Freedom, Security and Justice after Amsterdam

Inquiry Call into Murder Cover-up

US Lawyers Scrutinise Irish Emergency Laws

Emergency Setback for Rights

Offences Against the State (Amendment) Act 1998

Acute Need for Reform of Asylum Process

Torture Committee Visits Ireland

The Erosion of Rights

Minimum Sentencing - The Case Against

Debate Needed Now on Human Rights Commission

The Law on Sexual Offences, A Discussion Paper

Supergrasses Once Again

Political Liberalism

Children’s Rights Alliance Inaugural Conference

ICCL Update

 

United States Congress Endorses RUC Reform
On Tuesday, September 29th the House Sub-committee on International Operations and Human Rights met to discuss the findings of the recent report of the Special Rapporteur on the Independence of Judges and Lawyers, Param Cumaraswamy. He had conducted an investigation into the harassment and intimidation of defense lawyers in Northern Ireland by the RUC, and allegations of state involvement in the murder of the Belfast lawyer, Patrick Finucane.

The hearing was convened by the House Sub-Committee on International Operations and Human Rights, which has investigated human rights abuses in Northern Ireland on a number of previous occasions. Its chairman, Christopher Smith, has a keen interest in human rights world-wide, and undertook an official visit to Northern Ireland last year when he met with the Chief Constable Ronnie Flanagan and NIO officials, as well as local lawyers, NGOs, and relatives of those deeply affected by the conflict.

During the course of the hearing, the Special Rapporteur told the House Sub-Committee that he had spent some time in Belfast investigating the allegations of intimidation and harassment of defense lawyers by the RUC. Having done so, he stated that he was "satisfied that there was truth in the allegations that lawyers were harassed."

In relation to the murder of Patrick Finucane, he stated that in respect of the surrounding allegations he was "convinced that there were compelling reasons for an inquiry." This, he said, was because of "prima facie evidence that there could have been security forces collusion."

In addition to the Special Rapporteur, the House also heard testimony from two defense solicitors who had experienced RUC intimidation first hand. Belfast solicitor, Peter Madden, stressed the need for radical reform of the RUC due to the fact that they had failed to properly act impartially when discharging their duties. Mr. Madden also expressed his concerns that the current review of the RUC would concentrate too much on downsizing and not on meaningful reform. Mr. Madden stated that this would also have to happen, but what remained would "have to be a police service which has a proportion of Nationalists reflecting their percentage of the population."

The Portadown solicitor Rosemary Nelson testified to threats made to her by members of the RUC, as well as a physical assault on her during the Drumcree march last year by RUC officers whose role was to preserve order during the highly contentious parade. Ms. Nelson referred to the fact that she felt particularly under threat due to her representation of the residents of the Garvaghy Road, as well as the family of Robert Hamill, the Portadown teenager murdered while an RUC patrol vehicle stood idly by. Ms. Nelson stated that the RUC "needs fundamental change and also reform of the culture of the organization."

The final speaker before the House Sub-Committee was the legal officer of the Committee on the Administration of Justice (CAJ), who spoke of the need for respect for human rights as a key element of resolving the conflict for good. Mr. Mageean pointed out that protections for human rights are provided for specifically in the Belfast Agreement, and that failure to recognize the importance of fulfilling this part of the agreement could lead to problems at a later stage. Human rights abuses of the past could, he said, could have a positive effect in showing how they might be avoided in the future. In one such example, Mr. Mageean pointed to the abysmal record of the Independent Commission for Police Complaints, which in 1997 received a total of 5500 complaints against RUC officers. From this total, the Commission upheld only one civilian complaint. This was a clear example, he said, of the need to implement the provisions of the Belfast Agreement in a meaningful way, with a strong, competent Human Rights Commission, as well as a proper review of key institutions such as policing.

Concluding the hearing, Congressman Smith thanked all the participants and in particular thanked many of the observers who had travelled from both Belfast and London to be present during the hearing. He promised to do all he could in the future to ensure that human rights were paid proper tribute in the construction of a new, peaceful Northern Ireland society. In added closing remarks, Congressman Ben Gilman - the Chairman of House Committee on Foreign Relations – stated that his Committee would be holding a further hearing in the New Year that would specifically examine the area of policing in Northern Ireland. Congressman Gilman also expressed the hope that the United States could "work with the Irish Republic and Westminster for the repeal of emergency laws."
Michael Finucane

 

Freedom, Security and Justice after Amsterdam
A report on the conference organised by the Irish Centre for European Law, Dublin and the AIRE (Advice on Individual Rights in Europe) Centre, London, with the support of the European Commission through the Binding Europe Together programme.

The conference was held in Trinity College, Dublin on Saturday October 31. Nora Owen T.D. chaired, and the event was introduced with an overview of the provisions relating to Freedom, Security and Justice in the Treaty of Amsterdam (ToA) by Anthony Collins BL, Director of the Irish Centre for European Law. The morning presentations consisted of two parts; the first focused on police and judicial co-operation under the ToA provisions, the second addressed immigration, asylum and visa issues.

 The advent of the ToA provisions, which are expected to come into force by June 1999, will allow Community law a role in the sphere of criminal matters for the first time. The ToA restructures the Third Pillar of the European Union, to be renamed Police and Judicial Co-operation (PJCC), by transferring certain of the competencies formerly dealt with under the intergovernmental Justice and Home Affairs (JHA) Pillar to the First pillar - the Communities Pillar. These changes amount to "nothing short of a legal revolution", in the opinion of Mr Collins.

 Concern was expressed over the operation of judicial co-operation in the Irish context. Unlike criminal investigations and prosecutions under the continental legal systems, which are primarily carried out by professional magistrates, the Irish system does not involve the judiciary in these areas. Indeed Irish judges are required to be totally independent of the prosecutor in criminal cases. This is an obvious difficulty which faces any attempt to harmonise the criminal laws and procedures in the member states of the European Union. Mr Collins noted that it would obviously be easier to work from a system which operates in thirteen member states when attempting such harmonisation, rather than the system operated only in Ireland and the United Kingdom.

 Ms Nuala More, Director, AIRE Centre London, traced the history of judicial co-operation at the political level within the Community to as far back as 1967. Although, in her view, such co-operation, and indeed the establishment of Europol, were necessary at European level she expressed concern that there should be proper safeguards governing their operation. The necessity of adequate safeguards would be particularly important following the coming into operation of the ToA. Under Article 30 of ToA, Europol's mandate is to be extended to cover individuals suspected of being engaged in inter alia terrorism, signifying, in Ms More's opinion, a change in function from that of "a liaison body to a directly operating police force". Ms More voiced concern over the question of access to information held in the European Information System (EIS), under which information may be stored on an individual charged with a crime, though not convicted. The fact that information clearly obtained by illegal measures is not prohibited under the system, but rather must be marked as having been obtained in this manner, is obviously an issue that requires further examination.

Ms Catherine Costello, lecturer in EU Law, TCD, raised additional questions on the safeguarding of human rights under the newly structured Third Pillar, in particular in relation to the operation of Europol. The role of the European Court of Justice in the protection of human rights in this sphere was explored. The ECJ is now granted a limited jurisdiction over the operation of Third Pillar, and in examining the limitations placed on the ECJ in this context Ms Costello concluded that there was a "serious lacuna in robust judicial review". She expressed the hope that the ECJ would interpret the restrictions on its own jurisdiction in this regard very narrowly.

In the second part of the conference, Ms More spoke of the implications of the ToA for entry and residence in Ireland and Britain. The ToA provides that, immigration and asylum issues will also be transferred from the Third Pillar to the First Pillar, under new Title 3A. Importantly however, the United Kingdom and Irish governments obtained an opt out to these provisions under two Protocols to the ToA. The UK sought the right to continue immigration controls at its ports of entry, and Ireland's decision to opt out of this area was based on the special relationship that exists in relation to the free movement of persons between the two countries.

Mr Diarmuid McGuinness SC, traced the history of the operation of the Common Travel Area (CTA) - as far back as the Norman invasion of Bannow Strand, Wexford in 1169 ! The significance of the ToA’s two Protocols, to the continuance of the CTA was examined. Mr McGuinness concluded by stating that, in his view, the CTA was very likely to continue for a long time to come, given that it is improbable that Ireland will give it up unilaterally, or that the UK will surrender the right to continue border controls in the near future.

Nora Owen summed up the morning as "time well spent", and stressed that the areas covered in the conference merited a great deal more public discussion. I agree with her on both points - it was indeed a very informative conference, and the implications for human rights as a result of the amendments under ToA deserve careful examination.
Catherine Lynott
 [Copies of the papers delivered at this conference can be obtained from the ICCL office.]

 

Inquiry Call into Murder Cover-up
ICCL has been contacted by the family of Louth man Seamus Ludlow who was found murdered near the Dundalk-Newry road in May 1976. Mr Ludlow had no connection with any paramilitary group but Gardai appear to have treated the case as an IRA murder of an informer, causing a lot of grief and pain to his family.

To make things worse, the family were not contacted in time about the inquest and were unable to be present or to have questions asked for them.

Recent press revelations have indicated that Mr Ludlow was a random and completely innocent victim of members of a loyalist paramilitary group from Northern Ireland. It also appears that Gardai knew about this shortly after the murder but did not inform the dead man’s family or lift the cloud of suspicion in the local area. Instead they seem to have closed their file on the case.

There are suspicions that the whole episode was covered up because one member of the murder gang may have been an informer for the RUC in the North.

Prompted by the press revelations the Gardai have recently begun an internal inquiry into the case and the findings seem to support the family’s claims, but the family want an independent inquiry set up with the power to get at the truth behind the cover-up

ICCL supports the call for an independent inquiry into the murder of Seamus Ludlow and its subsequent handling by Gardaí. The Ludlow family are entitled to know the truth about his murder and its apparent cover-up and it is no good having the police investigating the police. The inquiry should be completely independent and headed by a judge or a senior lawyer. Maybe that would set a precedent for other inquiries into Garda conduct instead of the ineffectual Garda Complaints Board.

ICCL UPDATE
Office personnel
Shivaun Quinlivan commenced work as Administrative Assistant with ICCL in late September. We would like to acknowledge the continuing support of FAS, which has enabled ICCL to benefit from Shivaun’s knowledge and experience in the field of human rights.

Malachy Murphy, reports on his recent visit to the International Federation of Human Rights Leagues
The week after the Oireachtas passed the Offences Against the State (Amendment) Act, which contained the new emergency powers, I happened to be in Paris on a holiday. As I had been in contact with Isabel Plisseaneau (of the FIDH) during the previous week discussing the new emergency powers we had arranged to meet in the FIDH.

I found the FIDH’s stylish offices, which are down an alley near the Bastille, easily enough. The meeting lasted about 2 hours and as well as discussing the new emergency powers I was also able to update her on the current situation in Northern Ireland in relation to the Good Friday Agreement and its implementation.

Isabel was able to explain to me how emergency powers similar to those introduced in Ireland are being used in France in cases involving alleged Islamic terrorists. At present over 180 people are being tried on terrorist offences in a mass trial which is being held in a converted gymnasium near Paris. Some of the people on trial there are accused of association and they were arrested because their addresses or phone numbers were found in the homes of people charged with terrorist offences.

A number of things struck me about my short visit to the FIDH’s offices. Firstly, I was impressed by the degree of interest which they have in the national organisations which are affiliated to them and that they really appreciate contact with groups like us. Secondly, the differences between criminal justice systems in different countries, even two countries which are both members of the EU such as Ireland and France, were really brought home to me (a non-lawyer). Concepts which are familiar to someone with knowledge of the Irish legal system just don’t exist in France and vice versa. In this kind of environment it’s not easy to draw parallels between the legal systems in different countries.

After my visit an article which put forward ICCL and CAJ’s views on the emergency legislation appeared in the FIDH’s fortnightly newsletter.

 

US Lawyers Scrutinise Irish Emergency Laws
ICCL met a delegation representing the New York Bar Association in Dublin at the end of October. Prior to coming to Dublin, the delegation visited London and Belfast where they consulted with our sister organisations and with the authorities on the emergency legislation in the North. The purpose of the Dublin meeting was primarily to compare and contrast the emergency legislation in force in the Republic but also to scrutinise recent incursions into the rights of individuals. The delegation comprised five high-ranking American lawyers:

  • Sidney Stein, a US Federal Judge on the District Circuit,

  • Barbara Jones, also a US Federal Judge on the District Circuit,
  • Paul Robinson, attorney-at-law and former
  • President of the NY bar Association,
  • Gerald Conroy, an Assistant District Attorney, and
  • Peter Eikenberry, attorney-at-law.

ICCL briefed the delegation on the Offences Against the State (Amendment) Act, 1998 and other emergency legislation, informing them of the recent calls for the introduction of internment following the Omagh bombing. We highlighted the continued existence of the non-jury Special Criminal Court, and its use in non-terrorist cases despite the lack of proof of jury tampering in this jurisdiction. The delegation also expressed an interest in the erosion of the right to silence, as evidenced by the Drug Trafficking Act, the OAS Amendment Act and recent SMI proposals.

 ICCL pointed to a practical example of the use of emergency legislation after the murder of Garda McCabe. We discussed the recent challenge to the new emergency legislation in the Deaglan Lavery case (reported in the Irish Times, October 3rd) where the High Court held that a person arrested under the new emergency legislation was in a "special difficulty" as opposed to persons arrested under other Acts in trying to know what information must be volunteered, and that the notes of the interviews should be available to the solicitor during consultations with his client. The US delegation inquired about the Garda Complaints mechanism, conditions and access to detainees in Garda stations.

 The US delegation plans to publish a report of their visit in the Spring, which we hope will be widely publicised here. The value of independent outside assessments of our criminal justice system cannot be underestimated : apart from enabling us to put our system in context, it can provide a valuable lobbying tool for NGOs and other concerned organisations. It can also be a major source of embarrassment for a Government , which may eventually lead to change.

Michael Farrell, Siobhán Ní Chúlacháin, Michael Finucane and Aileen Donnelly represented the ICCL.

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