed motivation for their acts. 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 perpetrators on such a basis. To do so is to deny a basic principle that underpins both the unwritten constitution and international human rights law, that of equality before the law. By the same token, we believe that increasing sentences on the basis of the perpetrator's motivation would be wrong.

On 13th and 14th April I participated in a symposium organised by the Queen's University Law School on the theme of Transitional Justice: Reforming the Institutions of Justice in a Post-conflict Period. The event was hosted by the International Institute for the Sociology of Law in Oñati in the Basque country. It afforded a useful opportunity to formulate initial reactions to the recently-published review of the criminal justice system in Northern Ireland. We are glad to see that the review team, like Patten, placed human rights at the heart of its agenda, but we were disappointed that they did not call for the repeal of the law that allows inferences to be drawn against defendants if they fail to answer police questions or to testify in their own defence. We are also sorry that they did not call for the abolition of the Diplock courts. We welcome the review team's recognition of the intimidation experienced by some defence lawyers, but are disappointed that they did not back the UN's call for an independent inquiry into this problem.

On 25th May I had the pleasure of hearing a lecture by Professor David Kretzmer, a member of the United Nations Human Rights Committee, at Magill University in Derry. Professor Kretzmer urged his audience to study the workings of the Committee and to offer constructive criticism of its decisions and working methods. The Republic of Ireland comes before the Committee in July, and we have made a detailed submission concerning violations of:

¨ the right to a fair trial in relation to the Offences Against the State Act and the Special Criminal Court;
¨ the right to life in the shootings of John Morris and Rónán MacLochlainn, the Dublin and Monaghan bombings, the Dundalk bombing, and the case of Seamus Ludlow; and
¨ freedom from torture and inhuman treatment in relation to the ill-treatment of those arrested in the wake of Garda Jerry McCabe in Limerick, where our researcher was very nearly arrested.

I will be on holiday in France from 8th to 26th June inclusive. For this reason, there will be no June report. Our administrative assistant, Emma Gill, will be on hand in the office during my absence.

Jane Winter,
Director,
31st May 2000

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