17 December 1998 Edition
What has Dublin done for justice?
In the wake of the Good Friday Agreement, RoisÃn de Rossa outlines how the human rights record of the 26 Counties has got worse
It has been a bad year for justice. An amendment to the Offences Against the State Act has ended the right to silence, extended police powers to search and detain from 48 to 72 hours, given powers to the courts to confiscate property where munitions are found, and introduced a new offence of `directing terrorism'.
Furthermore the Minister for Justice, John O'Donoghue has introduced mandatory sentencing and supergrass trials. He has in practice extended the jurisdiction of the Special Criminal Court, and has deported refugees without due process of law.
It is ironic in the extreme that all this should have happened in the year when the Government signed up to the Good Friday Agreement which envisaged the dismantling of emergency powers and the introduction of a range of legislation in both jurisdictions to strengthen the protection of human rights and establish equality and an end to discrimination.
Under the Agreement the Dublin government undertook to review the Offences Against the State Act (OASA) and with it, the Special Criminal Court, to incorporate the European Convention on Human Rights into domestic law and to establish a Human Rights Commission. None of this has been done.
Equally shamefully, Ireland remains almost alone among so-called democratic states in failing to ratify two of the most fundamental of UN human rights treaties: the Convention Against Torture and the Convention for the Elimination of Racial Discrimination.
Worse again, the Equal Status Act of 1996 is still in limbo having been struck out by the Supreme Court, and the Refugee Act of 1996 has still not been implemented. The Government refused to include a clause in the Employment Equality Bill, which passed just after the Agreement, to prohibit political discrimination, and retained a clause allowing discrimination in certain church-run institutions.
Of course not all of this is new or happened just this year. The amendments to the OASA came in the wake of Omagh, but before that we had the hysteria around an alleged, and non-existent, crime wave, which set a climate for changes to the bail laws, and the Drugs Trafficking Act of 1996, which introduced seven day detention and powers to seize property.
In fact, widespread fear and hatred of drug dealers has already enabled massive encroachments on human and civil rights, in legislation, and in the practice of the courts and the police. Anything goes when it comes to drug dealers, and with it of course goes protection of human rights and the rule of law.
In the wake of Omagh, the Government rushed in emergency measures to amend the Offences Against the State Act. Previously when an accused person denied membership of an illegal organisation, a Garda Chief Superintendent needed evidence to corroborate his belief (remember the IRA posters in the case of Don O'Leary in 1987 or the childish rhyme about the IRA in the case of Paul Walsh in 1994?).
The amendment to the OASA now means that the accused's silence can be used as corroborative evidence of a senior police officer's statement of belief of membership of an illegal organisation. The policeman does not have to know the accused personally, or adduce evidence. Nor is he required to divulge the source of his information.
As the Irish Council for Civil Liberties points out, ``widely used, it could amount to jailing people on suspicion. Furthermore, without video and audio-taping of interviews and in the absence of solicitors during questioning, the difficulty in proving that the accused did in fact answer relevant questions will be insurmountable.'' In layman's language it means that it is not possible to prove innocence.
Interestingly enough, in the only challenge to the new legislation so far, the court held that a person arrested was ``in a special difficulty, as opposed to persons arrested under other acts, in trying to ascertain what information must be volunteered''. The court decided that the notes of interviews should be available to the solicitor during consultation with his client. The notes had not been made available and the arrested person was subsequently released without charge.
Denial of the right to silence is inconsistent with what are considered to be inalienable rights under the law. They include the right to a fair trial, to be presumed innocent until proven guilty and the right not to be compelled to incriminate oneself. It may be, as it has been in the past, that these inalienable rights will only be upheld in Strasbourg.
The European Court of Human Rights in Strasbourg came to a landmark decision in February 1996. The court ruled that it was a breach of human rights to deny legal advice where inferences could be drawn from silence during questioning.
This court ruling in Strasbourg was given in the case of John `Anto' Murray, who was arrested in 1991, and was convicted along with a number of other republicans including Danny Morrison, of involvement in the abduction of IRA informer, Sandy Lynch.
Anto Murray, who was refused access to solicitors, remained silent throughout RUC questioning despite being told that the courts could draw `adverse inferences' if he refused to answer questions. The European court declared that Anto Murray's human rights had been violated by being refused a solicitor.
In the light of this judgement the British Home Secretary, Jack Straw, has been obliged to change the law, as announced in this year's Queen's speech, governing the rights of people in custody to stay silent. In advance of this legislation he is issuing new guidance to prosecutors and police to ensure the changes take practical effect immediately.
Where does all this leave Mr O'Donoghue and his amended OASA 1998? Many people would say it leaves things just as they were - that an accused has the European Court in Strasbourg to rely on to uphold his human rights in general, and the right to silence in particular.
But the amended OASA does not stop at taking away the right to silence. The amendment added two new offences to the statute book. One allows for the confiscation of houses and farms in the event of arms or explosives being found there. ``It is,'' as Michael Farrell of the Irish Council for Civil Liberties points out, ``an extraordinary departure from the rule of law and seems almost like a form of reprisal.'' It is almost inconceivable that a confiscation order by the courts could withstand a challenge from entirely innocent relatives who would suffer `punishment', still less a challenge to the Supreme Court based on the right to property enshrined in the constitution.
Mimicking British law O'Donoghue also grasped the opportunity to introduce another new offence, that of `directing terrorism'. As the ICCL points out ``this offence is extremely vague and would seem like a `catch-all' charge to convict people against whom no substantive evidence can be found.''
The UN in July 1994 condemned the continued existence of the Special Criminal Court as `unjustifiable'. Far from abolition, which was to be expected as a result of the Good Friday Agreement, its use has been greatly extended in dealing with common law offences. The most glaring example of this has been the recent Ward trial, where evidence from a supergrass, Charlie Bowden, who was an accomplice and whom the judge agreed was an `inveterate liar', was accepted by the court as grounds for conviction, despite considerable inducements being offered to Bowden in return for his evidence.
What justification was there to try Ward in a non-jury court? Why does the Government and courts want to introduce supergrass trials after the previous disastrous experience in this country?
The DPP has unfettered discretion over who is to go to trial in the Special Criminal Court. He is not required to explain his decisions to anyone. The DPP decided to select three out of 12 people, all charged with the same offence - the unlawful killing of drug addict, Josie Dwyer in 1996 - and to send these three, separately from their fellow accused, for trial at the Special Criminal Court. What happened to equality before the law, or the right to a fair trial?
Nothing more clearly shows the present government's contempt for human rights than its treatment of refugees and asylum seekers. The Refugee Act, which was passed two years ago, has still not been implemented. Judgement on applications for refugee status continue behind closed doors of the Department of Justice, with no pretence of fair, independent or transparent procedures of adjudication. They are carried out in an adversarial manner against the background of a minister who declared it his opinion that 90% of applications are `bogus'. Asylum seekers are not entitled to legal aid sufficient to cover requirements, or translation or research facilities.
They have been lured to Garda stations, often on a ruse, only to be locked up prior to immediate deportation.
The Minister by November had signed 230 deportation orders this year. Last year he signed eight. The ICCL states that it is aware of asylum seekers who have been imprisoned and tortured in their own countries and whose application to stay has been rejected.
Meanwhile hysteria around a supposed `flood of refugees taking our jobs, our houses' has been created, despite the fact that refugees in total represent only one fifth of the number of Irish people who emigrate. In this atmosphere, racist attacks have occurred quite regularly. There has been a succession of persecutions, for example denying asylum seekers a driving licence, and cancelling those already issued. Refugees continue to be deprived of their basic human right to work or to education whilst awaiting adjudication.
In this climate of suppression of human rights the courts and the police have received little criticism. A young woman was sentenced to nine years, reduced to six on appeal, for robbing a handbag. Two men were sent to prison for industrial action in defence of the right to pay tax and come out of the black economy. A six month prison sentence on a Garda who killed a man in a hit-and-run accident which he then attempted to cover up, was quashed on appeal.
The conditions in jail remain atrocious despite widespread publicity on overcrowding, absence of facilities and a strong protest that jail is not the place to send drug addicts. Young children, often unconvicted, continue to be remanded to jails in the absence of `secure' and suitable accommodation.
There is still no independent board to deal with complaints against the Garda, which continue to be investigated by the Garda themselves. In their annual report of 1,291 complaints filed against the Gardai, only one resulted in a Garda being found guilty of a serious breach of discipline.
A Garda shot Ronan McLaughlin dead, at point blank range, though no shots had been fired at the Gardai. There was scarcely a whimper of protest.
At the other end of the scale investigations into Ansbacher accounts, payments to politicians, 80,000 offshore accounts, set up for the precise purpose of tax evasion, corruption in dealing with planning applications, all lie dormant in a sea of secrecy and legal challenge to the appointed Tribunals' rights to even inquire. One law for the rich and another for the poor.
It has been a bad year for justice. An amendment to the Offences Against the State Act has ended the right to silence, extended police powers to search and detain from 48 to 72 hours, given powers to the courts to confiscate property where munitions are found, and introduced a new offence of `directing terrorism'.
Furthermore the Minister for Justice, John O'Donoghue has introduced mandatory sentencing and supergrass trials. He has in practice extended the jurisdiction of the Special Criminal Court, and has deported refugees without due process of law.
It is ironic in the extreme that all this should have happened in the year when the Government signed up to the Good Friday Agreement which envisaged the dismantling of emergency powers and the introduction of a range of legislation in both jurisdictions to strengthen the protection of human rights and establish equality and an end to discrimination.
Under the Agreement the Dublin government undertook to review the Offences Against the State Act (OASA) and with it, the Special Criminal Court, to incorporate the European Convention on Human Rights into domestic law and to establish a Human Rights Commission. None of this has been done.
Equally shamefully, Ireland remains almost alone among so-called democratic states in failing to ratify two of the most fundamental of UN human rights treaties: the Convention Against Torture and the Convention for the Elimination of Racial Discrimination.
Worse again, the Equal Status Act of 1996 is still in limbo having been struck out by the Supreme Court, and the Refugee Act of 1996 has still not been implemented. The Government refused to include a clause in the Employment Equality Bill, which passed just after the Agreement, to prohibit political discrimination, and retained a clause allowing discrimination in certain church-run institutions.
Of course not all of this is new or happened just this year. The amendments to the OASA came in the wake of Omagh, but before that we had the hysteria around an alleged, and non-existent, crime wave, which set a climate for changes to the bail laws, and the Drugs Trafficking Act of 1996, which introduced seven day detention and powers to seize property.
In fact, widespread fear and hatred of drug dealers has already enabled massive encroachments on human and civil rights, in legislation, and in the practice of the courts and the police. Anything goes when it comes to drug dealers, and with it of course goes protection of human rights and the rule of law.
In the wake of Omagh, the Government rushed in emergency measures to amend the Offences Against the State Act. Previously when an accused person denied membership of an illegal organisation, a Garda Chief Superintendent needed evidence to corroborate his belief (remember the IRA posters in the case of Don O'Leary in 1987 or the childish rhyme about the IRA in the case of Paul Walsh in 1994?).
The amendment to the OASA now means that the accused's silence can be used as corroborative evidence of a senior police officer's statement of belief of membership of an illegal organisation. The policeman does not have to know the accused personally, or adduce evidence. Nor is he required to divulge the source of his information.
As the Irish Council for Civil Liberties points out, ``widely used, it could amount to jailing people on suspicion. Furthermore, without video and audio-taping of interviews and in the absence of solicitors during questioning, the difficulty in proving that the accused did in fact answer relevant questions will be insurmountable.'' In layman's language it means that it is not possible to prove innocence.
Interestingly enough, in the only challenge to the new legislation so far, the court held that a person arrested was ``in a special difficulty, as opposed to persons arrested under other acts, in trying to ascertain what information must be volunteered''. The court decided that the notes of interviews should be available to the solicitor during consultation with his client. The notes had not been made available and the arrested person was subsequently released without charge.
Denial of the right to silence is inconsistent with what are considered to be inalienable rights under the law. They include the right to a fair trial, to be presumed innocent until proven guilty and the right not to be compelled to incriminate oneself. It may be, as it has been in the past, that these inalienable rights will only be upheld in Strasbourg.
The European Court of Human Rights in Strasbourg came to a landmark decision in February 1996. The court ruled that it was a breach of human rights to deny legal advice where inferences could be drawn from silence during questioning.
This court ruling in Strasbourg was given in the case of John `Anto' Murray, who was arrested in 1991, and was convicted along with a number of other republicans including Danny Morrison, of involvement in the abduction of IRA informer, Sandy Lynch.
Anto Murray, who was refused access to solicitors, remained silent throughout RUC questioning despite being told that the courts could draw `adverse inferences' if he refused to answer questions. The European court declared that Anto Murray's human rights had been violated by being refused a solicitor.
In the light of this judgement the British Home Secretary, Jack Straw, has been obliged to change the law, as announced in this year's Queen's speech, governing the rights of people in custody to stay silent. In advance of this legislation he is issuing new guidance to prosecutors and police to ensure the changes take practical effect immediately.
Where does all this leave Mr O'Donoghue and his amended OASA 1998? Many people would say it leaves things just as they were - that an accused has the European Court in Strasbourg to rely on to uphold his human rights in general, and the right to silence in particular.
But the amended OASA does not stop at taking away the right to silence. The amendment added two new offences to the statute book. One allows for the confiscation of houses and farms in the event of arms or explosives being found there. ``It is,'' as Michael Farrell of the Irish Council for Civil Liberties points out, ``an extraordinary departure from the rule of law and seems almost like a form of reprisal.'' It is almost inconceivable that a confiscation order by the courts could withstand a challenge from entirely innocent relatives who would suffer `punishment', still less a challenge to the Supreme Court based on the right to property enshrined in the constitution.
Mimicking British law O'Donoghue also grasped the opportunity to introduce another new offence, that of `directing terrorism'. As the ICCL points out ``this offence is extremely vague and would seem like a `catch-all' charge to convict people against whom no substantive evidence can be found.''
The UN in July 1994 condemned the continued existence of the Special Criminal Court as `unjustifiable'. Far from abolition, which was to be expected as a result of the Good Friday Agreement, its use has been greatly extended in dealing with common law offences. The most glaring example of this has been the recent Ward trial, where evidence from a supergrass, Charlie Bowden, who was an accomplice and whom the judge agreed was an `inveterate liar', was accepted by the court as grounds for conviction, despite considerable inducements being offered to Bowden in return for his evidence.
What justification was there to try Ward in a non-jury court? Why does the Government and courts want to introduce supergrass trials after the previous disastrous experience in this country?
The DPP has unfettered discretion over who is to go to trial in the Special Criminal Court. He is not required to explain his decisions to anyone. The DPP decided to select three out of 12 people, all charged with the same offence - the unlawful killing of drug addict, Josie Dwyer in 1996 - and to send these three, separately from their fellow accused, for trial at the Special Criminal Court. What happened to equality before the law, or the right to a fair trial?
Nothing more clearly shows the present government's contempt for human rights than its treatment of refugees and asylum seekers. The Refugee Act, which was passed two years ago, has still not been implemented. Judgement on applications for refugee status continue behind closed doors of the Department of Justice, with no pretence of fair, independent or transparent procedures of adjudication. They are carried out in an adversarial manner against the background of a minister who declared it his opinion that 90% of applications are `bogus'. Asylum seekers are not entitled to legal aid sufficient to cover requirements, or translation or research facilities.
They have been lured to Garda stations, often on a ruse, only to be locked up prior to immediate deportation.
The Minister by November had signed 230 deportation orders this year. Last year he signed eight. The ICCL states that it is aware of asylum seekers who have been imprisoned and tortured in their own countries and whose application to stay has been rejected.
Meanwhile hysteria around a supposed `flood of refugees taking our jobs, our houses' has been created, despite the fact that refugees in total represent only one fifth of the number of Irish people who emigrate. In this atmosphere, racist attacks have occurred quite regularly. There has been a succession of persecutions, for example denying asylum seekers a driving licence, and cancelling those already issued. Refugees continue to be deprived of their basic human right to work or to education whilst awaiting adjudication.
In this climate of suppression of human rights the courts and the police have received little criticism. A young woman was sentenced to nine years, reduced to six on appeal, for robbing a handbag. Two men were sent to prison for industrial action in defence of the right to pay tax and come out of the black economy. A six month prison sentence on a Garda who killed a man in a hit-and-run accident which he then attempted to cover up, was quashed on appeal.
The conditions in jail remain atrocious despite widespread publicity on overcrowding, absence of facilities and a strong protest that jail is not the place to send drug addicts. Young children, often unconvicted, continue to be remanded to jails in the absence of `secure' and suitable accommodation.
There is still no independent board to deal with complaints against the Garda, which continue to be investigated by the Garda themselves. In their annual report of 1,291 complaints filed against the Gardai, only one resulted in a Garda being found guilty of a serious breach of discipline.
A Garda shot Ronan McLaughlin dead, at point blank range, though no shots had been fired at the Gardai. There was scarcely a whimper of protest.
At the other end of the scale investigations into Ansbacher accounts, payments to politicians, 80,000 offshore accounts, set up for the precise purpose of tax evasion, corruption in dealing with planning applications, all lie dormant in a sea of secrecy and legal challenge to the appointed Tribunals' rights to even inquire. One law for the rich and another for the poor.