Download AMNESTY AND THE RULE OF LAW

draft 2 18.11.2005
The Northern Ireland Offences Bill
A Briefing Note
This Note identifies critical issues of constitutional concern to the whole of the United
Kingdom in the proposals contained in the Bill.
The Bill, by proposing that offences be tried before a Special Tribunal rather than in
the criminal courts, contaminates the independence of the judiciary. In addition, the
exemptions from criminal investigation proposed by the Bill mean that many victims
will be denied the justice of even a proper trial in court
Some may consider that, however regrettable it may be, amnesty in respect of the
Troubles in Northern Ireland is inevitable and necessary. This Note respects those
who may hold such opinion. But in turn we suggest that responsibility for such
amnesty, if it is to be granted, should be assumed in the political sphere. Those who
support amnesty should take proper political responsibility for the measure. They
should not seek to use the judges in a corrupted trial process to mask political
responsibility for the amnesty.
Introduction
The essential elements of the Bill are as follows: 











The scheme will apply to ‘qualifying offences’ – scheduled or equivalent
offences committed before 10 April 1998
This will include offences committed by, or in the course of escaping, or
committed as part of an incident involving a scheduled offence
A ‘Certification Commissioner’ will make a determination in each case as to
whether an individual qualifies for the scheme
Those who are currently members of a ‘specified organisation’, who are
currently involved in acts of terrorism, or who have been convicted of a serious
offence committed after 10 April 1998 (for which a sentence of five years or
more has been imposed) will not be eligible
A person in receipt of a certificate of eligibility will not be subject to arrest or
detention
Powers of entry or search may not be exercised, the person may not be remanded
in custody or on bail and the power to take fingerprints or samples may not be
exercised
Such person may be tried only by the ‘Special Tribunal’ established by the Bill
There will be no obligation on the person to appear before the Special Tribunal
Where a person declines to appear, but is represented, pleas may entered by such
representative
In other circumstances a person who declines to appear is to be taken as having
entered a plea of not guilty
The Special Tribunal has, subject to the provisions of the Bill, all the powers of
the Crown Court
Thus, although by virtue of the terms of the Bill the defendant may decline to
appear, all witnesses could be compelled to appear as in a criminal trial
1
draft 2 18.11.2005


All witnesses would be subject to cross-examination by the legal representatives
of the accused. Any witness who refused to appear or answer would be guilty of
contempt of court
In the event of conviction by the Special Tribunal the accused would then qualify
to remain at liberty on licence under a scheme equivalent to the Belfast
Agreement Scheme
Such proposals corrupt the judicial process by giving the appearance without the
reality of a trial. It appears that what is proposed is akin to an ‘amnesty’ for the ‘On
the Runs’, albeit one with a judicial mask.
When any government attempts to meddle for its own purposes with judicial process
the rule of law in a democracy is at serious risk. During the last thirty years of the
troubles in Northern Ireland the judicial process has been placed under very severe
strain and everyone, including the government and parliament, should fully respect
the judiciary for their adherence throughout to the rule of law.
Whether or not an amnesty is justifiable is a political question, ultimately to be
determined by government with the authority of parliament. It is not something that
should be masked by judicial clothing.
So, whatever should be the appropriate political solution, it should not involve any
contamination of the independent position of the judiciary or damage to the rule of
law.
It is noteworthy that the Irish Government, in an equivalent scheme for their
jurisdiction, is proposing that the President should exercise her constitutional power
of pardon, rather than involving and contaminating the Irish courts in the process. 1
In this Note we go on to explain what is meant by ‘amnesty’ and ‘the rule of law’.
Amnesty
Every state has the power to issue a pardon to an offender. In the United Kingdom the
power of pardon is part of the royal prerogative. In other states the pardon provisions
may be set out in the constitution. When pardons are to be issued to a whole class of
offenders then it may be described as an amnesty.
Historically, an amnesty or pardon operates to clear the offender of all blame. So were
full normal judicial process to be followed for the ‘On the runs’, then it would be a
political question as to whether they should then be entitled to amnesty or’ release on
licence’ on terms equivalent to the Belfast Agreement scheme.
A case of arguably ‘legitimate’ political amnesty was that granted by President
Lincoln for those who deserted the Confederate cause and swore allegiance to the
Union. (Such oath of allegiance was a condition of that amnesty.)
1
Irish Times 10 November 2005
2
draft 2 18.11.2005
The decision of President Ford to use the power of amnesty to save his predecessor
Richard Nixon from impeachment in 1974 was more questionable.
Other presidents in recent times in the United States have been criticised for their use
of the amnesty power on leaving office.
More humdrum (and arguably appropriate) uses of the power are gun amnesties in
attempts to stem the growing gun culture.
These examples show that amnesty is first and last an exercise of political power, it is
a political process and is to be debated in the political forum.
Judges and the courts accordingly should remain independent and should not be
contaminated by any amnesty/pardon regime. The role of the judges is to ensure that
any finding of guilt is strictly according to the evidence and that the law is properly,
impartially and fairly applied and enforced in the courts.
As indicated, one of the most troubling aspects of the proposals is the obvious attempt
by government to abdicate political responsibility for its proposals by moving
responsibility to some specially chosen judge in the Special Tribunal.
There could be said to be an analogy with the exercise of the internment power in the
early 1970s. For a period decisions on internees were taken by a ‘tribunal’. But the
Diplock Report 2rejected this approach. It referred to what it described as the
minimum standards of a judicial process as set out in Article 6 of the European
Convention on Human Rights: Paragraph 12 of the Diplock Report is pertinent: “12.
. . . But if decisions as to guilt are to be made by tribunals, however
independent or impartial, which are compelled by the emergency to
use procedures which do not comply with these minimum
requirements, we do not think that a tribunal which fulfils this function
should be regarded or described as an ordinary court of law or as
forming part of the regular judicial system3 or should be composed of
judges who also sit in the regular criminal courts in Northern Ireland.”
So a key issue for society to face is whether the Government’s proposal is an attempt
to disguise a (political) amnesty decision by promoting the Special Judicial Tribunal
so that it will become (in Diplock’s words) ‘part of the regular judicial system’?
If this is allowed, Diplock’s comments suggest what the likely consequences would
be: “13 Northern Ireland has always been a province whose inhabitants have
been sharply divided into two rival factions by differences of creed and
politics. The judiciary has nevertheless managed to retain a reputation
for impartiality which rises above the divisive conflict which has
2
Report of the Commission to consider legal procedures to deal with terrorist activities in Northern
Ireland Cmnd 5185
3
emphasis added
3
draft 2 18.11.2005
affected so many other functions of government in the province; and
the courts of law and the procedures that they use have in general held
the respect and trust of all except the extremists of both factions. We
regard it as of paramount importance that the criminal courts of law
and the judges and resident magistrates who preside in them should
continue to retain that respect and trust throughout the emergency and
after the emergency has come to an end4. If anything were done
which weakened it, it might take generations to rebuild for in Northern
Ireland memories are very long”
The Bill undoubtedly has the effect of contaminating the independence of the
judiciary and violates the rule of law.
The rule of law
There is no statutory or constitutional definition of the rule of law. But it is a doctrine
of great value for individual liberty and dignity. It means the proper subordination of
all authorities (legislative, executive and judicial) to generally accepted principles of
the law such as: 
justice

moral principles

fairness

due process
Another way of expressing the concept is that:
“Legislatures and courts fail to comply with the rule of law if they operate
with rules which are not general, well publicised, prospective, clear,
consistent, possible of performance, permanent and strictly upheld”5
The Northern Ireland (Offences) Bill and the Rule of Law
The proposals of the Bill fail any recognisable true rule of law test on at least the
following grounds:-
4
5

The scheme is not general as it is designed to suit the demands of the ‘On
the runs’ candidates only

The scheme has not been well publicised. Prior to the publication of the
Bill it was not publicised at all (save for the short 2003 Proposals
Document and apparent selective leaks which hardly meet the required
emphasis added
JW Harris Legal Philosophies 2nd edition Butterworths p 154
4
draft 2 18.11.2005
standard of transparency). Note that government did not engage in any
consultation process or commit to the proper sequence of green paper, and
white paper before publication of a bill and debate in parliament.

The scheme is not prospective. It is an attempt to alter the past.

The scheme constitutes unfair discrimination between those entitled to
claim ‘certificates of eligibility’ under the Bill as compared with others
accused of equivalent crimes, but ones committed outside the ‘political’
sphere’

The scheme particularly denies justice to victims (and the community
generally) in respect of ongoing police investigations of unsolved crimes.
If, in cases, police investigation (for instance using new techniques of
DNA) enables files to be reopened and offenders to be identified, such
persons should under due process be arrested and then duly brought to trial
in court. But any such person will be entitled to claim a certificate of
eligibility and then enjoy privileged status through the Special Tribunal

There must be special concern that the Special Tribunal could wield its
Crown Court powers to compel witnesses, perhaps members of the
victim’s family, if they had been witnesses to the crime. Such witnesses
would, of course, be liable to cross-examination by any representative of
the accused, while the accused was not even required to attend for trial.
Such flagrant corruption of judicial process and the rule of law will have the
most serious consequences for community confidence in and respect for the
courts and legal process in Northern Ireland.
The Belfast Agreement of 10 April 1998
Annex B of the Agreement (under the heading of ‘Prisoners’) provided that
the early release scheme would apply only to those convicted of scheduled
offences and serving sentences of imprisonment in respect of such offences.
There is no provision in the Agreement for any extension of the scheme.
Consequently, the provisions of the Bill go beyond and are not in accordance
with the terms of the Agreement which were put to referendum in both
jurisdictions on the island of Ireland on 22 May 1998.
The question in the Northern Ireland referendum was –
“Do you support the agreement reached in the multi-party talks on
Northern Ireland and set out in Command Paper 3883”
As the Bill is an attempt to go beyond the terms of the Agreement there should
be a further referendum of the electorate of Northern Ireland to establish if
they (by a majority) support the proposals of the Bill.
5