Throughout Northern Ireland’s many efforts to deal with its turbulent past Dr Hannah Quirk believes that one group has been overlooked – the victims of conflict-related miscarriages of justice. For her, the Attorney General’s recent suggestion that there should be no more prosecutions for conflict-related crimes highlights the need for a bespoke solution for these cases.
Since the Good Friday Agreement was signed in 1998, there have been numerous inquiries including the Saville Inquiry into Bloody Sunday. Bodies have been established to investigate the ‘disappeared’ and to conduct ‘cold-case’ reviews. The most recent effort involved negotiations chaired by US diplomat Dr Richard Haass.
While these many organisations, reports and inquiries have looked at ways of dealing with the past, one group has been neglected – potentially hundreds of victims of conflict-related miscarriages of justice.
The question of criminality has been an issue throughout ‘The Troubles’. The hunger strikes in 1981 were largely about the loss of special category status for prisoners (treating them all alike rather than as either ‘ordinaries’ or political prisoners). Similarly, prisoner release was a fundamental part of the Good Friday agreement.
Since the ceasefires, there have been few historic convictions but the Attorney-General’s recent suggestion that there should be no further prosecutions for conflict-related crimes has attracted controversy.
Transitional justice examines ways of achieving justice as countries emerge from conflicts and/or state repression. It can include decisions about prisoner release, amnesties and prosecutions.
Unlike other post-conflict regions around the world, Northern Ireland has a unique opportunity to look at ways of dealing with these cases from the past because, quite by chance, it has a body set up to do this – the Criminal Cases Review Commission (CCRC).
The CCRC was set up in 1997 following notorious cases such as the Birmingham Six and Guildford Four (although conflict-related, they were convicted in England). Whilst it has had a number of successes, it works within a conventional legal framework that is not well suited to the exceptional situation in Northern Ireland.
In the vast majority of convictions obtained during the conflict, the only evidence against the defendant was a confession.
The counter-terrorism legislation in force gave suspects in Northern Ireland fewer protections. They could be arrested by the army and detained for up to four hours before being handed over to the police, who could detain suspects for up to seven days and routinely denied them access to their solicitors.
There were credible allegations of brutality in the police offices and holding centres from organisations such as Amnesty International. Many of these suspects were juveniles and should have had an adult with them when questioned.
Defendants were tried by a judge sitting without jury in the ‘Diplock Courts.’ The judge had to decide whether to allow the confession to be used as evidence. If they did, a conviction was virtually certain.
Those working in the criminal justice system faced an ever-present threat to their safety: 300 police officers, two magistrates, two county court judges and Lord Justice Gibson were murdered by paramilitaries.
In this small community, faced with a common threat, it is unsurprising that judges often favoured the testimony of police officers over suspected terrorists. Some officers then pushed at the boundaries of how far they could go in trying to get suspects to confess.
The CCRC offers a chance for the Northern Ireland Court of Appeal (NICA) to look at some of these cases again. For the most part, it has proved more willing to quash convictions than its English counterpart has, but it has been very careful not to make any criticisms of those involved.
In one case, a 17-year-old boy with learning difficulties had made a false confession having been denied access to an appropriate adult or solicitor. The conviction was eventually overturned but there was no criticism of the legal process, the police, the trial judges, or indeed the appeal judges who allowed this to happen.
The NICA can only consider cases in which there is new evidence or argument. Because most of these cases were based solely on confessions, there is none of the usual evidence that could be investigated before an appeal.
Essentially it was made easier for the Crown to obtain these convictions and now it is harder for those convicted to appeal successfully. Many former prisoners released on licence under the 2001 Good Friday Agreement are struggling to find work. Their criminal records make it difficult for them to travel to the United States, foster children or get house insurance.
The NICA and CCRC would not be able to cope if the estimated 10,000 people convicted during the conflict tried to appeal. In the absence of a formal truth-recovery process, criminal appeals are being used by some parties as a substitute for addressing the role of the state during ‘The Troubles,’ as well as remedying individual injustices. It is not achieving either well.
A bespoke mechanism, such as some kind of a Legacy Commission, would be a more efficient and effective way of investigating these cases, achieving justice for those wrongly convicted and would offer an example to other societies emerging from conflict.