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3 September 1998 Edition

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Draconian laws under fire

by Sean O'Tuama

A wave of condemnation from a number of legal and human rights groups has met the British government's proposed `emergency' legislation to reintroduce internment by the back door.

The Solicitors Criminal Bar Association in Belfast last week said this ``hurried, reactive legislation'' had no place ``in a democratic society''. In particular they were concerned at giving increased power to the RUC ``To allow a suspect to be convicted on the word of a police officer, coupled with the refusal to co-operate with the officer, means that a defendant is no longer presumed innocent but must in fact prove his innocence.''

The Association's concern that these measures were open to abuse was echoed by the human rights group, the Pat Finucane Centre in Derry. A spokesperson said, ``there is no evidence that such legislation has been effective in the past. There is, however, considerable evidence that repressive legislation has been open to abuse and has led to miscarriages of justice.'' He added that an integral part of the Good Friday document was ``respect for human rights by both the British and Irish states.''

Gerry O hEara, Sinn Féin Northern Chairperson, confirmed this last point when saying on Monday that the proposed measures were ``contradictory to the spirit and intent of the Good Friday Agreement.''

The Prevention of Terrorism Act Research and Welfare Association pointed out that 97% of people held under the PTA provisions similar to this emergency legislation were found to be innocent of any offence, highlighting the potential for abuse within these new laws, further illustrated by the numerous attempts by RUC to recruit informers in recent months and the case of the three West Belfast men currently suing the force after they were wrongfully arrested for the murder of Belfast drug dealer, Bobbie Dougan, in February.

Undaunted by these civil liberties concerns, a spokesperson for the British Premier said on Tuesday that these new laws would also include the right to seize the assets, including the home, of anyone convicted under this `emergency' legislation.

However Mo Mowlam seemed unaware of any of these concerns as she launched a review of the criminal justice system in the Six Counties last Friday. The review, to be completed by next autumn, was a provision of the Good Friday document and its remit is to; deliver a fair and impartial system of justice, be responsive to community concerns and have the confidence of all parts of the community. Ignoring the impending `Draconian' laws, Mowlam declared there would be ``consultation'' on the review, adding, ``on behalf of the government, I would encourage organisations, agencies, groups and individuals to participate in the important debate which this paper is intended to stimulate.''

Only after pressure from backbench Labour MPs did the British government say on Tuesday that no one would be convicted solely on the word of an RUC man. ``Other'' unspecified evidence would also be required.

 

TD slams new repressive laws




We carry here an edited version of Sinn Féin TD Caoimhghín O Caoláin's speech in Leinster House on the Offences Against the State (Amendment) Act 1998.

The measures before us today run contrary to the spirit and the letter of the Good Friday Agreement. One of the main reasons for nationalist and republican support for the Agreement is the centrality within it of human rights and civil liberties. Those central elements of the Agreement are being undermined as drastic measures are rushed through the Oireachtas, and through the British Houses of Parliament.

In the Agreement the Irish government committed itself to a ``widespread review'' of repressive legislation and to ``take steps to further strengthen the protection of human rights in its jurisdiction''. The measures before us today are backward steps.

In advancing this Act the Irish Government has facilitated and encouraged the British government in the passage of legislation in Westminster which will be even more draconian in its effects. The RUC is a discredited force which enjoys no allegiance among the nationalist community in the Six Counties. It has been censured by a succession of human rights authorities up to and including the United Nations Human Rights Commission. Into the hands of this force is to be placed the power to imprison people on the basis of the word of senior officers. And this potentially disastrous development has come because the British government are modelling their laws on those to be passed in this House.

More than one member of this House has taken a special interest in the case of Elaine Moore. This legislation and the British legislation opens the way for many more such cases.

This Offences Against the State Act of 1998 reinforces legislation which was already repugnant to civil liberties. The Offences Against the State Acts 1939 to 1985 have been widely abused. The powers they give to the gardai have helped to turn the Garda Special Branch into a political police force which has systematically harassed citizens engaged in open, legal and democratic political activity, including this Deputy, and citizens with no political involvement of any kind.

This needs to be borne in mind when we hear guarantees that these strengthened draconian powers will be used selectively.

With one stroke Section 2 of this Bill attacks the right to silence and reinforces the provision for the conviction of a person for membership of an unlawful organisation on the basis of the opinion of a senior garda. The exercise of the right to silence can now be used to corroborate the word of the garda. The exercise of the right to silence can mean that the court can draw inferences from failure to mention any fact later relied on by the defence. In effect the right to silence is removed.

Section 4 of the Bill is surely one of the most drastic pieces of legislation ever brought before the Dáil. It widens the definition of conduct giving rise to suspicion of membership to include association.

This is guilt by association. What use will be made of this provision in the days to come after the passage of this Bill? Are people to be arrested and charged on the basis of their friendship or acquaintance with others?

A person may be convicted on the dubious basis of the uncorroborated word of a garda and then the `association' of others with him or her will cause a ripple effect of new convictions. Another effect may be the unwillingness of people to come forward as alibi witnesses for fear they may be charged under this provision.

The provision for the confiscation of property has been described by the Irish Council for Civil Liberties as ``an extraordinary departure from the existing law and seems almost like a form of reprisal''. Like other sections of this Bill it seems highly likely that it will be constitutionally challenged and may well be struck down.

One of the most worrying aspects of this Bill is its creation of British-style conspiracy laws. These are vaguely defined catch-all offences. The most serious is modelled on a British law and is the offence of ``directing at any level'' the activities of an unlawful organisation.

For this nebulous offence, which seems designed to convict people against whom no substantive evidence exists, the penalty is life imprisonment.

Similarly vague is the offence of possessing ``any article'' which could give rise to ``reasonable suspicion'' that the article is to be used for offences under various Acts mainly to do with explosives. Are fertiliser bags and shovels now to be used to secure convictions? The offence of ``withholding information'' is also vague as is the offence of collecting, recording or possessing information. These conspiracy laws open up whole new avenues of possible abuse.

The extension of the period of detention for questioning to three days, when taken with the provisions regarding the right to silence, create a scenario where innocent people could be wrongly convicted. Detained in a Garda station for three days the suspect is allowed access to a solicitor but not during interrogation. The person's silence will be legally admissable. So will their failure to mention to the gardai a fact which they later rely on during their trial. With no legal requirement for interviews to be video and audio-taped, and in the absence of a solicitor, it will be almost impossible to prove that a person did in fact answer relevant questions. It is easy to see how innocent people, confused and pressurised in an alien environment, and unsure of their rights, could implicate themselves. The danger of this occurring in the present climate is especially acute.TD slams new repressive laws



We carry here an edited version of Sinn Féin TD Caoimhghín O Caoláin's speech in Leinster House on the Offences Against the State (Amendment) Act 1998.

The measures before us today run contrary to the spirit and the letter of the Good Friday Agreement. One of the main reasons for nationalist and republican support for the Agreement is the centrality within it of human rights and civil liberties. Those central elements of the Agreement are being undermined as drastic measures are rushed through the Oireachtas, and through the British Houses of Parliament.

In the Agreement the Irish government committed itself to a ``widespread review'' of repressive legislation and to ``take steps to further strengthen the protection of human rights in its jurisdiction''. The measures before us today are backward steps.

In advancing this Act the Irish Government has facilitated and encouraged the British government in the passage of legislation in Westminster which will be even more draconian in its effects. The RUC is a discredited force which enjoys no allegiance among the nationalist community in the Six Counties. It has been censured by a succession of human rights authorities up to and including the United Nations Human Rights Commission. Into the hands of this force is to be placed the power to imprison people on the basis of the word of senior officers. And this potentially disastrous development has come because the British government are modelling their laws on those to be passed in this House.

More than one member of this House has taken a special interest in the case of Elaine Moore. This legislation and the British legislation opens the way for many more such cases.

This Offences Against the State Act of 1998 reinforces legislation which was already repugnant to civil liberties. The Offences Against the State Acts 1939 to 1985 have been widely abused. The powers they give to the gardai have helped to turn the Garda Special Branch into a political police force which has systematically harassed citizens engaged in open, legal and democratic political activity, including this Deputy, and citizens with no political involvement of any kind.

This needs to be borne in mind when we hear guarantees that these strengthened draconian powers will be used selectively.

With one stroke Section 2 of this Bill attacks the right to silence and reinforces the provision for the conviction of a person for membership of an unlawful organisation on the basis of the opinion of a senior garda. The exercise of the right to silence can now be used to corroborate the word of the garda. The exercise of the right to silence can mean that the court can draw inferences from failure to mention any fact later relied on by the defence. In effect the right to silence is removed.

Section 4 of the Bill is surely one of the most drastic pieces of legislation ever brought before the Dáil. It widens the definition of conduct giving rise to suspicion of membership to include association.

This is guilt by association. What use will be made of this provision in the days to come after the passage of this Bill? Are people to be arrested and charged on the basis of their friendship or acquaintance with others?

A person may be convicted on the dubious basis of the uncorroborated word of a garda and then the `association' of others with him or her will cause a ripple effect of new convictions. Another effect may be the unwillingness of people to come forward as alibi witnesses for fear they may be charged under this provision.

The provision for the confiscation of property has been described by the Irish Council for Civil Liberties as ``an extraordinary departure from the existing law and seems almost like a form of reprisal''. Like other sections of this Bill it seems highly likely that it will be constitutionally challenged and may well be struck down.

One of the most worrying aspects of this Bill is its creation of British-style conspiracy laws. These are vaguely defined catch-all offences. The most serious is modelled on a British law and is the offence of ``directing at any level'' the activities of an unlawful organisation.

For this nebulous offence, which seems designed to convict people against whom no substantive evidence exists, the penalty is life imprisonment.

Similarly vague is the offence of possessing ``any article'' which could give rise to ``reasonable suspicion'' that the article is to be used for offences under various Acts mainly to do with explosives. Are fertiliser bags and shovels now to be used to secure convictions? The offence of ``withholding information'' is also vague as is the offence of collecting, recording or possessing information. These conspiracy laws open up whole new avenues of possible abuse.

The extension of the period of detention for questioning to three days, when taken with the provisions regarding the right to silence, create a scenario where innocent people could be wrongly convicted. Detained in a Garda station for three days the suspect is allowed access to a solicitor but not during interrogation. The person's silence will be legally admissable. So will their failure to mention to the gardai a fact which they later rely on during their trial. With no legal requirement for interviews to be video and audio-taped, and in the absence of a solicitor, it will be almost impossible to prove that a person did in fact answer relevant questions. It is easy to see how innocent people, confused and pressurised in an alien environment, and unsure of their rights, could implicate themselves. The danger of this occurring in the present climate is especially acute.

 

When will they ever learn?



By Sean Marlow

I know that the new repressive legislation has already been well covered in An Phoblacht but I make no apologies for returning to it because the effects will be with us for a long, long time.

Almost everyone agrees that the horrendous bomb in Omagh, which killed 28 people and injured another 200, was intended to undermine the Good Friday Agreement. The foolish, knee-jerk response of the Dublin and London governments is in serious danger of fulfilling the bombers' objective. An important part of the Agreement was the commitment to get rid of repressive legislation and usher in a new era of respect for human rights. Clearly, the new legislation is directly contrary to that commitment.

The short-sighted stupidity of the governments' reaction may be seen in its potential to revive the dwindling fortunes of the small group of militarists who carried out the Omagh bombing. At the moment these people are totally discredited, especially in the republican community.

But the application of such Draconian laws, with the probability of many miscarriages of justice, may provide a lifeline for them.

Indeed, miscarriages of justice are a virtual certainty, just as they were when similar reactive legislation led to the wrongful imprisonment of the Birmingham Six, Guildford Four, Maguire Seven, Sallins Four and many, many others whom the police said they believed were guilty. Only this time around it is even worse. The discredited RUC are to be given the effective power to jail anyone on the word of a senior officer.

As anyone who is familiar with the North is aware, senior RUC officers are not renowned for telling the truth - in fact, they tell blatant lies when it suits them. Take just a couple of cases from the hundreds of the past 30 years:

1. When Nora McCabe was killed by an RUC plastic bullet as she was going to the shop at the corner of her street, the RUC Commander for West Belfast, James Crutchley, admitting that he gave the order to fire, claimed there was a serious riot going on at the time. Fortunately a Canadian TV crew were recording at the time of Nora's killing. The footage, shown later on Channel 4, showed that there was no rioting at all when Nora McCabe was killed. Not only was Crutchley not charged with murder or manslaughter, he was not even disciplined and was later promoted to Assistant Chief Constable.

2. When John Downes was killed with an RUC plastic bullet outside the Sinn Fein centre in Andersonstown, RUC Deputy Chief Constable Michael McAtamney claimed at a (damage limitation) press conference that Downes was hit by a ricochet and was not deliberately targeted. Later that evening, TV news showed a fat RUC man aiming at Downes and hitting him in the chest from a range of about four metres. Again McAtamney was never charged or disciplined.

3. Only last month the RUC was forced, through lack of evidence, to drop spurious charges against three West Belfast men, which it used as an excuse to have Sinn Fein ejected from the peace talks earlier this year.

Incredibly this is the bunch of liars that are to be given the power to point to you, you and you and say ``I believe you're a member of an illegal organisation''. Then it's up to you to prove your innocence. You can't challenge the source of the RUC's ``belief'' as they will claim privilege for their ``source'' (which may be malicious, mistaken or non-existent). So you are left with the option of getting a member of the illegal organisation to get up in court to deny that you are a member - hardly bloody likely! The result is that there will be no real trial and anyone can be interned for 10 years on the word of the proven liars of the RUC.

Almost as bad is the use of the accused's omission in challenging media reports naming her or him as evidence. This means that any potential accused would have to constantly monitor every national, local and foreign newspaper, radio station and TV programme, many of which are now polluted with so-called ``security correspondents'' who peddle yarns from ``intelligence sources''. Remember Colin Wallace, a British Army prtess officer who admitted making up all sorts of false stories about individuals for these gullible ``reporters''.

It is for these reasons, among several others, that a very sensible statement urging both governments not to allow the bombers to succeed in their objective of undermining the Good Friday Agreement and to compound the original tragedy by destroying even more innocent lives was issued by five prominent Human Rights groups including Amnesty International, of which, I am proud to say, my cousin Jolene Marlow who died in the Omagh bombing, was an active member.

GUE-NGL-new-Jan-2106

An Phoblacht
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