Studie- en lnformatiecentrum Mensenrechten Netherlands Institute of Human Rights Institut Neerlandais des Droits de l'Homme The Diplock Courts in Northern Ireland: A Fair Trial? An analysis of the law, based on a study commissioned by Amnesty International by Douwe Korff SIM Special No. 3 Studie- en • e ourts 10 Mensenrechten orthem Ire a •• Netherlands Institute of Hu~an Rights lnstitut Neerlandais des Drotts de air Trial? l'Homme lnstituto Holandes de Derechos Human<lS Stichting Studie- en An analysis of the law. hased on a study commissioned lnfot matiecentrum Mensenrechten hy Amnesty International Nieuwegracht 94, 3512 LX UTRECI-IT, hy Douwe Korff The Netherlands, tel. 030 - 33 15 14 telex: 70779 SIM NL Cable Adress: SIMCABLE Bank: RABO-Bank Utrecht No. 39.45.75.555 Chairman Foundation: Professor P. van Dijk Director Institute: Mr. J.G.H. Thoolen The following analysis of the non-jury (" Diplock") couns in Northern Ireland was prepared in 1982 by Dutch lawyer, Douwe Korff, as a commissioned study for Amnesty International. ~ -' The text reproduced here has been shortened slightly (for reasons of economy). '' Amnesty International submitted the full text of the study in 19M3 to an official re­ view, then in progress, of the legislation and procedures governing such courts, as background to a recommendation that the organization's concerns he taken into ac­ count. SIM is grateful to Amnesty International for making the text available for independ­ ent publication. All rights for further reproduction are vested in Amnesty Interna­ tional. Table of contents Preface 7 Background note 9 List of references 14 Introduction 17 ' PART I The Pre-Triallnquiries and Proceedings 19 Chapter l The Legal Basis for Arrest and Detention for Questioning 20 (i) Ordinary Powers of Arrest 20 (ii) Common Law Essentials for a Valid Arrest 21 ( iii) Detention for Questioning 21 . J (iv) Special Powers of Arrest and Detention 22 I (v) Legal Constraints and Judicial Control (in re 24 Martin Lynch) I ' (vi) Special Powers of Arrest and Detention by ; the Army 2~ !' ' I (vii) Conclusions 30 Chapter 2 Interrogation 32 ' : (i) Questioning in Ordinary Circumstances: 32 • - the framework 32 1 ! - the rules 33 'i ' (ii) Questioning of Terrorist Suspects: 36 • - the framework 36 . I t • - the rules 36 Chapter 9 Summary of Conclusions 99 (iii) Supervision 41 Footnotes 101 (iv) Conclusions 45 Appendix 1 103 ·. I" 47 ! Chapter 3 From Police Interrogation to Trial j" Appendix 2 113 'i PART 11 The "Diplock" Courts 51 •t t' f Chapter 4 The "Admissibility" of Statements (Allegedly) Made to • the Police as Evidence in Court 53 'j i l ; (i) "Admissibility" in Ordinary Law 55 J ' •! ~ 54 •. (ii) "Admissibility" in the "Diplock" Courts • i (iii) Conclusions 60 Chapter 5 The "Weighing" of the Evidence 63 (i) Judge and Jury 63 ( ii) Admissibility and Reliability 65 (iii) The Nature of the Evidence 66 (iv) Conclusions 69 > Chapter 6 Other Adjudications 71 (i) Appeals 71 (ii) Complaints against the Police 74 (iii) Conclusions 75 PART Ill The Assessment 77 Chapter 7 The Crucial Issue 77 (i) Reliability 77 (ii) The Royal Commission on Criminal Procedure 79 Chapter 8 International Nonns 93 Preface Since I Y73. special. non-Jury courts have been m operaiHm m Northern Ire­ land to try persons suspected of tcrronst oftenn·s; the so-called .. Diplock .. courts. named after the JUdge who headed the ( 'omm1ssion which. in I Y72 recommt·ndcd that such courts he set up. In I YX2. Amnesty International (AI) had the law and prot·cdurl~S attend­ ing trials in the .. Diplock" courts analysed by a Dutch lawyer. Douwe Korff*. The orgamzation submitted this analysis to the UK government in Decem­ her I YX2 and to a government-appointed in4uiry in August I YIU. The anal­ ysis is hne made public in full for the first time. SIM has added to the study a brief Background Note concerning the emergency in Northern Ireland generally. and also providing information on certain developments since the writing oft he analysis. An external AI Circu­ lar of February I YX4, setting out the organization's continuing wncerns re­ garding the criminal justice system in Northern Ireland. is attached as an ap­ pendix. The AI analysis describes the impact of "emergency legislation" on the administr.1tion of justice in Northern Ireland in respect of terrorist suspects. having regard to both pre-trial proceedings and the trial stage. lt does so by comparing the special provisions introduced by this •· emergency legislation" and their practice with the ordinary rules and practice concerning criminal proceedings. Its author gives a detailed description of both systems, based upon legislation, case-law and legal opinion. Special attention is paid to tht• broad powers of arrest and detention by the police and the army; the rules pertaining to the 4uestioning of suspects; pre-trial investigation of com­ plaints; the trial itself in the "Diplock courts" as compared with ordinary (ju­ ry-) proceedings; the admissibility and weighing of evidence; and the relia­ bility of confessions. On the basis of this analysis the assessment is made that the effect of the "emergency legislation" on the administration of criminal justict~ in Nor­ thern Ireland means in many respects a departure from certain minimum re- 4uiremcnts of the English system of criminal justice as identified, inter alia, by the Royal Commission on Criminal Procedure, and in some respects a de­ parture from international standards for a fair trial; the latter especially where the practice of the prc-trial investigations and the impact thereof on the attitude of the judges is concerned, as well as the freedom from self-incri­ mination and the presumption of innocence. Dissemination ofthe analysis and its conclusions may be of great use, both to those who arc, in one way or another, involved in the administration of cri­ minal justice in Northern Ireland, and to all those who share our concern for a fair administration of justice all over the world. Professor P. van Dijk 7 Background note N.H. This note ts provttit'd ny SIM for the convemenee oft he general reader. at whom the analysts prepared for Amnesty International was not aimed. It is not part of that analysts, nor can 11 ne regarded as reflecting that organiza- • • • !ton S VIeWs. Emergency legislation has neen a permanent feature of the law in Nor­ thern Ireland from lis foundation; it was agatn invoked ny the Northern Irish government to introduce internment in 1971. The Hritish government, hav­ ing suspemkd the Northern Irish government m March 1972, to replace it with "direct rule" from London, retained internment. However. in September 197 2 it appointed a commission, chat red by Lord Diplock, to consider "what arrangements for the administration of Justice in Northern Ireland could he made in order to deal more effectively with terrorist organizations hy hringing to hook, otherwise than hy internment hy the Executive, individuals involved tn terror­ ist activitie:; ... " ( Diplock Report, para I) The Diplock Commission treated its task as urgent. Having met for the first time on 20 October 1972, its report could already be presented to Par­ liament in December of that year. Yet it dealt with a vast topic, covering all aspects of the criminal justice process from arrest, through detention and in­ terrogation; bail; the mode and conduct of the trial; the rules of evidence; to special measures to deal with young offenders. Based on the recommend­ ations of the commission, the Northern Ireland (Emergency Provisions) Act 1973 (consolidated, with some amendments, in the present 1978 version of the Act) created a, de facto, parallel system of criminal justice applicable to terrorism-related offences. Persons suspected of involvement in terrorism can be arrested on less clear suspicion than can persons suspected of ordi­ nary crimes; they can be detained longer and subjected to much more force­ ful questioning; they are less likely to be granted bail; have less opportunity to challenge the prosecution case in the pre-trial stage; and, most important, are denied their right to a jury trial and tried instead in special courts before a single judge, with different rules of evidence, in particular as regards confes­ sions obtained as a result of "oppressive" questioning. At the same time, le­ gal safeguards in the system are reduced, as are judicial supervision and con­ trol over the manner in which the security forces use their new, or extended, powers. These are the matters addressed in the attached analysis. Lord Diplock, in making his recommendations had envisaged the non-ju­ ry courts to operate auxilliary to internment, and this was the initial situation. (see the Summery of Conclusions in the Diplock Report, para 7, under a-e). After the "Diplock" courts had been operating for just over a year, in 1974, 9 j the ( iardmer ( 'ommlttee rL·vil'wed "in the context of civtlliherties and hu­ willing to testify in court. After detention without trial ended. people against man fl!(ht<' the antl-terron..,t measure.., m Northern Ireland. The committee whom the security forces had ohtained such evidence, hut no evidence which ~:on eluded that detentton without trial (as internment had heen re-named) could he produced in court, could not, in the words of Lord Diplock 's com­ could not remain a.., a long-term poli~.:y; although the ~.:ommittee did not feel mission, he "hrought to hook"- unless they confessed during interrogation. ahlc to recommend the immediate abolition of detention without trial. as a Thus, the ending of detention without trial, much though it was to he wel­ result of Its t:onstderation. detention without trial was phased out 111 thl' comed in itself, hrought ahout a situation in which the ohtaining of confes­ cour'ic of I (}7'5 and has not been used since.