COMBATING TERRORISM: SUPERGRASS TRIALS IN NORTHERN IRELAND
| Published date | 01 January 1988 |
| Date | 01 January 1988 |
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01742.x |
| Author | David Bonner |
COMBATING TERRORISM: SUPERGRASS
TRIALS IN NORTHERN IRELAND
1.
INTRODUCTION
IT
is appropriate to commence with a definition: the term
supergrass
is
here used to denote someone who has participated in a number
of
criminal enterprises, who not only gives information to the
police about them, but also agrees to give evidence in court against
a significant number of persons alleged to be his accomplices
in
crime. In other words, he is an accomplice who turns Queen’s
evidence on a grand scale.’
The use of supergrass evidence is,
of
course, by no means
confined to Northern Ireland. Accomplices have been competent
witnesses in English law for some centuries, and, in the
1970s,
were used by the Metropolitan Police in a number
of
trials
concerning armed robberies.* The Italian authorities have made
use of such evidence in respect of members
of
the terrorist group,
the Red Brigade, and both there and in the United States such
testimony has been regarded as an important tool in the fight
against organised crime, in particular, against the Mafia.3
This article, however, examines the use of such testimony to
combat terrorism in Northern Ireland. It is thought appropriate to
do
so
since its use there has reached significant proportions with
some
500
persons charged on the word of
27
supergrasses, and has
been characterised by some commentators (although not by the
Government) as a security
strategy
to
remove in a systematic way
suspected terrorists from circulation in the c~mmunity.~ Moreover,
the use of supergrass evidence may cause more acute problems for
the criminal trial process in the Province than elsewhere in the
United Kingdom since serious terrorist (“scheduled”) offences are
tried on indictment in Ulster by a single judge sitting without a
‘
Cf.
Tony Gifford,
Supergrasses: The Use of Accomplice Evidence in Northern Ireland
(Cobdcn Trust, 1984), at p.4 (hercinaftcr cited as “Gifford”); John Jackson.
“The
Use
of
’Supergrasses’
as
a
Method
of
Prosecution in Northern Ireland‘,
in Standing Advisory
Commission on Human Rights,
Annual Report for
1983-84,
H.C. 175 (198445).
Appendix C, at p.83 (hcrcinaftcr citcd as “Jackson”); Stcven Grccr, “Supergrasscs and
the Legal System
in
Britain and Northcrn Ireland”, (1986)
102
L.Q.R.
189 (hcrcinaftcr
cited as “Grccr”).
Gifford, at pp.4-5; Jackson, at p.83:
Grecr,
at pp.198, 222-230.
Jackson, at p.83; P. Hillyard and
J.
Pcrcy-Smith, “Convcrting Terrorists: The Use of
Supergrasses in Northcrn Ireland” (1984) 11 J.L.S. 335;
D.
Hallenstein, “Walking
Corpses”, in
The Sunday Times
Colour Magazine, April 8, 1984, pp.14-19; and, on their
use
against the Mafia in Italy
see
The Times,
October
5,
1984.
See,
inter ah,
Paddy McGrory, “Time to Rcappraisc thc Supergrass System”
(Deccmbcr 1983-January 1984) 200
Fortnight
12-14; Workers’ Research Unit,
Supergrasses,
Belfast Bulletin No. 11 (Summer 1984); T. Haddcn, “The High Pricc of thc Supergrass
Strategy”, (May 1983) 194
Fortnight
9;
Tony
Jcnnings and Stephen Grcer, “Final Verdict
on Supergrass System’’ (January 27-February 9,
1986)
232
Fortnight
8.
23
24
THE MODERN LAW REVIEW
[Vol.
51
jury but clothed with its powers and duties5 In addition, in such
trials in
so
called “Diplock Courts,” the other evidence (if any)
linking
D
with the alleged crime(s) is of a nature to cause some to
question its reliability, namely,
D’s
own statement6 procured during
the extended detention for questioning permitted by the emergency
legislation in force in Northern Ireland.7 In a significant number of
cases, there may well be no corroborative evidence of
D’s
involvement at all; conviction or acquittal of serious criminal
offences carrying heavy sentences may well turn completely on the
evidence of the supergrass himself.*
The Northern Ireland Context
Focusing on the use of supergrass evidence in Northern Ireland
demands that one give some idea of the legal responses to terrorism
in that Province, and of the circumstances which have produced
those responses, in order to delineate the context in which one has
to consider (a) the justifications for and the propriety of the use of
supergrass testimony, and (b) the viability of certain suggestions
for reform.
Since the
s trouble^"^
recommenced in
1969,
and particularly
since
1972,
the nature and high level of terrorist violence in
Northern Ireland” has been thought by government not to be
capable of being dealt with through the ordinary criminal process
’
Northern Ireland (Emergency Provisions) Act 1978, ss.6, 7, 30, Sched. 4 (hereinafter
cited as “NIEPA 1978”); see, further,
D.
Bonner,
Emergency Powers in Peacetime
(1985), Chap. 3 (hereinafter cited as “Bonner”). Note that NIEPA 1978 has been
amended in several respects by the Northern Ireland (Emergency Provisions) Act 1987
(hereinafter cited as “NIEPA 1987”). These are noted at appropriate points. As regards
the mode of trial NIEPA 1978, s.6, as substituted by NIEPA 1987, s.4, now expressly
permits a trial on indictment of a scheduled offence to be held at a Crown Court other
than Belfast if the Lord Chancellor, after consultation with the Lord Chief Justice of
Northern Ireland,
so
directs. The Attorney-General’s power (NIEPA 1978, s.30, Sched.
4) to certify that a particular scheduled offence is not to be
so
treated was enhanced by
the Northern Ireland (Emergency Provisions) Act 1978 (Amendment) Order 1986
(S.I.
1986, No. 75).
Bonner, at pp.142-143; K. Boyle, T. Hadden and P. Hillyard,
Ten Years
on
in
Northern Ireland: The legal control
of
political violence,
(1980), at pp.60, 61 (hereinafter
cited as “BHH”).
’
NIEPA 1978, s.11 (the three-day power); Prevention of Terrorism (Temporary
Provisions) Act 1984, s.12 (the seven-day power) hereinafter cited as “PTA 1984”). The
section
11
power has now been repealed: see NIEPA 1987, s.6 of which substitutes a new
s.11 conferring a new power to enter and search premises for the purpose of arresting a
person under the PTA 1984, s.l2(l)(b).
See Table in T. Jennings and
S.
Greer, “Final Verdict on Supergrass System”
(January 27-February 9, 1986) 232
Fortnight
8;
but
cf.
Jackson,
loc
cit.
n.1, at p.88, who
points out that, given the technical meaning of corroboration, there have inevitably been
disputes between commentators on how many instances of corroboration there were in
individual trials.
See, generally,
W.
D.
Flackes,
Northern Ireland: a Political Directory
(1983), esp.
pp.12-19 (chronology of events, 1921-83). Also useful as perspectives on the current
“troubles” are:
D.
Murphy,
A Place Apart,
(1978); K. Kelley,
The Longest War:
Northern Ireland and the IRA
(1982); P. O’Malley,
The Uncivil Wars: Ireland Today
(1983); K. Boyle and T. Hadden,
Ireland: A Positive Proposal
(1985), esp. Chaps. 1-5.
lo
Flackes,
op.
cit.,
n.9, pp.320-323; Bonner,
op.
cit.,
n.5, pp.95-97.
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