PART II: AN EVALUATION OF THE PERFORMANCE OF THE DPP

Part II seeks to evaluate the performance of the DPP against the standards set by the United Nations Guidelines on the Role of Prosecutors and the Royal Commission on Criminal Procedure. This will entail analysis of whether the DPP succeeds in performing his functions fairly, openly and efficiently, and with an acceptable level of accountability. Particular focus is also given to the issues of the independence of the DPP and to whether or not the DPP has captured the confidence of the general public, as these were the two principal reasons for the establishment of the office in 1972.

The Department of the DPP was intended to operate independently of the government, the RUC and the judiciary. In their consultation paper, the CJRG asserted that: ‘The independence of the prosecution process is of critical importance.’¹ In practice, however, there has long been concern about the extent to which the prosecution process achieves this independence. The relationships the Director and his Department have with other government agencies are such that it cannot be possible that the DPP operates with the desired level of independence. This is due to the potential for pressure to be asserted by the other government agencies, whether implicitly or explicitly, on the DPP during the decision-making process. The following section seeks to highlight the key points and concerns surrounding the lack of independence of the DPP, focusing on the most publicly dominant influences on the DPP, namely the Attorney General and the RUC.

The organisational structure of the criminal justice system is inconsistent with the functional independence of the DPP. This is largely due to the relationship between the Director and the Attorney General. This relationship appears to result in a coincidence of interests between the DPP and the government that raises both legal and constitutional concerns.²

‘The office of the Director of Public Prosecutions for Northern Ireland was created by Parliament. Constitutionally, like all officers of the Crown, his conduct must be amenable to challenge in Parliament. This is done through the Attorney General who is responsible for the acts of the Director of Public Prosecutions. The relationship between the Director of Public Prosecutions for Northern Ireland and the Attorney General is similar to that between the Director of Public Prosecutions for England and Wales and the Attorney General.’³

The model of decision-making originally intended for Northern Ireland was one where the Director was to be responsible to the Attorney General for the due performance of his functions. Instead, the English model, whereby the Director carries out his duties under the superintendence of the Attorney General, was introduced as a ‘temporary provision’. This was a result of s.1(2) of the Northern Ireland (Temporary Provisions) Act 1972 which declared that for as long as the emergency legislation was in place, ‘... the Attorney General for England and Wales shall by virtue of that office be Attorney General for Northern Ireland also.’ Article 5(2) of the 1972 Order confirmed the superintendence of the Director to the Attorney General. The power of the Attorney General to give directions to the DPP is contained in s.2(1) of the Prosecution of Offences Act 1979, and the Act further provides that the Attorney General is politically answerable for the DPP.

The Attorney General retains a great deal of power within the criminal justice system. This is because:

‘The Attorney General answers for both Directors [Northern Ireland and England and Wales] to Parliament in Westminster. Thus, constitutionally, the ultimate prosecution authority, whose conduct can be examined in Parliament, is the Attorney General. In this role of bearing ultimate responsibility for prosecutions, it has ever been accepted that an Attorney General is wholly independent of Ministers. And an Attorney General is answerable for his conduct and for that of the Director of Public Prosecutions (now of both Directors) to Parliament at Westminster and to Parliament alone.’⁴

The power of the Attorney General is increased by his powers of appointment of the Director and deputy Director, and their dismissal on the grounds of inability or misbehaviour. This causes concern as the Attorney General is a Member of Parliament, and he is also a government appointee in his role as the chief law officer of the government. As the CJRG itself noted, the stated role of the Attorney General is to represent ‘the government’s interest in important legal disputes.’⁵ Bernard Dickens described the office of Attorney General as a ‘hybrid’, as it combines qualities of judicial detachment and political partisanship.⁶ The fact that the decisions to prosecute made by the Director are subject to review and, indeed, interference by the Attorney General, directly makes a mockery of claims that profess the independence of the office.

It is notable that the Attorney General has the power to exercise some important discretions in selected matters involving the criminal law. Of fundamental significance is that:

‘Application is made to the Attorney General in cases in respect of which there is power to issue a certificate in pursuance of Schedule 1 of the Northern Ireland (Emergency Provisions) Act 1996 so that particular offences are not treated as scheduled offences and for his consent to prosecution under particular legislation, for example the Explosive Substances Act 1883. The Director brings to the attention of the Attorney General certain cases or types of case either to obtain the advice of the Attorney General or to inform the Attorney General of a decision which he proposes to take.’⁷

For practical reasons the DPP does not consult with the Attorney General in every decision to prosecute. However, in politically sensitive cases, the role of the Attorney General is pivotal. There is little concrete evidence of the role played by the Attorney General in these cases as it is rare for solicitors to be informed as to whether or not the Attorney General has been consulted with regard to a specific prosecution decision. Nevertheless, it can be reasonably deduced that the DPP has consulted with the Attorney General in relation to cases where the decision-making process has been delayed considerably; and, also, in relation to incidents where the factual circumstances and media attention given to the incident makes the involvement of the Attorney General a foregone conclusion, for example, incidents involving the security forces, deaths occurring in disputed circumstances, and cases where informer information is a key factor.

In the majority of lethal force cases the role of the Attorney General is ambiguous, but nonetheless crucial. In a few cases, however, his role has been publicly highlighted. The most notorious of these instances is the controversy surrounding the Stalker/Sampson inquiry. This inquiry revealed some of the only concrete evidence of the involvement of the Attorney General in the decision-making process. The inquiry, established to investigate the RUC’s shoot-to-kill policy involving specialist ‘anti-terrorist units’ in 1982, was surrounded in controversy from its inception. Of direct relevance to this document is the claim made by Stalker that the Attorney General (Patrick Mayhew) was not only de facto directing the scope of his inquiry, but was also monitoring the scope of information revealed to him. It was only after Stalker had made his interim report available to the DPP that Mayhew and Shaw judged full disclosure of all information to the investigating team was in the public interest⁸. On 20 July 1986, Secretary of State for Northern Ireland Tom King confirmed the decision to remove Stalker from the inquiry had been made by the Chief Constable of the RUC, Sir John Hermon, in consultation with Mayhew. When Sampson, who had replaced Stalker leading the inquiry, made his recommendations to Shaw that 11 members of the RUC be charged in connection with the six killings in Co. Armagh in November and December 1982 Shaw agreed with the findings of the investigation. However, the power of the Attorney General to interfere in cases was starkly apparent in subsequent events as Mayhew ruled that while there was prima facie evidence of attempts to pervert the course of justice there would be no prosecutions on the grounds of ‘national security’. Clearly Patrick Mayhew neglected his statutory duty to uphold the rule of law in this case. Instead the Attorney General opted to protect the then Conservative government, of which he was a senior member, from well-founded allegations that the state was operating a shoot-to-kill policy against opponents.

This closeness does little to inspire confidence in the concept of the DPP being an independent office free from political interference, as the level of independence achievable within the context of the relationship between the Director and the Attorney General is not sufficient. Anthony Jennings’ reflection on this relationship is particularly telling:

‘The decision to prosecute is, formally speaking, the DPP’s. But it is known that the DPP discusses such cases with the Attorney General; there is, therefore, a real possibility of interference with the DPP’s potential influence over these serious abuses - witness the Attorney-General’s decision not to prosecute, despite the Scarman findings and the DPP’s decision not to prosecute after the Stalker/Sampson findings.’⁹

There are a number of alternatives to the ‘superintendence model’, which have the benefit of securing greater independence for the Director and a consequent releasing by the Attorney General of some or all of his power and influence over the DPP.¹⁰

As highlighted above, the driving force behind the creation of the office of the DPP was the desire to institute a prosecuting authority independent of the RUC, against whom allegations of partiality had been levied. Although the capacity to charge still remains in the hands of the RUC, this was mainly seen to be a power to bring the accused individual before a court in order that the court may remand him either in custody or on bail as it sees fit. It is the Director who has the power to make subsequent decisions as to proceedings.

The Department of the DPP described the relationship between these two agencies as follows:

‘In respect of cases reportable by the Chief Constable to the Director it is the function of the Chief Constable to investigate alleged or suspected offences and to furnish relevant facts and information to the Director. It is the function of the Director with a view to initiation or continuation of criminal proceedings, to consider the facts and information brought to his notice by the Chief Constable, and where the Director thinks proper to initiate, undertake and carry on criminal proceedings. The broad and important principle is that investigation of alleged crime is for the Chief Constable, not for the Director. The Director has no statutory function to advise police.’¹¹

A Belfast solicitor described this relationship as follows: ‘There is not so much a relationship between these two agencies, as ‘an inextricable link’ between them¹². This suggests something that has far greater potential to diminish the independence of the DPP than a simple ‘relationship’ would do. It implies that one cannot perform its functions effectively without the presence and co-operation of the other. This high degree of interdependence has significant implications as it impacts directly upon the independence of the Director in his discretion to prosecute, particularly in controversial cases and those concerning security force personnel.

It had originally been intended that the independence of the Director from the RUC would be achieved by a combination of the provisions contained in Article 5(1)(b) of the 1972 Order, which gives him the power to cause any matter to be investigated where it appears to him to be necessary or appropriate to do so, and Article 6(3). Article 6(3) provides:

‘(3) It shall be the duty of the Chief Constable, from time to time, to furnish to the Director facts and information with respect to -

(a) indictable offences alleged to have been committed against the law of Northern Ireland;

(c) at the request of the Director, to ascertain and furnish to the Director information regarding any matter which may appear to the Director to require investigation on the ground that it may involve an offence against the law of Northern Ireland or information which may appear to the Director to be necessary for the discharge of his functions under this Order.’

There is an implied requirement that such information be furnished in good faith and to an acceptable standard. If the provision of that information is inadequate, the DPP, as one of the chief law officers, arguably has an obligation to confront the problem. This is particularly so where such inadequacies prevent him from performing his statutory duties. However, faith in the DPP to return these files to the RUC and to instruct them to carry out further investigation is not high, and this is seen as a key way in which the perpetrators of lethal force killings and security force brutality have consistently escaped prosecution.

While the DPP is now responsible for the decision whether or not to prosecute a member of the security forces in relation to serious crime, there is grave concern that the actual investigation into such crime is typically carried out by the RUC as the DPP has no direct investigatory powers. In the exercise of this investigatory function the RUC has considerable autonomy since they are not under the operational direction of the Government. ‘This,’ the CJRG asserted, ‘provides important safeguards in terms of freedom from political control.’¹³ However, in practice, this arrangement has proved to be fundamentally flawed. This is because while it is typical for the RUC, as the law enforcement agency of the jurisdiction, to carry out investigation into criminal offences, the ability of the RUC to do so effectively and impartially has time and again proved to be lacking in practice. The reliance of the DPP on the results of these RUC investigations of alleged crime therefore inhibits the ability of the DPP to make just prosecutorial decisions. It is self-evident that a partial RUC force cannot be trusted to carry out impartial criminal investigations. Therefore, the reliance of the DPP on RUC files to make decisions in the performance of his prosecutorial decisions has significant implications.

This problem is compounded by the absence of an independent body monitoring RUC investigative practice. Northern Ireland is not unusual in this respect, but the lack of independent investigation creates acute problems here because of traditional policing problems in the jurisdiction.¹⁴ (It remains unclear whether the Human Rights Commission and/or the yet to be established Police Ombudsmans’ Office will impact on RUC/PSNI investigatory practice.) Therefore, unless the DPP or the Attorney General is going to maintain strong pressure on the RUC to improve the quality and efficiency of its criminal investigations practice, there is no method of ensuring that this is achieved. The result is that the DPP, either wittingly or by default, makes prosecution decisions without the benefit of all the information that may be available about a case.

A recent example of the impact this relationship can have is the case of Robert Hamill, where the DPP has failed to bring prosecution against any of the RUC officers who witnessed the fatal attack. The lack of prosecution in relation to the murder of Robert Hamill has also raised some important concerns as to the independence and credibility of the DPP. Not only has there been a failure to bring to justice the actual perpetrators of this murder despite a large number of witnesses, but there are allegations of a cover-up to protect those RUC officers from prosecution who failed to act to prevent Robert’s murder. It is interesting to note, in justification of claims of double-standards operating within the prosecution system, that the very reason given by the Director for non-prosecution of four of the five individuals charged with the murder was the very reason the DPP gave for the actual conviction of the Casement 3.¹⁵

John Stalker has also attested to the impact of this relationship. Following the Stalker/Sampson inquiry it became publicly clear there were a number of clearly identifiable problems with criminal investigations in Northern Ireland. Again, the clear conclusion to be drawn by the public and the investigators was that no standard set of procedures were being applied to members of the security forces committing serious offences, especially those occurring in disputed circumstances, and those being carried out by non-security force personnel. John Stalker drew the following conclusions:

‘I had to regard the investigation of the matter as slipshod and in some aspects woefully inadequate. I was left with two alternative conclusions: either that some RUC detectives were amateur and inefficient at even the most basic of murder investigation routines; or that they had been deliberately inept.’

Unfortunately, this is a typical, not unusual, example of the inadequacy of criminal investigations carried out by the RUC in relation to controversial cases. This represents infringements of international human rights standards, and directly violates Article 6 of the ECHR.¹⁶ This is especially relevant, as in October of this year, 2000, the Human Rights Act 1998 shall come into effect, incorporating the ECHR. Therefore, the right to a fair trial will become a right enforceable in domestic law.

Article 2 of the United Nations Code of Conduct for Law Enforcement Officials demands that: ‘In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.’ Article 8 of the Code continues by outlining the behaviour that is not acceptable from law enforcement officials, and requires that: ‘Law enforcement officials shall respect the law’. The CJRG also emphasises that ‘the RUC are always, of course, answerable to the law.’¹⁷ However, it is particularly in cases where this Code of Conduct has been violated, especially if the allegation of wrong-doing arises from the failure of members of the security forces to operate in a manner consistent with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, that the quality of the investigation plummets as well as the fairness and equity of the DPP’s decision relating to it. Amnesty have stated that, ‘Particularly in cases where alleged RUC misconduct is involved, the Director of Public Prosecutions may have failed in its charge to make an independent assessment of the facts of the case in order to determine whether there is sufficient evidence to warrant prosecution.’¹⁸

The problematic elements of investigative procedures in Northern Ireland are characterised by: a lack of effective response to the gravity of the loss of life; a lack of standardised processes to be competently followed in all cases; superficial adherence to basic scenes of crimes procedures. This causes such concern because the DPP is totally reliant on the information contained in the file compiled by fellow officers in deciding whether to prefer charges against accused officers, and he is therefore highly reliant on the co-operation of the RUC. Amnesty International have argued that ‘In some cases evidence has shown that RUC investigations may have been deliberately superficial in order to protect security force personnel.’¹⁹ Various coroners have also attested to this. The most notable example of a coroner exposing the problem of inadequate investigative procedures was when Armagh coroner Gerry Curran resigned in August 1984 over ‘irregularities in the RUC files’ concerning the deaths of Seamus Grew and Roddy Carroll in 1982²⁰.

This clearly contravenes the international standards for proper investigations into all cases of suspicious death. The United Nations Special Rapporteur noted in his January 1988 report that these standards included: promptness, impartiality, thoroughness, and publication of findings of the investigation. He also states that the family of the victim and lawyers should be able to participate in the investigatory proceedings and have access to substantive information at various stages of the investigation.²¹ The investigative procedures in Northern Ireland not only fail to meet these minimum standards, but also contravene the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.²² With the incorporation of the ECHR, RUC/PSNI officers will have a duty under domestic law to carry out effective investigations. This will result from the need to uphold Article’s 2 (the right to life) and 3 (prohibition of torture and inhuman and degrading treatment) of the Convention. Article 3 contains an implicit duty to investigate brutality by the RUC.

In cases where the prosecution relates to the alleged mis-use of lethal force controversy seems inevitable. Therefore, the investigation carried out into such an offence is vital. This is because the adequacy of the investigation of an offence, in particular a killing occurring in disputed circumstances, has a profound impact on the community in which the incident occurs. Deficient or careless investigation merely serves to compound the sense of state responsibility without accountability. It not only further threatens to undermine policing partiality, but confidence in the ability of the legal system to hold everyone equally accountable for criminal acts is also shattered.

A number of factors appear to combine to foster circumstances in which it becomes virtually impossible to secure the prosecution, let alone the conviction, of an RUC officer or British soldier for committing a criminal offence. Amongst these factors are that the RUC code of silence for the most part pre-empts any damaging testimony by colleagues, and the procedures for interviewing soldiers are different than for civilians - for example, soldiers are removed from the scene and debriefed after an incident, see a Ministry of Defence lawyer, and hand in a prepared statement relating to the incident in question.

The investigation into the death of Dermot McShane is a case in point. The 35 year old Derryman died from injuries sustained when he was run over by a British Army Saxon armoured vehicle during rioting in the city in July 1996. Over twelve hours later RUC detectives were provided with a statement from the driver of the vehicle, pre-prepared in the presence of an MOD solicitor. No interview was carried out at this point and it was a full six months before RUC detectives flew to England to interview the soldier concerned. A file was later submitted to the DPP who decided that there would be no prosecutions in the case. To allow six months to elapse before interviewing the driver speaks volumes for the mindset of the investigating officers. They were apparently clear in their own minds that shoddy, even criminally negligent, investigations would not result in their dismissal or calls for a fresh investigation. Indeed vital witnesses to the incident were not even interviewed. What was the response of the DPP to this obvious failure to investigate a controversial death that led to renewed unrest throughout the North at the time?

Jennings also points to the fact that the DPP and the security forces are essentially ‘on the same side’ in the adjudication of crimes committed by civilians, and that these close ties may compromise, at least on occasion, the DPP’s willingness to prosecute accused officers²³. It is also generally recognised that more evidence is effectively required for prosecutions of security force personnel than is required for civilians or alleged paramilitaries. The DPP inevitably takes into account that RUC officers and soldiers enjoy a strong presumption of innocence in court. The DPP therefore only prosecutes in cases that hold an overwhelming prospect of securing a conviction, rather than applying the test of ‘a reasonable prospect of conviction’ as applied in cases against civilians.

A prominent solicitor highlighted a key concern arising from this relationship in relation to complaints made against the RUC. The DPP will become involved in the prosecution of summary offences when a complaint against the RUC. The idea behind this is that if a person has lodged a complaint against RUC oficers arising out of her/his arrest and the circumstances surrounding such arrest then the RUC could be perceived as being particularly keen to ensure the prosecution of the complainant and thus this role is taken out of their hands. In practice, the DPP, who is charged with investigation of offences in such circumstances, have interpreted their role as being to buttress any errors in the preparation of the case against the accused/complainant and practising solicitors find many instances of additional charges over and above those initially brought by the RUC being instigated by the DPP. In addition whilst the complainant may make a complaint to the Independent Commission for Police Complaints it is the RUC themselves who investigate such complaints and the prosecution of RUC officers arising out of such complaints is virtually unheard of. This is as a result of the RUC officers being well-briefed in advance of the investigation of such complaints regarding the allegations which have been made about them and the complainant therefore finds her/himself between ‘a rock and a hard place’ vis-à-vis the DPP and the Police Complaints Commission. The solicitor told the PFC that, in his experience, when such cases come to court the office of the DPP adopts a highly inflexible attitude to the prosecution of the offences with which a defendant is charged even when the evidence against her/him is extremely slim. This is due to the office of the DPP having ‘misinterpreted it’s role which is to serve the community at large without fear or favour: it instead appears to see it’s role as being the legal branch of the RUC’²⁴.

The DPP must, therefore, take a certain amount of responsibility for post-investigation events. It is the DPP who possesses the power of discretion as to whether or not to prosecute an individual for an offence and with this power comes a duty to ensure that he is making these decisions on the best information available. The 1972 Order provides him with the power to return files to the RUC if they are inadequate, and perhaps if RUC officers had known the files would be returned if the DPP was dissatisfied with them an ethos of efficiency and honesty would have developed. There are problems with this, such as the DPP being unable to stand over the RUC officers to ensure investigations are carried out to a high standard, and that the original evidence would largely no longer be available at the scene of the crime. Nonetheless, the fact that the DPP has obviously unquestioningly accepted RUC files in numerous cases where it has later been revealed the files were inadequate represents a failure of the DPP to perform his duty fairly, and starkly emphasises why this inextricable link needs to be terminated in order to achieve independence within the prosecution process. It is also notable that the office of the DPP has not sought to remedy the situation through lobbying to increase the Department’s powers of investigation, or through making the Department more accessible in order to encourage the transmission of relevant information directly from the public.

Overall, it is clear that when the perpetrators of crime (or their colleagues) are the investigators, and in some cases the prosecutors, the prosecution process falters.

There is much less clarity as to the relationship the DPP has with other agencies of the state, for example with military intelligence, and it is therefore purely open to speculation as to the degree to which other agencies exert any influence over the decisions made by the DPP. The link between the DPP and the judiciary is also of significance. This is because the Director only prosecutes in those cases he believes there is a ‘reasonable prospect’ of securing a conviction. The prospects of conviction have proved to be consistently lower for members of the security forces than for civilians or paramilitaries. This is largely due to a stronger presumption of the innocence of RUC officers and soldiers prevalent in court, therefore more evidence is effectively required for the prosecution of these people than is required for civilians or paramilitaries.

It is clear that the independence of the DPP is directly impacted upon by the relationship the Department has with other government agencies. In particular, the Attorney General and the RUC clearly have the power to negatively impact upon the decision-making process of the DPP even in situations where the Director attempts to perform his functions in an impartial manner. Boyle, Hadden and Hillyard describe this situation neatly:

‘Both in respect of the initiation of charges by the RUC and in respect of possible directions from the Attorney General the Director is very far from being an entirely independent agent. He is able to carry out a quasi-judicial function at a particular stage in the prosecution process. But he is wholly dependent on the reports that are submitted to him by the RUC. ... [A] fully judicialised prosecution system would require much more substantial changes in both law and practice.’²⁵

An additional concern that should be noted at this point is that the DPP and his staff appear to see themselves as another arm of the state in a manner similar to the way the judges view themselves as such. Those involved in the prosecution process and in the courts have traditionally seen themselves as second line troops in the conflict behind the security forces.²⁶ This obviously has important implications for the level of independence the office can achieve. This has proved important as this self-perception led them to take a stance of viewing matters case by case instead of allowing themselves to look at emerging trends by linking similar cases. Had the Department of the DPP taken a broader view, this may have prevented the perpetuation of both the supergrass system and the shoot-to-kill policy by exposing cases emanating from these policies as a practice rather than perceiving them as exceptional cases.

DOES THE DPP FOR NORTHERN IRELAND ACHIEVE THE STANDARDS OF FAIRNESS, ACCOUNTABILITY AND OPENNESS, AND EFFICIENCY?

While the previous section has evaluated the DPP against a principle criterion for its establishment, namely in order to achieve an independent prosecution process, analysis should not be limited to this. The criteria by which it should be judged are the broader standards proposed by the Royal Commission on Criminal Procedure. Has the DPP operated according to the criteria of fairness, openness and accountability, and efficiency?

A new prosecution process was created in the early 1970’s because of allegations of partiality. This begs the obvious question whether the new structures succeeded in creating an ethos of impartiality and fairness. The fairness of a prosecution process is most important since if it does not operate fairly then accountability, transparency and efficiency are of little value. In a particularly sensitive society such as that in Northern Ireland the fairness of the prosecution process becomes fundamental.

The fairness of a prosecution process is generally understood to mean that prosecutions are only initiated in those cases where, firstly, there is sufficient evidence and, secondly, where such proceedings are justified in the public interest. The stated evidential standard applied by the DPP is that of the ‘reasonable prospect of conviction’ test. The standard of justifying prosecution by judging whether it would be in the public interest can be problematic as it depends on which public’s interest is seen to be being served. In Northern Ireland what one section of a community may deem to be a logical prosecution decision may in the eyes of another section of the community simply serve to reinforce doubts as to the ability of the establishment to administer justice in an equitable, and therefore fair, manner.

The Royal Commission on Criminal Procedure stated that the fair operation of a prosecution system:

‘... requires a high standard of competence, impartiality and integrity in those who operate the system. The guilty should not escape prosecution nor the innocent be prosecuted because those who make the decisions or collect the necessary evidence upon which the decisions can be made are inefficient or motivated by sectional political, social or economic interests, or are corrupt.’²⁷

It has been the inability or the unwillingness to act in a fair and independent manner in controversial cases, usually those involving members of the security forces as perpetrators of a serious offence, that has been seen to have seriously eroded the credibility of the DPP in certain sections of the community. This is precisely because, in the words of the Royal Commission, those who ‘collect the necessary evidence […the RUC…] upon which the decisions can be made are inefficient or motivated by sectional political, social or economic interests, or are corrupt.’

A vital test of fairness is whether in cases involving security force personnel the same test is used by the DPP in coming to the decision whether or not to prosecute. The Director informed the Bennett Committee²⁸ that he applied no special standards as a means of exempting RUC officers from prosecution or of acting with special severity towards them. However, there are a number of concerns as to the DPP’s ability to treat such cases with equal fairness. The previous section noted how the investigation is usually performed by the RUC (unless an outside force has been brought in to investigate a particular case). This leaves the DPP dependant on an investigation into an offence allegedly committed by a member of the security forces being carried out by their colleagues. Another problem is that it is generally appreciated that the level of evidence needed to secure a prosecution against security force personnel is considerably higher than that needed for civilians and paramilitaries due to the sympathetic nature of the courts to the security forces and the fact that such cases have been notoriously difficult to prove. The DPP would also be aware of this, and no doubt bears this in mind during the decision-making process. In relation to prosecutions of members of the security forces that frequently ended in acquittals, Boyle, Hadden and Hillyard concluded:

‘Our own view is that the pattern of outcomes in these cases is better explained by the fact that a higher standard of proof is effectively required to rebut the general presumption that RUC officers and soldiers are more trustworthy than those who make complaints against them. When the effect of this presumption is combined with the fact that no admissions are made by the defendants and that the very strong loyalty of those serving in the RUC and the army usually secures a completely united front from all defendants and witnesses, the difficulty in securing convictions can be understood, if not justified.’²⁹

If a decision is for prosecution, on the other hand, there are complaints of shoddy treatment of ‘our lads’ who are operating in difficult circumstances, and often claims are made that the decision was made for reasons of political expediency. The latter was argued by a retired lieutenant-colonel who wrote to The Times about ‘the many extraordinary and alarming instances of the prosecution of RUC officers and soldiers for acts performed in the course of carrying out their duties against terrorists’:

‘In the absence of any other compelling reason, it seemed to us in Northern Ireland that soldiers were prosecuted either simply to test whether their constitutional duty had been performed properly or - even more disturbingly - in order to demonstrate to the vested interests that the DPP’s Office could be relied upon to be even-handed as between the forces of law and order on the one hand and the enemies of the state on the other.’³⁰

The argument that the DPP has allowed a prosecution to be brought against a member of the security forces purely for reasons of political expediency has also been attested to by Steven Greer and Tony Jennings:

‘Prosecutions seem to be initiated only where there is a reasonable chance of acquittal, not conviction.’³¹

These are obviously disturbing allegations due to the disregard of both the rights of the suspect to due process and a fair trial, and the rights of the victim to secure justice. In light of the above the families of murdered teenagers Martin Peake and Karen Reilly could be forgiven for believing that the prosecutorial shambles which has accompanied their case can be explained through other factors than simply lack of evidence. Paratrooper Lee Clegg and others did open fire on a vehicle and then attempt to pervert the course of justice. Two teenagers were murdered yet no-one has now been made amenable following Clegg’s recent acquittal.

Interestingly, the DPP appears to operate upon the notion whereby a decision not to prosecute is not a declaration that an offence has not been committed. In 1978, he wrote, in relation to cases where individuals alleged they had been assaulted by RUC officers while in custody, that:

‘It is not, for example, my function to determine whether or not an individual was assaulted. My function is to determine whether or not the evidence is sufficient upon which to direct the initiation of criminal proceedings in respect of such alleged assault.’³²

What this fails to acknowledge, though, is the continuing negative effect this has on the quality of investigations. For example, David Adams received approximately £30,000 for the serious assault he suffered while being arrested and while in custody; despite this no RUC officer has been prosecuted in relation to the assault. The assault was investigated by colleagues of the assailants. Did the DPP return the file to the RUC and order a more thorough investigation given that the file was clearly inadequate to secure convictions?

It is not just in cases involving security force personnel that the office of the DPP has failed to operate in a fair manner. For example, the willingness of the Department of the DPP to involve itself in RUC attempts to frame Lurgan man Colin Duffy raise serious questions about the professionalism of those who prepared the file. Duffy’s conviction for the murder of an ex-UDR man was eventually overturned amid a welter of accusations concerning the role of the RUC and the office of the DPP in the affair. Claims are now emerging that a discredited prosecution witness, Lindsay Robb, whose original evidence was central to the prosecution of Duffy, was paid to pervert the course of justice by the RUC. ³³ The prosecution case, as prepared by the DPP, should be required reading for the new prosecution service under the title What Not To Do While Preparing a File.

As has been highlighted above, the prosecution authority has the obligation to ensure the guilty are prosecuted and the innocent do not suffer. The DPP has failed dismally to ensure that this notion operates as a matter of course in controversial cases in Northern Ireland.

In reference to the criminal justice system, accountability and openness go hand in hand. Accountability can be defined as the extent to which the operational system enables those persons who take prosecution decisions to be called publicly to explain and justify their policies and actions.

It was explained above that the DPP is accountable indirectly to Parliament through the Attorney General. The DPP does not have to publicly give reasons as to why a particular decision was reached. This has resulted in the working of the Department being somewhat shrouded in secrecy, which is something that will inevitably draw suspicion. It also raises the question of why there is a need for such secrecy if a system is operating equitably and justly.

Public accountability is a criterion most people have to adhere to today, and it does not seem unreasonable to demand that the DPP should also be in a position to be held accountable. A move towards greater openness in relation to general prosecution policy can only be positive. An effective way to introduce this would be to require the DPP to publish an annual report, as his counterpart in the Crown Prosecution Service in England has to do, and also a code of prosecution practice. The increased accountability and openness that would be achieved by the introduction of these publications to the Northern Irish system of prosecution is two-fold. Firstly, it would enable the DPP to articulate the basic principles underlying the prosecution decision-making process in Northern Ireland; and, secondly, it would provide a vehicle with which to clarify certain issues where a controversy has arisen relating to a particular decision. It would also bring the DPP into line with the UN Guidelines on the Role of Prosecutors.

Traditionally, the two individuals who have held the office of DPP have eschewed interviews and publicity. Accountability and transparency does not mean that the personal lives of these individuals need be hijacked. However, increased accountability and transparency of the actual practices and procedures is required. This would result in increased public understanding of what the office of the DPP is all about and how it functions, while still allowing for the protection of sensitive information.

Another vital area that must be addressed is the system of transmission of the final decision made by the Department to the victim of an offence, and/or the victim’s family. The present system is unsatisfactory, as it often involves the victim/family being brought news of the DPP’s decision by an RUC officer, which is obviously very insensitive in cases where the individual has alleged, for example, brutality or ill-treatment while being held in RUC custody, or in lethal force cases. While the DPP is slightly more open now in terms of the disclosure of reasons for a particular decision having been reached there is still room to develop an ethos of communication with the relevant victim/family in order to enable them to understand why a decision has been reached. Afterall, it is the right of victims of all types of crime to be informed of the reasons behind a decision not to prosecute.³⁴ Some might argue a recent example of the increased openness is the receipt by the family of Robert Hamill of a letter from the Department giving some of the reasons why prosecution of four out of five of the loyalists arrested in connection with his murder did not proceed, and why no prosecutions have taken place of any of the RUC officers present at the scene of the incident. It can also be argued that the DPP, having failed to bring the guilty to justice, opted for damage limitation given the high profile of the case.

The concept of the efficiency of the prosecuting authority as a criterion with which to measure the operation of a prosecution system is fraught with difficulties. This is because it is hard to define and to measure those things that combine to create a measure of efficiency within the criminal justice system. It is not simply a measure of the number of prosecutions, or even the number of prosecutions that result in conviction, as this is not a practical criterion. It has been described above how the prosecuting authority functions to ensure those who can reasonably be expected to be convicted are prosecuted, and that those for whom there is an unsatisfactory amount of evidence or whom it would not be in the public interest to prosecute are not. This, though, is impossible to use as a yardstick with which to accurately measure the efficiency of the prosecution system, therefore more readily available methods by which to measure this concept must be identified.

A key measurement of efficiency is the speed of the decision-making process. This is an important measurement for both the victim of an offence and the alleged perpetrator who each have a vested interest in finding out whether or not a prosecution is to be taken.

When the record of the DPP is examined in light of this criterion concern is again aroused. It is important that all decisions are made as speedily as is effectively possible to ensure the human rights implications of delaying this process are minimised. It is typically cases of a sensitive nature that have encountered significant delay, sometimes amounting to several years. This has important implications as far as the rights of both the victim and the accused are concerned. It also affects the ability of those involved to seek redress of the case through other channels. For example, delaying a decision regarding prosecution prevents a victim taking recourse to other methods of seeking justice, such as private prosecutions, inquests and taking the case to the European Court of Human Rights.

Pressure has been put on the DPP to institute measures to combat delay in the handling of cases. One of the primary measures instituted in response was the adoption in August 1985 of time limits. These time limits were reduced in November 1987 to twenty calendar days permitted from the arrival of a file in the registry to the issue of final direction, and forty days for decisions to prosecute on indictment. Secondly, a ‘fast stream’ system, whereby straightforward scheduled cases which will be prosecuted on indictment are identified at an earlier stage and given a particular priority. For ‘fast stream’ cases the time limit in the Department is twenty days from receipt of the file until the issue of the direction to prosecute and the completed committal papers. Thirdly, the Director has instituted a number of mechanisms to improve co-operation between his office and the RUC.

Again, it is those cases involving offences committed in controversial circumstances that cause problems within this category. The International Lawyers Inquiry into allegations of a shoot-to-kill policy in Northern Ireland concluded that:

‘On a disturbing number of cases the DPP has delayed for many months before deciding to institute proceedings against members of the security forces.’³⁵

‘The Lord Chancellor, the highest judicial authority in the United Kingdom, and also a political appointee in the Government, has asserted that there are ‘legitimate policy reasons’ for delaying the DPP’s decision to prosecute. We reject this view, first because the DPP should be immune from political influence and secondly it asserts cynically that it is more important to protect the security forces from adverse criticism rather than it is to serve the legitimate concerns of the family of the deceased, the community at large and, not least, the individual members of the security forces who linger under the threat of possible murder charges for many months. This policy has prevented Coroners from carrying out their statutory functions ... Furthermore, it encourages the public perception that the security forces operate above or outside the law.’³⁶

It is essential that an ethos of efficiency pervades the Department of the DPP. This will ensure that cases are dealt with swiftly, and that the human rights of both the victim to restitution, and the accused to be brought speedily before a court of law, are recognised and respected. It is unnecessary for delays of several months, or years, to occur. Even where delay is unavoidably incurred, for example, when the DPP feels it is appropriate to consult the Attorney General, or to require the RUC to further their investigation into an offence, the additional delay should not be any more than is sufficient to ensure a just decision is made.

The proposal made by the International Lawyer’s Inquiry for the duration of the decision-making process in relation to cases involving the use of lethal force by the security forces is a useful framework within which an efficient process could be achieved for all cases:

‘...an independent prosecutor should be appointed to conduct a full investigation of any killing by a member of the security forces and to submit findings to the DPP within 21 days. The DPP should decide whether to prosecute within a further 7 days, thus enabling Coroners to open inquests within 28 days. The DPP should always be required to give detailed reasons for the decision not to prosecute members of the security forces in such cases.’³⁷

It is essential that efficiency becomes the norm for the decision-making process of the Department, and the particular sensitivity of cases that occur either in disputed circumstances and/or at the behest of the security forces requires that such efficiency should not only be achieved but must also be seen to be prevalent in order to engender public confidence in the prosecution process in Northern Ireland.

The importance of public confidence in the prosecution process in any country is vital. This is particularly true for Northern Ireland, where the office of the current prosecuting authority was established as a result of a lack of public confidence in the previous prosecuting regime.

‘It would be rather remarkable if the simple creation of a Director of Public Prosecutions and a corps of public prosecutors were to establish universal confidence where previously criticisms were commonplace. Public confidence has to be earned and maintained over a considerable period of time and in circumstances of varying pressure.’³⁸

Reflecting upon this statement we would assert that the confidence of the public has certainly not been earned by the decisions of the DPP. Indeed, over the ‘considerable period of time’ the Department of the DPP has been in operation concern has increased and public confidence has diminished even further about the impartiality and effectiveness of the Director in the performance of his functions as public prosecutor.

Factors that have contributed to the failure of the present system to secure cross-community confidence have been highlighted above. However, there are some key points that need to be emphasised.

Concern has been voiced about the role of the DPP since 1973. Only eighteen months after the office was established, a report entitled ‘Justice in Northern Ireland. A Study in Social Confidence’ (October 1973) was published highlighting perceptions of a lack of impartiality on the part of the prosecuting authorities. The Attorney General instructed the DPP to undertake a detailed analysis of the study, and this analysis was subsequently released in a White Paper.³⁹ It is interesting to note this unprecedented attempt by the prosecuting authorities to refute the evidence and its conclusions. This effort was undoubtedly made due to the newness of the office, and the fact it had been established in order to gain public confidence in the prosecution system. Despite ongoing concerns about the impartiality of the office throughout the period since that time, no similar efforts have been attempted to win over the public.

It is important to stress that the DPP, as public prosecutor, has a fundamental duty to respect and to protect the human rights of all people throughout the performance of his functions. As highlighted in the introduction, this is emphasised in the UN Guidelines on the Role of Prosecutors:

‘Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and promote human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.’ (Guideline 12)

This is in addition to the rights set forth in the International Bill of Rights which include the universal ‘right to life, liberty and security of person’ and the ‘right to freedom from torture or cruel, inhuman or degrading treatment or punishment’. Has the DPP protected these fundamental human rights within the jurisdiction he is charged to serve?

First of all, the credibility of the DPP to make decisions that are in the interest of justice has been undermined due to a willingness to prosecute certain individuals of scheduled offences on the most tenuous of evidence. The close association of the right to liberty and to security of person with that of the right to life in Article 3 of the UDHR demonstrates the fundamental nature of these rights. Despite this, the British government has entered a derogation from both the International Covenant on Civil and Political Rights and the European Convention on Human Rights which enables the circumstances surrounding the deprivation of liberty to fall short of international standards.

There have been three ways in which the right to liberty and the right to a fair trial of these individuals have been impinged upon: the use of the ‘supergrass’ system to obtain prosecutions, the acceptance of forced admissions to offences as admissible evidence, and the attack on the right to silence. Of the greatest significance in relation to each of these categories for this document is that each of these policies have ensured the successful conviction of individuals whom the RUC have claimed to be republican or loyalist paramilitaries, even when there is little or no evidence to corroborate these claims.

On behalf of the Northern Ireland Human Rights Assembly, Professor Kader Asmal asserted that:

‘The loss of liberty is a very grave deprivation, which should never be inflicted lightly on anyone. Adequate safeguards are therefore vital to ensure that laws which sanction detention are fair and that those officials empowered to deprive people of their liberty cannot abuse their power. When things do go wrong, prompt and sufficient compensation must be available, wrong-doers disciplined, and mistakes and abuses publicly acknowledged.’⁴⁰

In Northern Ireland, however, the DPP has played a key role in securing convictions that impinge upon these standards in direct contravention of the UN Guidelines on the Role of Prosecutors.

The Guidelines on the Role of Prosecutors provide the definition of this standard as:

‘Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.’

Internationally human rights law generally aspires to the right to a fair trial and the right to due process. The standards provided for in Articles 6, 2 and 3 ECHR, taken with Articles 14 and 1 ECHR are applicable to ensuring the right to a fair trial is upheld. Therefore, the prosecuting authority, in the performance of his functions, has an obligation to ensure that these rights are upheld. In practice, however, the DPP has failed to operate in a manner conducive to this. The following are illustrations of the manner in which the DPP has allowed these rights to be seriously impinged upon throughout the conflict.

The most notorious set of cases whereby the DPP was happy to proceed with the prosecution of individuals on tenuous evidence centred on the use of accomplice evidence against large numbers of individuals.

This ‘supergrass’ system was introduced following the publication of the Bennett Report. The conclusions of this report had destroyed the RUC’s stock answer in the face of allegations of brutality in holding centres that prisoners were deliberately hurting themselves in order to either discredit the force or to gain compensation. Reforms based on Bennett’s recommendations made it more difficult to obtain confessions by their previous methods and therefore increased reliance on a system using supergrasses upon whose evidence large numbers of individuals would be convicted of serious criminal offences. Tony Gifford QC urged the DPP to increase the standard of evidence for proceeding with prosecutions in such cases from that of relying exclusively on accomplice evidence to ensuring this was in some way corroborated by other evidence:

‘... the Director of Public Prosecutions, under the authority of the Attorney General, has the responsibility for the conduct of prosecutions in terrorist cases. He has a duty not to prosecute on the basis of evidence that is not credible. He has the power to refuse to prosecute cases that depend on uncorroborated supergrass evidence, as his English counterpart has done for many years. I recommend that prosecutions should not be authorised by the DPP where the only evidence to implicate the accused is that of the supergrass. The Attorney General has the power to insist that such a policy be adopted, and if the DPP will not himself take that action the Attorney General should intervene to prevent prosecutions based on uncorroborated supergrass evidence.’⁴¹ [author’s emphasis]

The cases should never have reached the courts. The DPP had a responsibility to assess the emerging pattern of large numbers of individuals being charged with scheduled offences merely on the say so of one individual whose evidence was typically uncorroborated - especially as the credentials of many of the supergrasses were fragile, with some having committed murder and others being described by judges as ‘liars’. Had the DPP taken the advice of those respected figures like Tony Gifford QC, and refused to institute prosecutions on the basis of the accomplice evidence of paid informers, the system would soon have become unworkable. Instead, allowing cases to proceed in this manner enabled judges to have the opportunity to convict scores of people on unverifiable evidence. While Dickson pointed out that ‘There is no law which says that the testimony of suspects needs to be corroborated in this manner’⁴², it is notable that almost all the convictions made on the uncorroborated evidence of supergrasses were subsequently overturned on appeal, and there have been no major supergrass trials since 1983. Had the DPP truly been acting independently of any agenda other than that of the administration of justice he would have recognised this system would inevitably collapse under the weight of this obvious unfairness. This did nothing to engender perceptions of credibility of the office of the DPP.

The second key area whereby the DPP has failed to fulfil his ethical obligations in the performance of his duties relates to those cases where confessions to serious offences have been obtained through the use of brutality by those carrying out criminal investigations, while the confessions have subsequently been deemed admissible in court as evidence.

The freedom from torture and other forms of ill-treatment is a universal and fundamental right. It is the only right from which it is forbidden for any state to derogate in any circumstances. Article 1 of the UN Convention Against Torture and Other Cruel Inhuman and Degrading Treatment and Punishment (UNCT) defines torture as:

‘…any act which causes severe pain or suffering whether physical or mental which is intentionally inflicted on a person for the purpose of:

(i) obtaining information from him/her or a third person, or (ii) obtaining a confession, or (iii) punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or (iv) intimidating or coercing him/her or a third person, or (v) for any reason based on discrimination of any kind, when such pain is inflicted by or with the consent of a public official or other person acting in an official capacity.’

Article 5 of the Code of Conduct for Law Enforcement Officials expands on the notion of there never being circumstances prevailing that allow anyone to commit such an act:

‘No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political stability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.’

Despite this, the DPP has consistently failed to perform a vital function. The DPP has failed to bring those who perpetrate this kind of offence to justice, as he is required by the UN Guidelines to do. This is subsequently compounded by the DPP allowing evidence obtained in this manner to be admitted to court as evidence against the defendant.

For situations such as this the United Nations drew up Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment. A number of these principles are repeatedly violated in Northern Ireland, including:

1. It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person.

2. No detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or judgement.

Non-compliance with these Principles in obtaining evidence shall be taken into account in determining the admissibility of such evidence against a detained or imprisoned person.

The ill-treatment of individuals detained in custody continues as the DPP allows the perpetrators to carry out ill-treatment with impunity. There has been repeated pressure to force prisoners to incriminate themselves contrary to Article 14(3)(g) of the ICCPR. The effect of this has been compounded by the simultaneous attack on the right to silence contained in the Criminal Evidence (Northern Ireland) Order 1988, which allows inferences to be drawn from a defendants silence if s/he fails to account for marks on her/his clothing or her/his presence at a particular place, or if they choose not to give evidence at their trial. This in itself is in violation of Principle 16 of the UN Guidelines, which states:

‘When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through resource to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.’

The ill-treatment of individuals in order to obtain information and/or confession has been a consistent theme throughout the conflict ever since the introduction of detention without trial in 1971. In 1977, the European Commission of Human Rights in the case of Ireland v. United Kingdom⁴³ concluded that physical mistreatment of suspects, through beatings and the use of sensory deprivation techniques, had attained sufficient severity to be regarded as torture. The following year, the European Court of Human Rights upheld the complaints as amounting to inhuman and degrading treatment, though not attaining the severity required for a finding of torture.⁴⁴

Despite this, complaints have consistently been made concerning ill-treatment in custody. Some of these complaints have concerned sentenced prisoners, most notably at the time of the 1980/1 hunger strikes. The great majority, however, have concerned the treatment of people during RUC interrogation. A consistent theme in prosecutions, especially of republicans, has been allegations of ill-treatment during interrogations within the holding centres (Castlereagh, Gough Barracks and Strand Road) which were specifically set up to deal with suspects arrested under emergency legislation. In 1996, Dr. Joe Hendron of the SDLP pointed out that between 1978 and 1982 22,000 people were arrested and questioned at Castlereagh Interrogation Centre alone, and hundreds of those detained were beaten. The vast majority of this 22,000 were later released without charge.⁴⁵ The ill-treatment of detainees by RUC officers during interrogation casts doubt on the prosecution brought about on the basis of contested confessions, made in the absence of a lawyer.

The emergency regime of lower standards of admissibility of confession evidence, lack of full disclosure by the prosecution to the defence of crucial evidence, and the curtailment of the right of silence, has resulted in unfair trials. It is revealing to highlight the difference between the standards of admissibility of evidence in Britain and in Northern Ireland. A specific offence of torture is legislated for in domestic law under s.134 of the Criminal Justice Act 1988, which applies to Great Britain and Northern Ireland. This offence carries a maximum sentence of life imprisonment. Compensation is available for criminal injuries resulting from both torture and other forms of ill-treatment. These offences would also constitute the common law offence of assault, for which civil compensation is available. Furthermore, if a confession is obtained from a suspect by ‘oppression’, defined as including torture, inhuman or degrading treatment, the use or threat of violence, or the use of threats or inducements, it is intended to be inadmissible in a British court of law. However, the standard of admissibility is lower in the single-judge no-jury (Diplock) courts in operation in Northern Ireland for hearings of alleged scheduled offences. The Diplock courts admit all confessions through s.11 of the Emergency Provisions Act which allows any written or oral statement by the accused to be admitted as evidence. It is then the defence who must, if relevant, raise prima facie evidence showing the accused was subjected to ‘torture, to inhuman or degrading treatment, or to any violence or threat of violence in order to induce him to make the statement’, whereupon, the prosecution must disprove it beyond reasonable doubt. This is the reverse of the procedure in Britain whereby it is for the court to determine whether a confession may have been obtained by oppression and for the prosecution to prove it was not.

The significance of this lies in the fact that the majority of convictions under emergency legislation in Northern Ireland involve confessions.⁴⁶ This is especially significant when reflecting that many people have alleged that they have been prosecuted, and in many cases convicted, on the sole basis of contested confessions that they claim were obtained through coercion and were made in the absence of a lawyer. These contested confessions are typically a result of a combination of the following factors: physical brutality of the detainee within the holding centre; verbal abuse; verbal threats made against the detainee or his/her family, and verbal death threats, including of the detainees lawyer. There have also been complaints regarding denial of medical examinations and of detainees not receiving prescribed medication promptly.

The UN Special Rapporteur on the Independence of Judges and Lawyers, following a fact-finding mission in October 1997, recommended the standards in emergency legislation for admitting confession evidence should be abolished. He further recommended that the ‘restoration of the jury system, which has been a culture within the criminal justice system in England, would help to restore public confidence in the administration of justice.’ The Special Rapporteur also recommended the detainees’ right to immediate access to legal counsel should be respected and that the emergency power of deferral of legal access for 48 hours should be prohibited. He stated:

‘In the view of the Special Rapporteur, it is desirable to have the presence of an attorney during RUC interrogations as an important safeguard to protect the rights of the accused. The absence of legal counsel gives rise to the potential for abuse, particularly in a state of emergency where more serious criminal acts are involved. … [T]he harsh conditions found in the holding centres of Northern Ireland and the pressure exerted to extract confessions further dictate the presence of a solicitor is imperative.’⁴⁷

Again, the DPP for Northern Ireland should have played a valuable role in the protection of the rights of suspects by ensuring that those who perpetrated such offences were prosecuted in accordance with international standards. Instead, he allowed prosecution to proceed against individuals who had admitted to offences under excessive pressure, and he has failed to prosecute RUC officers who have inflicted torture or ill-treatment in order to obtain confessions. (A number of prosecutions were attempted following the publication of the Bennett Report, but failed.)

Even in numerous cases whereby an individual has received compensation for ill-treatment administered whilst in custody, it is almost unknown for any RUC officer or soldier to be subsequently prosecuted for ill-treatment of suspects in custody. This is significant when reflecting on the levels of compensation that have been paid to victims of brutality. If the judiciary and the government acknowledge this treatment occurs through providing financial restitution, surely it would be in the interests of justice to prosecute the perpetrators. In a notorious 1977 judgement one member of the judiciary, former SAS member McGonagle LJ, went further than merely accepting that ill-treatment took place. He found that a certain level of ill-treatment to induce statements was indeed permissable under Section 6 of the Emergency Provisions Act since the relevant section, according to the ‘learned’ judge, had been drawn from Article 3 of the European Convention on Human Rights! In legal circles the judgement became known as the ‘Torturers Charter’ leading to well-founded fears that the courts had now given dangerous latitude to RUC interrogators which, according to the Bennett Report, ‘may tempt police officers to see how far they can go and what they can get away with.’ In a democratic state the role of the DPP ought to have been to ‘lead interrogators away from such temptation’.⁴⁸ The opposite was the case.

The DPP could have prevented the continuation of such practices. In doing so, he would have proved that he really is operating to administer justice for all sections of society.

Public confidence has been irrevocably damaged by the failure to prosecute members of the security forces in lethal force cases and for their role in cases pointing to direct collusion between the security forces and loyalist paramilitaries.

It is nothing less than extraordinary that despite the security forces having been responsible for the deaths of 357 individuals, representing over 10 per cent of all fatalities attributable to the conflict, prosecution has only occurred of 30 security force personnel, resulting in the conviction of only 6 members of the security forces, all of whom were soldiers.⁴⁹ The statement issued by 33 lawyers in 1998, demanding equal protection under the law, stated:

‘The State has a duty to uphold the right to life, the most fundamental of all rights. Since the conflict began those acting on behalf of the State have illegally denied that right to life in numerous circumstances. The failure of the State to uphold the right to life has led to a widespread belief that the security forces enjoy immunity from prosecution. The relative immunity of members of the security forces from prosecution is perhaps best exemplified by the fact that only four security force members have been successfully prosecuted for murder while on duty – two of whom were released after serving only three years of their life sentences. No member of the RUC has been convicted of the use of lethal force while on duty. The subsequent response of the RUC, the Director of Public Prosecutions and the courts to such incidents has substantially eroded confidence in the legal system.’⁵⁰

The impact of this on public confidence in the prosecution system, especially in that community that has most consistently been the target of security force actions, is obviously extremely damaging. It is interesting to reflect that 1993 was the first year in which nobody was killed by the security forces in relation to the conflict, yet at the beginning of that year there had been only two convictions for these deaths. The logical conclusion to be drawn from such figures is that the office of the DPP was at the very least acquiescing to this policy by actively deciding, in the vast majority of cases, not to proceed with the prosecution of security force personnel.

The right to life is a fundamental human right that is protected by international law. Indeed, the right to life has been described as ‘the most fundamental of all human rights, without which no other human right has meaning’.⁵¹ Derogation from the right to life is not permitted, and under international human rights law no one may deprive another person of his or her right to life except in the most circumscribed of situations. Having contracted to adhere to international standards which aim to protect fundamental human rights, foremost of which is the right to life, the United Kingdom has a legal and moral responsibility to uphold these rights. The willingness of the British government to do so in Northern Ireland is seriously undermined by empirical analysis of deaths that have occurred in controversial circumstances since 1969, and the subsequent failure to prosecute the perpetrators.

It is worth highlighting that while the DPP is restricted in his power to proceed with prosecution in a number of such cases by the nature of UK law on the use of force falling short of international standards,⁵² the Department has undoubtedly applied a different test to the prospect of conviction of security force personnel than for the prosecution of non-security personnel. This is in contravention of international law, most relevantly of Principle 7 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials which states that: ‘Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.’ These standards are far stricter than those applied in practice by both the security forces and the criminal justice system in relation to the Northern conflict. It is important to keep emphasising that it is essential that the security forces adhere to the rule of law, and that they must be made to adhere to the rule of law by the mechanisms at work within the criminal justice system:

‘If a democracy is to be able to check terrorism, the forces engaged in that struggle must parade their adherence to the law at all times. In the eyes of organisations such as Amnesty International and of the courts in other countries which have refused to extradite to the UK suspected Northern Irish terrorists, the British authorities have clearly not succeeded in this aim.’⁵³

The examples of cases where no prosecution was brought against security force personnel for the misuse of force or the use of excessive force are too numerous to mention in this document. However, the identification of the following categories highlights human rights violations the security forces have been able to perform with virtual impunity, and with scant regard for the human rights implications of their actions as a result of prosecutorial decisions made by the DPP and on occasion by the Attorney General:

(i) The use of a shoot-to-kill policy: in the early 1980’s, resulting in the deaths of Eugene Toman, Sean Burnes and Gervaise McKerr; Michael Tighe (and Martin McAuley seriously injured); Seamus Grew and Roddy Carroll. The scandal surrounding these deaths, and the subsequent prosecutorial decisions, led to the Stalker/Sampson Affair.

(ii) Set pieces where people were killed in situations where they could have been arrested: this category of action achieved notoriety through incidents including the Gibraltar killings and the Loughgall ambush, and as a result of the remark made by Gibson J. that ‘Shooting may be used as a method of arrest’. The Gibraltar killings were carried out by SAS soldiers in disputed circumstances. Mairead Farrell, Sean Savage and Danny McCann were shot dead in Gibraltar on 6 March 1988. The three were planning an attack on British soldiers stationed in Gibraltar, but they were unarmed when shot and could have been arrested without difficulty. Controversy arose from these killings as witnesses claimed no warning was given to the three before the shooting began, and there were also claims they were shot as they lay wounded on the ground. The Loughgall ambush has been described as ‘the most spectacular manifestation … [of the] … hidden contest between a covert elite within the security forces and the republican movement, its mortal enemy’.⁵⁴ Eight IRA men and a civilian were shot by undercover British soldiers during a gun and bomb attack on Loughgall RUC barracks, Co. Armagh, on 8 May 1987. No attempt was made to arrest any of the IRA unit at the scene.

The shooting dead of Peter Thompson, Edward Hale and John Joseph McNeill is another case in point. The three men were shot by British soldiers from 14^th Intelligence Company during an attempted armed robbery at Sean Graham’s bookmakers at the corner of the Falls Road and the Whiterock Road. The men are believed to have been specifically targeted by the security forces. John Joseph McNeill, the unarmed driver of the getaway car, was shot in the back of the head from less than two feet as he sat behind the wheel of the car; each of the three men was shot with between six and twelve bullets. The circumstances of these killings are such that it points to a specific intention to kill rather than arrest the men. The controversy surrounding the disputed circumstances of the killings was further compounded by the delay in the DPP’s decision as to whether or not to prosecute any of the covert unit in relation to the killings; the two-year delay in the decision-making process is unacceptable.

There have been continuing and credible allegations that members of the security forces have colluded with loyalist paramilitary organisations. Specifically, the allegations include involvement of security force personnel in loyalist attacks; the passing of personal security files to loyalist death squads; incitement to murder/issuing death threats by RUC officers in interrogation centres; failure to protect and/or warn individuals whose lives were at risk and the obstruction of murder inquiries. According to Amnesty International:

‘Such collusion has existed at the level of the security forces and services, made possible by the apparent complacency, and complicity in this, of government officials. This element of apparent complicity has been seen, for example, in the failure of the authorities to take effective measures to stop collusion, to bring appropriate sanctions against people who colluded, or to deploy resources with equal vigour against both Republican and Loyalist armed groups that pursue campaigns of political murder.’

In response the RUC Chief Constable has denied allegations of collusion and pointed to the lack of prosecutions as evidence. For many years the standard response of the RUC press office to such claims was to point, selectively, to the findings of the Stevens inquiries. Though these reports were never published it was claimed in the published summary that collusion was neither widespread nor institutionalised. In 1999 John Stevens again returned to carry out a further inquiry, this time into Pat Finucane’s murder. At a press conference he stated that he had never investigated the Finucane murder in relation to his earlier inquiries. If true, and leaving aside the contradiction with earlier official statements, this begs the question of how any senior police officer could come to the conclusion that collusion was neither widespread nor institutionalised since the inquiries that led to that conclusion had ignored one of the most controversial cases involved - the targeting and murder of a prominent solicitor by RUC Special Branch and the Force Research Unit of the British Army in collusion with the UDA. The DPP played a fundamental role in ensuring that the evidence which pointed to widespread collusion in this case never saw the light of day in any courtroom. As Seamus Mallon, the Deputy First Minister and MP, said at the time: ‘Fundamental issues of collusion that put people in danger and led to loss of lives have been swept under the carpet.’⁵⁶ ⁵⁷

Controversy has arisen again recently with the DPP’s decision not to prosecute any of the RUC officers alleged to have made threats on the life of Rosemary Nelson, the Lurgan solicitor who was murdered on 15 March 1999. The decision, relayed to Rosemary’s family two days before Christmas, means the accused officers will not face criminal charges. Paul Nelson, described the decision as

‘another body blow for our family. …Nearly ten months after her death, there is no sign of any commitment to truth or justice for Rosemary. …Tony Blair must recognise his responsibility in relation to truth and justice for Rosemary and establish an independent international judicial inquiry into all the circumstances surrounding her murder.’⁵⁸

The Irish News commented that: ‘The case will now be considered for possible disciplinary proceedings. But observers have suggested disciplinary action is unlikely.’⁵⁹ This is because, unlike in England and Wales where the test applied to evidence is the ‘balance of probabilities’, the criminal legal test of ‘beyond reasonable doubt’ used by the DPP to weigh up evidence is also employed in RUC disciplinary proceedings.⁶⁰

Evidence has also emerged recently of collusion in the gun and bomb attack on Donnelly’s Bar in Silverbridge in 1975 which left three dead. From the beginning of the investigation it was known that the attackers included RUC and UDR personnel working with UVF members. The DPP suddenly decided to drop charges against a number of those implicated in the attack raising suspicions that a political decision had been made not to highlight security force collusion in the incident. There is also a growing body of evidence that the same group were involved in other atrocities in Mid Ulster and in the Dublin-Monaghan bombings.

In 1994 Amnesty International called for a wide ranging independent inquiry into allegations of collusion. ‘There is mounting evidence of collusion between government forces and groups like the Ulster Defence Association…’. To date there has been no such inquiry. When there is, the role of the DPP should also come under scrutiny. The DPP had the duty and responsibility to vigorously pursue prosecutions of security force personnel involved in collusion. Clearly, there was pressure on the DPP from the security forces/services and governments of the day to ensure such prosecutions did not occur. Nevertheless, the DPP still had a duty under domestic and international law to uphold the rule of law.

While the level of brutality and ill-treatment against individuals detained in custody was highlighted above, there is also the wider issue of RUC ill-treatment of members of the public prevalent outside of interrogation centres. In 1998/9 there were 620 claims made against the RUC from members of the public, alleging ill-treatment or infringements of their legal rights. Of these, 318 cases were settled, largely by way of out-of-court settlements resulting in a bill of £982,000 for the taxpayers. Only five complaints against the RUC made by the public were upheld last year. In all over £2.5million has already been paid out over the last four years, arising out of 6,702 complaints in the same four years. During the same period only 19 complaints were upheld by the internal RUC complaints system.⁶¹ What is of great concern is the small number of prosecutions the DPP has instituted against RUC officers despite these massive payments made in response to allegations of ill-treatment. CAJ also highlighted this in their submission to the United Nations Committee Against Torture: ‘Given the number of substantiated complaints from members of the public in 1995, 1996 and 1997 was eight, five and one (according to the Chief Constable’s figures) it is quite difficult to detect any correlation to the quite high compensation figures.’⁶² The failure of the DPP to institute criminal proceedings against RUC officers in these cases represents a failure to protect the human dignity of the victims of ill-treatment, and a failure to bring the perpetrators of these actions to justice.

The credibility of the DPP has been severely damaged by his reluctance, or inability, to administer justice in many cases, including those highlighted above. This directly contradicts with the Director’s statutory function to administer justice, and these decisions have combined to fatally undermine both the independence and the credibility of the office of the DPP. In none of the above instances has the DPP directed an investigation of these human rights abuses of its own volition. It has simply become involved in those instances where complaints have been made and by in large has refused to recommend any prosecution. This is despite the widespread concern over these abuses highlighted by respected human rights bodies across the world.⁶³

Whereas the UN Code of Conduct for Law Enforcement Officials states the aim of the criminal justice system as being the prevention and control of crime, the Directors have played their part in a process whose primary purpose appears to have been to secure the conviction of individuals whom the RUC claim are guilty, whilst ensuring the security forces are able to carry out grave, and often lethal, actions with virtual impunity. Therefore, contrary to the assertion of the CJRG, the DPP is not independent and the prosecution process was undoubtedly a key aspect in the implementation of the security agenda. The decisions taken by the DPP over the last 27 years have enabled a system to develop whereby several fundamental human rights have been violated and several key civil and political liberties have been severely impinged upon. This has had important consequences since it has contributed to a total lack of public confidence in the criminal justice system as a whole within sections of the community in Northern Ireland.

Article 7 of the UDHR asserts the right ‘All are equal before the law and are entitled without any discrimination to equal protection.’ The statement issued by lawyers in 1998, stated: ‘It is a fundamental tenet of the rule of law that all are subject equally to the law and that no-one is above the law. Yet in our professional experience we have witnessed numerous incidents where this basic principle has been abandoned.’⁶⁴ It is clear the DPP has failed, through prosecutorial decisions that have been made in ‘hard’ cases, to ensure this fundamental right has been protected.

Public confidence in the office of the DPP has been repeatedly shattered by an apparent disregard for each of the standards of independence, fairness, transparency and accountability, and efficiency. This represents a failure to perform his function in its entirety. Mindful of the assertion in the UDHR that ‘Everyone shall have the right to life, liberty and security of person’, this document has illustrated the manner in which the DPP has operated in order to ensure the interests of the British state have been served, despite the potential and real implications for the aforesaid rights. Controversies surrounding key prosecutorial decisions made by the DPP to either prosecute or to not prosecute have provided evidence of double standards within the prosecution process. This has resulted in a partial administration of justice, adapted to reflect prevalent political interests rather than seeking to ensure a climate of justice and the protection of fundamental human rights would prevail.

The SDLP, in their submission to the CJRG described the implications of this lack of public confidence:

‘There have been a series of high profile cases whereby the DPP has fulfilled his responsibility in a manner giving rise to great concern. It is accurate to state that the office of the DPP is not generally distinguished by the nationalist community from the broader administration of justice. It is correct that upon the office of the DPP is visited, by association and directly, the wrongs and abuses of the administration of criminal justice.’⁶⁵

The office of the DPP has misinterpreted its role, which is to serve the community at large without fear or favour. A solicitor described it as appearing to see it’s role as being the legal branch of the RUC.⁶⁶ As a result of his failure to administer justice impartially and consistently the DPP is not complying with either international law or his statutory duty. Clearly the problem which exists is that the DPP and the RUC see their role as dependent upon each other, and whilst this state of affairs continues the public at large have no confidence in the role of either. Therefore, there can be no other conclusion drawn than that the office of the DPP should be dissolved, and a new, independent prosecuting authority be instituted that does perform this duty in compliance with international standards and human rights law.

2 From notes taken when interviewing Professor Brice Dickson, the Chief Commissioner of the Northern Ireland Human Rights Commission.

15 For further information relating to the murder of Robert Hamill see Appendix 6, and at the PFC website at http://pfc@users.datarealm.com. Appendix 6 also outlines the case of the Casement 3.

35 Asmal, K. (Chairman) Shoot to Kill? International Lawyers Inquiry into the Lethal Use of Firearms by the Security Forces in Northern Ireland (1985) p121

40 Report of the Northern Ireland Human Rights Assembly (6-8 April 1992) Broken Covenants – Violations of International Law in Northern Ireland, p63

44 This related to the use of the ‘five techniques’, which the British government subsequently banned the use of as an interrogation technique. The five techniques consisted of hooding, sleep deprivation, white noise, a starvation diet, and standing for hours spread-eagled against a wall; these techniques were accompanied by continual harassment, blows, insults and questioning, and usually went on for a period of six or seven days. See Tim Pat Coogan (1995) The Troubles – Ireland’s ordeal 1966-1995 and the search for peace p127 for further information.

46 The extent of RUC reliance on confessions can be gauged by the fact that ‘approximately 90% of cases brought in the Diplock courts rely solely or mainly on confession evidence.’ Taken from the submission made by CAJ to the UN Committee Against Torture, 13 Nov 1991, p9

49 See Appendix 8 for a table of security force prosecutions. The apparent disparity in numbers of convictions (4 or 6) is explained by reference to conviction for actual murder and other convictions arising out of lethal force incidents such as wounding with intent, etc.

50 Statement issued by 33 lawyers from throughout the North on 14 January 1998 Equal Protection under the Law. One of the signatories was Rosemary Nelson.

52 By allowing force which is reasonable in the circumstances rather than force which is absolutely necessary, by virtue of s.3 (1) of the Criminal Law Act (Northern Ireland) 1967.

55 For example, figures converted into 1999 monetary terms by the Human Rights Commission from figures provided by the Economic and Social Research Council reveal that over three quarters of a million pounds has been paid out between 1988 and 1999 by the MoD alone – this is a figure that is not thought to include settlements relating to injuries caused by the thousands of plastic bullets fired during Drumcree-related civil disturbances. This figure also excludes payments by the Police Authority.

63 For example, no initiative was taken by the DPP, ‘who is empowered to do under Article 5 (1)(a) of the 1972 Order’ to investigate serious misuse of blastic bullets in Derry and elsewhere in the aftermath of the Drumcree protests in 1996 and 1997. Some RUC officers had discharged in excess of 100/150 plastic bullets, most of which they were unable to account for, and yet there appears to have been no investigation, even of a cursory nature, as to their actions. Similarly, in the case of assaults and brutality in Castlereagh, Strand Road and Gough Barracks holding centres, despite well-documented cases of horrific injuries inflicted by members of the RUC Special Branch, the DPP did not consider any of the independent reports confirming such abuses with a ‘view to his initiating any criminal proceedings’.

director of public prosecutions document

PART II: AN EVALUATION OF THE PERFORMANCE OF THE DPP