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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