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3 February 2000 Edition

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Northern judiciary in sectarian Bar brawl


An attempt by unionist barristers to block the Bar Council's financial support for two Catholic barristers contesting the imposition of an oath of allegiance to the British Crown as a prerequisite to promotion was defeated during a special meeting of the council last week. The meeting, of almost 500 members, was convened after over 100 unionist barristers signed a motion calling on the Bar Council to withdraw its support.

Imagine what would happen if an employer in the private sector said you would have to swear an oath to serve the Queen in order to get a job. There isn't a court in the land that wouldn't throw it out.
In a statement issued after the meeting, Bar Council chairperson and member of the Inner Bar Brian Fee said the council had decided to uphold the decision. ``After a calm and considered discussion, the motion was overwhelmingly defeated.'' It is understood that money has been set aside but has not yet been handed over.

This public wrangle, which again exposes the sectarian ethos within the northern judicial establishment, comes at a very sensitive time. The Criminal Justice Review, commissioned as part of the Good Friday Agreement, is scheduled to be concluded within a matter of days. The review is set to scrutinise the make up, role and ethos of the current judiciary.

Barry MacDonald and Seamus Treacy, barristers who have been practising in Belfast for over 20 years, were due to be promoted last year to the rank of Queens Counsel, the equivalent to Senior Counsel in the South. However when the two barristers declined to swear an oath promising to serve the British queen, Chief Judge Carswell refused to amend the declaration and the appointments were put on hold.

The legal profession is now facing a lengthy courtroom battle as MacDonald and Treacy pursue a judicial review to ascertain the legality of imposing a royal oath as a prerequisite to their promotion. Their challenge was immediately supported by the Bar Council, which also favours the introduction of a more neutral declaration.

In support of their position, the two barristers have cited provisions within the Good Friday Agreement which promise to recognise and respect their Irish citizenship. They also cite other anti discriminatory Fair Employment legislation. ``Imagine what would happen if an employer in the private sector said you would have to swear an oath to serve the Queen in order to get a job,'' said a supporter. ``There isn't a court in the land that wouldn't throw it out.''

This is not the first judicial review challenging judicial oaths of allegiance to the British crown. In 1995, Catholic barrister Philip Magee successfully sought a judicial review questioning the legality of the then even more elaborate royal oaths imposed on Six-County `silks'. In the wake of the ruling, the oaths were toned down but a declaration of allegiance to the British monarch was retained.

A key player in retaining the declaration of allegiance to the Crown after the 1995 ruling is believed to have been Chief Judge Carswell. In 1996, the Bar Counsel established a committee headed by senior barrister Fraser Elliot to examine the system of appointing QCs. The committee concluded that the revised declaration also should be scrapped and replaced by a neutral declaration to serve the public rather than the British queen.

But the North's judges disagreed and in January 1997 Judge McDermott wrote to the Bar Counsel supporting the retention of the royal oath. In May 1997, the Elliot report was sent to Chief Judge Carswell but Carswell declined to comment on the grounds that it was a matter for the British Secretary of State and not for him. Yet despite his response, Carswell began to lobby for the retention of the royal oath, contacting the British Lord Chancellor, `Derry' Irvine to stress the Bench's opposition to change.

And Carswell's resistance to change does not stop with the matter of oaths. In a recent lecture delivered during a trip to Canada, the chief judge outlined his opposition to any erosion in his power to appoint the judiciary. Sources close to the Judge have said that any changes would be viewed as a ``slight'' on his performance and that of his predecessors.

Fearless defenders of injustice


In West Belfast on 9 March 1989, two unknown armed assailants drove their vehicle at high speed into mourners attending the funeral of IRA Volunteer Caoimhin MacBradaigh. One of the assailants drew a gun and fired a shot. Fearing attack, mourners dragged the men from their car and disarmed them. In Casement Park, the two assailants were identified as British soldiers. They were then taken a short distance away and shot dead by the IRA.

Following the death of the two British soldiers, over 200 nationalists were arrested and interrogated by the RUC. Over 40 people were charged, many with serious offences including murder. Over a two year period, all were tried in Diplock non jury courts in a series of mass trials presided over by a number of judges. The defendants came to be known as the ``Casement Accused''.

``The judiciary in a modern democratic state should act as the most significant protector of the rights of the citizen against violation by the state,'' said Sinn Féin in the party's submission to the Criminal Justice Review. The Criminal Justice Review was commissioned as part of the Good Friday Agreement but unlike the Patten Commission on Policing, the CJR has been conducted by a small team of unknown officials, its remit restricted by the exclusion of emergency legislation, with no international and little human rights expertise.

Consultation has been limited to responses by political representatives, legal and human rights bodies to a consultation paper released in 1998. After a number of delays, the Review is expected to make its report this month. Sinn Féin's submission continues. ``In the North of Ireland they have given the stamp of legal approval to the widespread violations of the rights of all citizens, but particularly nationalists. The northern judiciary are unrepresentative of the society in which they operate, untrained in human rights matters and discredited in the eyes of the nationalist community.''

Non jury courts presided over by a single judge were first established in North following recommendations by British Law Lord Diplock in 1974. But even prior to Diplock, the odds were stacked against Six-County nationalists securing justice in the courts. A property qualification attached to jury service ensured the vast majority of jurors were middle class Protestant men.

By the late 1980s, Diplock courts were achieving over 90% conviction rates. The overwhelming majority of defendants to appear before non jury courts were from the nationalist community. In the vast majority of cases, convictions were secured on the basis of uncorroborated `confession' evidence, often contested during the trial. The willingness of presiding judges to convict on the flimsiest of evidence and in many cases despite clear evidence that defendants had been ill treated or tortured during interrogations illustrates the extent to which the North's judiciary identified its role as supporting the state rather than upholding the rights of the citizen.

In the words of the US based Lawyers Committee for Human Rights,''instead of acting independently as a bulwark between the state and the individual, Northern Ireland's judiciary has in many respects become part of the state's enforcement apparatus.''

For nationalists, conviction almost inevitably led to severe sentences, usually lengthy terms of imprisonment. Sectarian disparities in both conviction rates and the imposition of sentences to the detriment of nationalists led many to conclude that the northern judicial system and the judiciary who presided over it were upholding the unionist status quo rather than the rule of law. Justice just didn't come into it.

This was never clearer than during the trials of the Casement Accused. The fact that many of the accused were acting in self defence against unknown armed assailants, fearing that the assailants' appearance signalled a repeat of Michael Stone's attack of three days before, in which three people were killed and 60 injured, was studiously ignored. On the other hand, many presiding judges showed a remarkable enthusiasm for adding their weight to the prosecution.

At trial, defence counsel repeatedly protested against the judges acting as their own witnesses by making their own identification from film and video but their protests were ignored. In the case of Sean Kelly, Judge Carswell admitted having doubts about the identification evidence against Kelly but, by drawing adverse inference from the defendant's decision not to testify in court, the judge secured the conviction.

Patrick Kane denied he had been in Casement Park and testified that statements he had made during interrogation were false and made out of fear of the RUC. The defence highlighted Kane's educational disabilities, identifying the defendant's vulnerability to suggestion and intimidation during interrogation. Judge Carswell admitted identification evidence could not conclusively place Kane in Casement Park but concluded Kane was deliberately appearing less intelligent than he really was and therefore must be guilty.

Despite the fact there could be no premeditation involved in the killings, that no one was even suggesting Kane took part in the actual shooting or was even in the vicinity of the shooting and at no time was it suggested that Kane was a member of the IRA, Carswell ruled that Kane must have had it in his mind that one of the possible outcomes was that the soldiers would be shot by the IRA and convicted him of murder.

During the course of the Casement trials, over a dozen men were convicted, receiving a combined total of over 300 years imprisonment. Although none of the defendants were charged with actually shooting the soldiers or with membership of the IRA, a number were convicted of murder.

Despite the fact that many of the convictions were based on highly contentious identification evidence, an extension of the denial of the right to silence and a distortion of the law of common purpose, most were upheld on appeal. A massive campaign highlighting the most controversial aspects of the cases eventually overturned some of the judgments.

The corruption of the north's judiciary can be shown not only by its punishing attitude towards nationalists, perceived as enemies of the state, but also in its leniency towards forces of the state. British soldiers and members of the RUC, even when charged with some of the most serious crimes against humanity, could depend on a sympathetic court.

Perhaps the most notorious comments made by a presiding judge were those of Judge Gibson who, after acquitting RUC officers who shot dead unarmed republicans, went on to congratulate the RUC for bringing their victims to the ``final court of justice.'' The judge even went on to criticise the DPP for bringing the case to court in the first place.

There have been over 350 individuals killed by members of the British crown forces while on duty. Almost all of those killed have been members of the nationalist community. The overwhelming majority were killed in highly contested circumstances. There have been few prosecutions arising out of these deaths and even fewer convictions. Even in the case of a conviction, the courts show remarkable reluctance in applying the full sanction of the law.

Paratrooper Lee Clegg was the only one of six members of a patrol charged in connection with the shooting of three unarmed teenage `joyriders' who was convicted of murder. Clegg and a second paratrooper were also convicted of attempted murder. The Court of Appeal upheld the convictions but called for a change in the law to allow for the institution of a lesser charge against soldiers who kill people in similar situations. In other words, in the view of the judiciary, members of the British Crown forces should be allowed to get away with murder and the law should be made to accommodate that.

A similar plea was made by the judiciary on behalf of Scots Guardsmen Fisher and Wright. The trial judge found that both soldiers had murdered a teenage boy by repeatedly shooting him in the back but he expressed the hope that the British parliament might review the mandatory life sentence for murder so that a ``more condign (deserving)'' punishment might be imposed. Members of the British crown forces are not just innocent until proven guilty, they are innocent even when proved guilty.

While judges have attempted to lessen the guilt of British soldiers and members of the RUC, nationalist defendants, even where they have been successful in quashing wrongful convictions were often vilified by the judge's remarks. In 1992, the Chief Judge at the time, Brian Hutton, acquitted Patrick Nash after incontrovertible medical evidence showed the defendant had been beaten in RUC custody. Despite the fact that the evidence was sufficient to secure an acquittal, Hutton accused the defendant of being a liar and of probably being guilty. In acquitting the `Ballymurphy 7,' teenagers brutally beaten during RUC interrogations, Judge Kerr said the judgment was not ``a resounding vindication of their innocence.''

As the Committee for the Administration of Justice points out, in cases where British soldiers or members of the RUC have been involved in killings, ``the criminal justice system treats them in an entirely different way to civilians suspected of such serious offences.'' Crown force members are not brought to interrogation centres, are not detained for seven days, they are allowed access to their lawyers and the courts accept without adverse comment statements which they have compiled with their lawyers. ``This approach is indicative of a quite marked sympathy which the judiciary has shown for members of the security forces who appear in court,'' says the CAJ.

While having raised no objections to prepared statements by members of the crown forces, judges have often questioned the honesty of civilian witnesses, especially when those witnesses have been members of the nationalist community. In acquitting two Royal Marines for the murder of Fergal Caraher and the serious wounding of his brother Mícheál in South Armagh, the then Chief Judge Brian Hutton dismissed civilian eye witness accounts because their statements had not been given directly to the RUC but through their own lawyers.

The northern judiciary from county court level upwards is currently made up of 24 men and one woman, the latter being appointed within the last two years. No figures are available for the religious composition of the bench. There are a few Catholic judges but no nationalists. Other groups are also excluded from fair representation on the Bench. Only one High Court judge has experience of defence advocacy while four are former senior crown counsel.

Many of the most senior judges, including the current Chief Judge Carswell, 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 cases including the prosecution of Brian Nelson,'' says the CAJ.

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