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13 January 2000 Edition

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Criminal injustice

The Six-County criminal justice system's legacy is one of bias, bigotry and failure. An Phoblacht's LAURA FRIEL examines the system's failings and questions whether the criminal justice review body set up under the Good Friday Agreement is up to the job.

One morning in July 1981, West Belfast housewife Nora McCabe was fatally injured by a plastic bullet fired from an RUC Land Rover. The RUC denied firing a plastic bullet in the street in which Nora had been struck and claimed that they were under attack by petrol bombers.

The office of the DPP has seen its role as supporting the British/unionist status quo and it has been vigorous in pursuit of that goal
Despite the fact that film footage, inadvertently taken by a visiting Canadian television crew, exposed the RUC patrol's claims as a tissue of lies, the DPP announced there would be no prosecutions of RUC officers for either killing Nora McCabe or for committing perjury at the inquest.

In the early hours of a Sunday in April 1997, Portadown Catholic Robert Hamill was fatally injured by a loyalist mob in view of an armed RUC mobile patrol. Despite warnings of an impending sectarian attack and pleas for help by Hamill's companions during the attack, RUC officers made no attempt to intervene.

Initial RUC claims that the patrol attempted to intervene but came under attack were totally discredited as was the reference to the clash of two rival factions. In October 1999, the DPP announced the members of the RUC patrol would not face prosecution.

Last week's decision not to prosecute the RUC officers who threatened Rosemary Nelson's life is the most recent in a long history of anti nationalist actions by the Director of Public Prosecutions. But the office of the DPP hasn't failed in its duty; it's much worst than that, the DPP has seen its role as supporting the British/Unionist status quo and it has been vigorous in pursuit of that goal.

The whole ethos of the courts is anti-nationalist. Every time a nationalist enters a court in the Six Counties, he or she is confronted with symbols of British royalty and sovereignty
Almost every decision taken by the office of the DPP in the last 30 years has reflected the agenda of its political masters. On the rare occasion the DPP's office has stepped outside the fold, it has been swiftly brought back into line. An early case exposed the myth of the political independence of the DPP.

Unlike the vast majority of state killings, the DPP decided to pursue prosecutions of RUC officers involved in five of the six deaths investigated by the Stalker inquiry into shoot to kill. The RUC officers were acquitted but evidence was uncovered which, in the view of the DPP, justified bringing charges of perverting the course of justice.

However in a statement to the British House of Commons, the then Attorney General, Patrick Mayhew, announced that he had brought a number of matters to the attention of the DPP including matters relating to the public interest and national security and the Director had in the lights of this decided ``it would not be proper to institute criminal proceedings''.

There have been over 350 nationalists killed by the British crown forces, many in disputed circumstances. Fewer than 30 cases have been taken up by the DPP and only a handful were successfully convicted. Even when a conviction has been secured, as in the case of paratrooper Lee Clegg, political lobbying has ensured either minimal punishment or the overturning of conviction on appeal.

The DPP was a key player in the cover-up which ensued after the role of British Military Intelligence agent Brian Nelson was inadvertently exposed by the Stevens' inquiry into Crown forces collusion with loyalist death squads. In a last minute deal, the DPP dropped the most serious charges against Nelson for guilty pleas on lesser charges. A trial which had threatened to expose the British army's role in loyalist killings was effectively curtailed.

Most recently, the role of the DPP has come under scrutiny in relation to the prosecution of William Stobie, UDA quartermaster and RUC Special Branch informer. During a court hearing it was revealed that almost all the evidence against Stobie was contained in RUC interview notes taken in 1990. Stobie has admitted supplying and disposing of the weapons used in the murder of Belfast solicitor Pat Finucane.

The DPP suggested there had been insufficient evidence to prosecute Stobie in 1990, but the only substantive difference between then and now is an admission by Stobie that he knew Finucane was the target. As Sunday Tribune journalist Ed Moloney pointed out, knowing the identity of the victim has never been decisive in murder convictions.

The DPP's refusal to prosecute agents of the state has been compounded by the vigour with which opponents and perceived opponents of the state have been pursued. Thousands of nationalists have faced prosecution on the basis of uncorroborated confession evidence, often obtained through the brutal interrogation methods of the RUC.

The willingness of the DPP to pursue prosecutions was compounded by the willingness of a judiciary, often presiding over non jury courts, to convict. The vast majority of convictions in non-jury Diplock courts were based solely on so-called confessions. At one stage, the conviction rate reached an astonishing 90%. No wonder nationalists referred to the system as conveyor belt justice.

Any part of the system could have called a halt to the whole farce. If the British government had fulfilled its international human rights obligations, if the DPP had refused to pursue cases or had the courts refused to convict cases where the torture and ill treatment of detainees were evident, RUC brutality might have been curtailed overnight. They did not and thousands of nationalists suffered as a consequence.

``Every major human rights agency in the world, from Amnesty International to Helsinki Watch, has accused Britain of torture, summary execution and extensive violations of human rights. London holds the distinction of having been found guilty before the European Court of Human Rights more often than any other signatory since 1950, `` says Sinn Féin.

It is against this backdrop that next month, nationalists will assess the publication of a review of the criminal justice system in the Six Counties. The review was commissioned as part of the Good Friday Agreement, but unlike the Patten Commission on policing, this review has been low key.

Headed only by an NIO official, the composition of the review lacks an international dimension and has little human rights expertise. The limited remit of the review has also attracted criticism. The specific exclusion of emergency legislation has widely been identified as a fundamental flaw.

As the Committee for the Administration of Justice (CAJ) points out: ``A key part of the criminal justice system in Northern Ireland over the course of the last 30 years is the history of emergency law and procedure.''

In a consultative paper issued by the review team, the then British Secretary of State, Mo Mowlam, concluded that the criminal justice system had ``served Northern Ireland well'' over the last 30 years. It has certainly served the British government well.

``Successive governments made such inroads into the safeguards normally associated with a criminal justice system that the system effectively lost its most important aspect, its independence from government,'' says the CAJ.

The injustice endured by northern nationalists since partition has been criminal. It remains to be seen if the review of the criminal justice system commissioned by the Agreement will provide the impetus for the kind of fundamental change required
In a submission, Sinn Féin argues that matters outside the remit of the review which need to be addressed include not only emergency powers, but also killings by state agencies, the use of plastic bullets, the murders of Pat Finucane and Rosemary Nelson, collusion, torture and ill treatment during interrogation, curfews, and the operation of the RUC and British army.

``The Six-County state has never been able to afford its citizens the justice and equality fundamental to a peaceful and democratic society,'' says Sinn Féin. ``The consequence has been a cycle of repression, conflict and resistance. Unionists cannot be solely held responsible for this. Britain's policy created a sectarian state. The excesses of the British state in defence of the northern statelet have been well documented.''

The CAJ points out that the role of the judiciary will become even more significant under the terms of the Good Friday Agreement. With the introduction of the Human Rights Act and the new Bill of Rights envisaged by the Agreement, the courts will be able to strike down Assembly legislation if it conflicts with these standards.

``The judiciary in a modern democratic state should act as the most significant protector of the rights of the citizen against the violation by the state,'' says Sinn Féin. ``Instead, in the north of Ireland they have generally given the stamp of legal approval to widespread violations of the rights of all citizens, but particularly nationalists. The northern judiciary are in the eyes of the nationalist community as discredited and unacceptable as the RUC.''

The judiciary in the north, from county court upwards, is currently made up of 24 men and one recently appointed woman. Catholics are significantly under represented within the judiciary and there are no nationalists. Other groups such as the Chinese, Traveller and the Disabled communities, have no representation either.

At least four of the most senior judges, including the current Chief Justice, have previously acted as advisors to the Crown. This ``creates at the very least a perception of bias, particularly given the fact that as senior crown counsel they have often acted in the most controversial of cases'', says the CAJ.

But it's not just the personnel; the whole ethos of the courts is anti-nationalist. Every time a nationalist enters a court in the Six Counties, he or she is confronted with symbols of British royalty and sovereignty.

Sinn Fein has called for a neutral environment. The courts should cease to be known as the ``royal'' courts. Royal insignia should be removed and the trappings of unionism associated with the opening of court terms should be removed.

Individuals should no longer be summoned to the court in the name of the British Queen. Senior barristers should be known as Senior Counsel not Queen's Counsel and oaths of allegiance to British sovereignty should not be required for officers of the court.

Sinn Féin points out the sectarian and racist ethos of the loyal orders. ``It is inconceivable that members of the orders could impartially and in a politically neutral manner administer the criminal justice system.''

Sinn Féin advocates the establishment of an all-Ireland constitutional court which would be the supreme court for the 32 counties. The dependence of Irish jurisprudence on two routes, towards the Supreme Court in the south and the British House of Lords in the north, is illogical.

The party says that: ``In case after case, the House of Lords sided with the military and political authorities. It widened the scope of the British military in terms of the use of lethal force and it prevented disclosure in inquests into disputed state killings. It failed to tackle torture in Castlereagh and prevented effective protection of detainees. It also failed to challenge the wide array of emergency legislation.''

Participants to the Good Friday Agreement indicated that a criminal justice system should:

deliver a fair and impartial system of justice to the community;
be responsive to the community's concerns and encouraging community involvement where appropriate;
have the confidence of all parts of the community; and
deliver justice efficiently and effectively.
The injustice endured by northern nationalists since partition has been criminal. It arose not simple out of the state's failure to protect its nationalist citizens but out of a proactive anti-nationalist agenda. The criminal justice system, from the lawmakers to the RUC, from the DPP to the judiciary, all played their part in that agenda. It remains to be seen if the review of the criminal justice system commissioned by the Agreement will provide the impetus for the kind of fundamental change required.

An Phoblacht
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