Don't Mention the War: The Court of Appeal, the Criminal Cases Review Commission and Dealing with the Past in Northern Ireland
| DOI | http://doi.org/10.1111/1468-2230.12044 |
| Author | Hannah Quirk |
| Date | 01 November 2013 |
| Published date | 01 November 2013 |
THE
MODERN LAW REVIEW
Volume 76 November 2013 No 6
Don’t Mention the War: The Court of Appeal, the
Criminal Cases Review Commission and Dealing with
the Past in Northern Ireland
Hannah Quirk*
Despite the vast transitional justice scholarship relating to prisoner release, amnesties and pros-
ecutions when conflicts end, there is a significant gap in practice and academic literature regarding
wrongful convictions. Uniquely amongst post-conflict societies, Northern Ireland has a body for
investigating miscarriages of justice, albeit one designed for ‘ordinary’ appeals. In the absence of
a formal truth-recovery process, criminal appeals are becoming a proxy for addressing the role of
the state during ‘The Troubles,’ as well as remedying individual injustices. This article examines
the approach of the Northern Ireland Court of Appeal during the conflict. It charts the
developments in its decision-making following the cease-fires and the establishment of the
Criminal Cases Review Commission. It concludes that the current system is unsatisfactory as it
ignores the effects of the conflict on the appeal process and offers no insights into the role of the
Court during the conflict. Alternative models are suggested.
The history of miscarriages of justice in Britain has been shaped fundamentally
by ‘The Troubles’ in Northern Ireland. ‘Catalytic cases’1related to IRA bomb-
ings in England, such as the Guildford Four and Birmingham Six,2led to a crisis
of confidence in the criminal justice system in the early 1990s. In response to
these cases, the Royal Commission on Criminal Justice (RCCJ) was established,3
followed by the creation of the first state-funded body in the world to investigate
suspected wrongful convictions, the Criminal Cases Review Commission
*School of Law, University of Manchester. I would like to thank Justin Quirk for his robust
encouragement and the MLR reviewers and Conor Gearty for their comments.
1 A. Ashworth, The Criminal Process (Oxford: OUP, 2nd ed, 1998) 11.
2RvHill and others (1989) The Times 20 October 1989; RvMcIlkenny and Others [1992] 2 All ER
417. See also the ‘Maguire Seven’, RvMaguire (1992) 94 Cr App R 133 and Judith Ward, Rv
Ward [1993] 1 WLR 619. All were convicted of offences related to Irish Republican Army (IRA)
bombings in England.
3 The Royal Commission on Criminal Justice, Report Cm 2263 (1993). Sir John May also chaired
an inquiry into the Guildford Four and Maguire Seven cases (Sir John May, Report of the Inquiry
into the Circumstances Surrounding the Convictions Arising out of the Bomb attacks in Guildford and
Woolwich in 1974; Interim Report HC 556 (1989–90); Second Report HC 296 (1992–93); Final
Report HC 449 (1993–94).
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(6) MLR 949–980
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
(CCRC).4Cases linked to the Northern Ireland conflict subsequently defined a
miscarriage of justice for the purposes of the UK-wide statutory compensation
scheme.5Yet these cases were heard in the English courts, Northern Ireland was
omitted from the terms of reference of the RCCJ and, until recently, the CCRC
had relatively few applications from Northern Ireland. Whilst the ‘emergency
provisions’ that governed arrest, detention and trial in Northern Ireland were the
subject of numerous official reviews6and challenges in both the domestic courts
and the European Court of Human Rights (ECtHR),7the focus in such cases
was more on whether the measures infringed civil liberties generally than on
their risk of causing individual miscarriages of justice.8Although anyone con-
victed by a jury-less ‘Diplock’ court was entitled to an appeal as of right,9(rather
than having to follow the usual procedure of seeking leave from the Court of
Appeal or a certificate from the trial judge),10 surprisingly few took this route.
With little attention from Britain and an apparent lack of mobilisation in
Northern Ireland, as Dickson observes, ‘[a] myth has thus been constructed that
Northern Ireland has had very few, if any, such miscarriages.’11
The criminal justice and political landscape has changed dramatically in
Northern Ireland over the last two decades. Following the paramilitary cease-
fires and lengthy political negotiations, most of those imprisoned during
the conflict have been freed, either having served their sentences, or under
the early-release terms of the 1998 ‘Good Friday’ Agreement.12 As part of the
Agreement, there have been far-reaching reviews of policing and reforms of the
criminal justice system,13 but most of these chose to be ‘forward-looking’ rather
than to scrutinise the role of criminal justice actors during the conflict.14 Unlike
many other similar accords, the Agreement made no provision for the establish-
ment of a truth commission. In the absence of such an over-arching mechanism,
4 Criminal Appeal Act 1995, Part II.
R (Adams) vSecretary of State, Re MacDermott’s Application and Re McCartney’s Application [2011]
UKSC 18; [2011] 2 WLR 1180, (this case was ultimately decided by the Supreme Court but
started in Northern Ireland).
6Report of a Committee to Consider, In the Context of Civil Liberties and Human Rights, Measures to Deal
with Terrorism In Northern Ireland (Gardiner Report) Cmnd 5847 (1975); Report of the Committee of
Inquiry into Police Interrogation Procedures in Northern Ireland (Bennett Report) Cmnd 7497 (1979);
Review of the Northern Ireland (Emergency Provisions) Acts 1978 and 1987 (Colville Report) Cm 1115
(1990); Review of the Operation of the Northern Ireland (Emergency Provisions) Act 1978 (Baker Report)
Cmnd 9222 (1984).
7Ireland vUK (1978–80) 2 EHRR 25; Brannigan and McBride vUnited Kingdom (1994) 17 EHRR 539.
8 B. Dickson, ‘Miscarriages of Justice in Northern Ireland’ in C. Walker and K. Starmer (eds),
Miscarriages of Justice: A Review of Justice in Error (London: Blackstone Press, 1999) 287, 293.
9 Emergency Provisions Act 1973, s 2(6).
10 Criminal Appeal (Northern Ireland) Act 1968, s 8.
11 Dickson, n 8 above, 287. See also, J. Jackson and S. Doran, Judge without Jury: Diplock Trials in the
Adversary System (Oxford: OUP, 1995) 29.
12 The Belfast Agreement: An Agreement Reached at the Multi-Party Talks on Northern Ireland Cm 3883
(1998).
13 Patten Commission, A New Beginning: Report of the Independent Commission on Policing (Belfast:
TSO, 1999); Criminal Justice Review Group, Report of the Criminal Justice Review in Northern
Ireland (Belfast: TSO, 2000).
14 Criminal Justice Review Group, ibid, para 1.20.
Dealing with the Past in Northern Ireland
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
950 (2013) 76(6) MLR 949–980
there has been a myriad of initiatives for ‘dealing with the past’.15 These have
included public inquiries into controversial deaths,16 the work of the Office of
the Police Ombudsman,17 a ‘cold-case’ review led by the police officers of the
Historical Enquiries Team (HET),18 hearings before the Coroners’ Courts, and
civil society-led, ‘bottom up’ initiatives.19
It is within this political and legal context that the focus on historic miscar-
riages of justice in Northern Ireland has emerged. As the director of the
mainstream IRA ex-prisoners’ network has argued, applications to the CCRC
can serve as an informal truth recovery mechanism ‘to explore all the wrong-
doings that went on in the barracks and police stations’.20 Former Republicans
in particular appear to view the CCRC as a potential counterweight to what
they regard as the ‘one-sided,’ paramilitary-focused exploration of the past by the
Historical Enquiries Team. Indeed former IRA prisoners worked with local
lawyers and human rights activists to establish the Irish Centre on Wrongful
Convictions in 2012. This organisation was established to assist individuals in
submitting applications to the CCRC, to campaign for changes to how these
cases are investigated and to campaign for ‘an independent inquiry into police
brutality and judicial malpractice during the civil conflict’.21
The past three decades have seen an exponential growth in transitional justice
scholarship and policy that link the transitional process and ‘dealing with the
past’.22 Whilst the respective merits of prosecutions versus truth recovery have
been discussed extensively,23 and issues of amnesties or prisoner release feature
almost inevitably as part of any political settlement,24 there remains a significant
15 Justice (Northern Ireland) Act, 2002; K. McEvoy, Making Peace with the Past: Options for Truth
Recovery Regarding the Conflict In and About Northern Ireland (Belfast: Healing Through Remem-
bering, 2006); Consultative Group on the Past (CGP), Report of the Consultative Group on the Past
HC 171 (2009).
16 The Rosemary Nelson Inquiry, Report HC 947 (2011); The Report of the Patrick Finucane Review
HC 802-I (2012); The Billy Wright Inquiry, Report HC 431 (2010). Publication of the report of
the Robert Hamill Inquiry has been delayed pending the outcome of criminal proceedings, see
www.roberthamillinquiry.org (last visited 4 June 2013).
17 See www.policeombudsman.org (last visited 4 June 2013).
18 See www.psni.police.uk/historical-enquiries-team (last visited 6 March 2013); P. Lundy, ‘Explor-
ing Home-Grown Transitional Justice and Its Dilemmas: A Case Study of the Historical Enquiries
Team, Northern Ireland’ (2009) 3 International Journal of Transitional Justice 321.
19 B. Gormally and K. McEvoy, Dealing with the Past in Northern Ireland ‘From Below’: An Evaluation
(Belfast: CFNI, 2009).
20 Michael Culbert, Director of Coiste na n-Iarchimi, quoted in H. McDonald, ‘300 IRA members to
fight convictions and seek compensation’ The Guardian 25 August 2008.
21 See www.ic-wc.org (last visited 3 March 2013).
22 C. Bell, ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Non-Field”’
(2009) 3 The International Journal of Transitional Justice 5; P. Arthur, ‘How “Transitions” Reshaped
Human Rights: A Conceptual History of Transitional Justice’ (2009) 31 Human Rights Quarterly
321; R. G. Teitel, Humanity’s Law (New York: OUP, 2011).
23 See for example, N. Roht-Arriaza and J. Mariezcurrena (eds), Transitional Justice in the Twenty-First
Century: Beyond Truth versus Justice (New York: CUP, 2006).
24 K. McEvoy, ‘Prisoner Release and Conflict Resolution: International Lessons for Northern
Ireland’ (1998) 8 International Criminal Justice Review 33; L. Mallinder, Amnesty, Human Rights and
Political Transitions: Bridging the Peace and Justice Divide (Oxford: Hart Publishing 2008); K. McEvoy
and L. Mallinder, ‘Amnesties in Transition: Punishment, Restoration, and the Governance of
Mercy’ (2012) 39 JLS 410.
Hannah Quirk
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 951
(2013) 76(6) MLR 949–980
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