The House of Lords and the Northern Ireland Conflict
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01945.x |
| Published date | 01 May 1994 |
| Date | 01 May 1994 |
| Author | Stephen Livingstone |
THE
MODERN LAW REVIEW
Volume
57
May
1994
No.
3
The
House
of
Lords and the Northern Ireland Conflict
Stephen
Livingstone
*
Introduction
Northern Ireland is different,
so
everyone says. In the law it is clearly different,
different at least from the rest of the United Kingdom. Legal measures to deal with
the conflict that has claimed over
3000
lives in the past twenty-five years’ have
meant that in Northern Ireland alone in the United Kingdom serious criminal trials
are heard before a single judge without a jury. Furthermore, inferences may be
drawn from
the
silence of defendants in such trials2; confessions by defendants in
such trials may be admitted despite quite oppressive police interrogation3; and on
some charges the burden of proof is effectively shifted to the defendant.4 Powers
to stop, search and question are also considerably greater in Northern Ireland and
are exercised in a very different context of an armed police force aided daily by the
mi1ita1-y.~ Yet if Northern Ireland is different it is not separate. The Prevention of
*Centre for International and Comparative Human Rights Law, Queens University Belfast.
Previous versions of this paper have been given to the Irish Association of Law Teachers Conference in
Galway in December 1991 and to a seminar at University College London in January 1992.
I
am grateful to
those who participated in these conferences for their comments.
1 The 1992
Annual
Report
ofthe
Chief
Constable
ofthe
RUC
puts the total number of deaths related to
the security situation 1%9-92 at 3,028.
2 As a result of the Criminal Evidence (Northern Ireland) Order 1988. Its effect extends to all criminal
trials.
3
s
ll(2) of the Northern Ireland (Emergency Provisions) Act 1991 indicates that statements made by
the accused are admissible unless the accused produces
prima
facie
evidence that the accused was
subject to torture, inhuman or degrading treatment or to violence or the threat of violence in order to
induce him to make the statement. Where such evidence
is
adduced, the prosecution has the burden of
disproving it.
S
I
l(3) also gives the judge power to exclude a statement if it appears appropriate to do
so
in order to avoid unfairness to the accused or otherwise
in
the interests of justice. This can be
contrasted with Article
74
of the Police and Criminal Evidence (Northern Ireland) Order 1988 which
provides for confessions to be excluded where there is evidence it was obtained
by
oppression or by
anything done or said which was likely to render the confession unreliable unless the prosecution
establish beyond reasonable doubt that the confession was not
so
obtained.
4
For example,
s
12 of the Northern Ireland (Emergency Provisions) Act 1991 indicates that where a
person is charged with possession of a ‘prescribed article’ (which includes firearms and explosives)
and either he and the article are found at the same place or the article is found in a place
of
which he is
the occupier or habitually used other than as a member of the general public, the court may accept this
as sufficient evidence of possession unless the accused proves otherwise.
5
These powers are contained in the Northern Ireland (Emergency Provisions) Act 1991 and the
Prevention of Terrorism Act 1989. The latter applies throughout the United Kingdom but is used more
extensively in Northern Ireland. For a discussion of these powers,
see
Hogan and Walker,
Political
Violence
and
the
Law
in Ireland
(Manchester: Manchester University Press, 1989) Ch 2; Walsh,
333
0
The Modern Law Review Limited
1994
(MLR
57:3,
May). Published by Blackwell Publishers,
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Cowley
Road,
Oxford
OX4
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and
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The Modern Law Review
[Vol.
57
Terrorism Act, with its powers to detain people for up to seven days, extends
throughout the United Kingdom, as does the ban on IRA, Sinn Fein, UDA and
UVF representatives being directly quoted on TV or radio. Miscarriages of justice
in Northern Ireland related cases have had a major impact on the public perception
of the criminal justice system in England and Wales and led to the setting up of the
Royal Commission on Criminal Justice.6
Another way that Northern Ireland is not separate is that the House of Lords
remains the final court of appeal for most issues within the Northern Ireland legal
system.’ Hence, within the domestic system at least, it is the final legal arbiter on
issues arising from the conflict and the legal response to it. Perhaps somewhat
surprisingly, given the longevity of the conflict and the many legal issues it has
thrown up, only thirteen cases have reached the House of Lords in this time which
touch directly or indirectly on terrorism and legal measures taken to deal with it.
Many of these cases
also
raise significant issues of human rights and hence the
approach of the House of Lords to them is of interest not
only
to students of the
Northern Ireland conflict but also to all those interested in the way in which the
highest judiciary in the United Kingdom sees the judicial role
as
regards defining
and protecting human rights.
This article examines the jurisprudence of the House of Lords in respect of
Northern Ireland and compares it with that of other supreme courts in times of
emergency. It endorses the views of those who find the record an undistinguished
one.8 The decisions show a consistent failure to recognise, let alone fully
consider, the human rights implications, and are frequently unsatisfactory even as
regards their technical aspects of reasoning and explanation. Comparison with
other supreme courts in times of emergency shows that the House of Lords has by
no means proved the worst but that better examples are available. Indeed, in
respect of Northern Ireland both the Northern Ireland Court of Appeal and the
European Court of Human Rights have given a more impressive performance, a
pattern that can
also
be fund elsewhere
in
judicial responses to states of
emergency. Above all, these cases, where claims of human rights and of the need
for their restriction are sharply and intensely opposed, demonstrate the need for
those who call for a Bill of Rights in the United Kingdom to consider carefully the
potential and limitations of judicial enforcement of such a Bill. This is not to reject
the idea of a Bill of Rights nor to argue that judges should have no role in its
enforcement. Indeed, the evidence from Northern Ireland does not indicate that
other branches of government will be more assiduous in their protection of human
rights. It is merely to suggest that informed debate is essential on what that judicial
role might be and how judges should play it.
~ ~~
‘Arrest and Interrogation’ in Jennings
(ed),
Justice
Under
Fire:
The
Abuse
of
Civil Liberties in
Northern
Ireland
(London: Pluto
Press,
1990) Ch 2.
6 Cm 2263 (London:
HMSO,
1993).
7
See
Dickson, ‘Northern Ireland’s Troubles and the Judges’ in Hadfield
(ed),
Northern
Ireland:
Politics
and
the Constitution
(Buckingham: Open University Press, 1992) p 130, for the structure
of
appeals
from Northern Irish
courts.
8 See,
for
example, Dickson,
op cit
n
7,
pp 136- 138, and Hill and
Lee,
‘Without
Fear
or Favour?
Judges and Human Rights in Northern Ireland: A Subjective Essay’ in
Eighteenth Report
of
the
Standing Advisory Commission on Human Rights,
HC 739 (Belfast:
HMSO,
1993)
Appendix B, P.81,
97.
334
0
The
Modem
Law
Review
Limited
1994
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