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Report of an Amnesty International Mission to Northern Ireland (28 Nov - 6 Dec 1977)



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CHAPTER IV

The Law

Three aspects of the legal situation in Northern Ireland have a direct bearing on the allegations of maltreatment described in the previous chapter: the procedure for arrest and detention, including provision for access to persons in police custody; the legislation and practice in regard to admissibility of statements made by individuals charged with scheduled offences; and the machinery for investigating complaints against the police of assault during interview.

Arrest and Detention

Under the Emergency Provisions Act 1973 and the Prevention of Terrorism Act 1976, suspected terrorists may be held for up to 72 and 48 hours, respectively. Under the Prevention of Terrorism Act a suspect may be held for a further five days if the Secretary of State for Northern Ireland issues an extension order.

After arrest under either act, immediate re-arrest under the other act is unlawful.

The army has been given very wide powers of arrest without warrant, but can hold a suspect for a maximum of four hours only.

It is virtually impossible to challenge an arrest under the Emergency Legislation.

In most of the 78 cases examined by the delegates, and on which data regarding length of detention was available, suspects were held for the full three days under the Emergency Provisions Act, or had been held for an extended period after an arrest under the Prevention of Terrorism Act (See also Annexe I).

Access to Solicitors and other outside persons

The following principle, referred to in the preamble to the Judges Rules[1] is unaffected by the emergency legislation.

"(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is even so if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so."

Lawton LJ delivering the judgement of the court in R. v. Lemsatef (1977) 2 All ER 835 and 840, stated: "This court wishes to stress that it is not a good reason for refusing to allow a suspect, under arrest or detention, to see his solicitor, that he has not yet made any oral or written admission".

None of the 78 persons whose cases were examined by the mission was allowed to see a solicitor during their period in police custody; in most of these cases it was stated specifically that the arrested person requested a solicitor soon after arrest. The mission found that in Northern Ireland denial of access to solicitors to persons arrested under the provisions of emergency legislation is standard practice.

Formally, it is the investigating officer who decides in each case whether access to a solicitor would cause unreasonable delay or hindrance.., to the process of investigation or the administration of justice". But it appears that in Northern Ireland, in cases of arrests under emergency legislation, it is held that access to a solicitor is of itself such a hindrance.

The apparent decision, not based upon any consideration of the case in question, never to allow suspects arrested under the emergency legislation access to a solicitor while in police custody is in breach of a fundamental principle of common law. It gives rise to an inference, whether or not justified, that not all statements are made voluntarily.

A group of solicitors, stating to Amnesty International that between them they "probably do over 90% of all the cases which are giving rise to the present difficulties, and.. .come from all parts of Northern Ireland" approached the Secretary of State for Northern Ireland after a meeting held early in November. They stated their conviction that "ill-treatment of suspects by police officers, with the object of obtaining confessions, is now common practice", and mentioned the denial of access of solicitors to their clients as one of three factors "of extreme importance". (The other factors mentioned, the changes in law relating to the admissibility of statements in court and the complaints procedure will be discussed below).

No legal sanction exists to prevent this breach of a principle of common law. Although denial of access to a solicitor could be a factor that might render a statement inadmissible, the rules on admissibility of statements in the non-jury court have been altered with the effect that even this safeguard has been removed (see below, under Admissibility of statements in evidence in the non-jury courts; Judges’ Rules).

Access by a suspect to his own doctor is allowed under certain restrictions (See Chapter I, page 5). A police doctor is present during the visit and may intervene if leading questions are put. This access was only granted after complaints had been made to the Chief Constable, in the late summer of 1977.

Although the majority of persons whose cases were examined by the mission stated that they saw an outside doctor at some stage during their detention in police custody, in cases of arrest prior to September 1977 they appeared to have had some difficulty in gaining prompt access to an outside doctor.

Twenty-six of the 39 persons on whom the mission examined medical reports were arrested before September 1977 (the majority between February and August 1977). Seventeen of these persons alleged that they did not see an outside doctor until at least the third day of detention and in many of the cases not until later than this: eight of them, including four persons detained for the full seven days, said they did not see an outside doctor until after their release from police custody - -in at least one of these latter cases the doctor himself stated in his report that he went to the police station twice at the request of the family but was told- by the police that the person under arrest did not need, and had not asked for, an examination (the arrested person states in his affidavit that he asked for his doctor several times). In at least two other cases it was stated that early attempts by doctors to gain access were refused by the police and the doctors admitted only on the fourth and fifth days of detention respectively; in a further two cases the arrested persons own doctors were unable to come at the time requested. In five cases there is no information regarding the time of the medical examination by an outside doctor.

In September 1977 the Chief Constable of the RUC issued instructions to police stations stating that arrested persons should be allowed to see a doctor of their choice at the request of their solicitor, near relatives or other "genuine representatives". Thirteen of the 39 cases where medical evidence was examined by the mission consisted of persons arrested between August and December 1977, inclusive. Of these 13 cases, six said that they saw an outside doctor soon after, or on the day of, arrest. This was in several cases not their own doctor but another doctor brought in at the request of a solicitor. Three of the 13 persons stated that an outside doctor did not arrive until the evening of the second day of arrest and in two cases it was stated that the doctors were unable to attend until the third day of arrest. Two persons said that they did not see an outside doctor for reasons unknown while detained in the detention centre (in these cases the medical reports examined by the mission are reports of treatment in hospital).

In several cases examined by the delegates, minors had been interrogated without the presence of a parent or guardian, although the Administrative Directions to the Police, circulated with the Judges’ Rules, state that:

"As far as practicable children (whether suspected of crime or not) should only be interviewed in the presence of a parent or guardian, or, in their absence, some person who is not a police officer and is of the same sex as the child."

Thus, in most of the cases examined the arrested persons spent at least the first three days and sometimes longer, in almost total isolation from outside persons, and in every case access to a solicitor was denied. This isolation from outside persons such as lawyers and members of their families may make it subsequently difficult for the courts to arrive at a fair judgement of the detained person’s allegations of maltreatment and police denials.

Footnote:
[1] The Judges’ Rules were drawn up to give guidance to police officers engaged in the investigation of crime. They were first drawn up by the judges of the Kings Bench Division between 1912 and 1918; the Rules applicable in Northern Ireland at present are those issued in a Home Office circular in 1964.


Admissibility of statements in evidence in the non-jury courts; Judges’ Rules

Most of the persons whose cases were examined by the mission alleged that the maltreatment described in Chapter III was undertaken in order to induce them to make self-incriminating statements or confessions. The need for the RUC to obtain confessions has already been mentioned (Chapter I, page 2) and is reflected in the very high number of persons who are convicted on the basis of their own self-incriminating statements. The suspicion that led to the arrest of a person is often based on intelligence information that cannot be used as evidence in court.

The police in Northern Ireland are instructed to follow the 1964 Judges’ Rules and administrative directions when interrogating and taking statements from persons suspected of being involved in crimes and the Secretary of State for Northern Ireland, in replying in late 1977 to a letter by the group of solicitors who expressed their concern, stated that the Judges’ Rules "apply equally to Northern Ireland as they do throughout England and Wales".

However, the Judges’ Rules do not purport "to control or in any way initiate or supervise police activities or conduct". They explain "to police officers engaged in the investigation of crime the conditions under which the courts would be likely to admit in evidence statements made by persons suspected of or charged with crime, and to ensure that any statement tendered in evidence should be a purely voluntary statement and therefore admissible".

At Common Law:

"it has always been a fundamental principle of the courts, and something quite apart from the Judges’ Rules of Practice, that a prisoner’s confession outside the court is only admissible if it is voluntary." (R. v Smith (1959) 2q.B. 35; viz. also: Ibrahim v. R. (1914) A.C. 599; R. v. Richards (1967) 1 W.L.R. 653).

The Judges’ Rules are construed within the following overriding principle:

"That is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained ‘from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority or by oppression."

The Judges continue:

"The principle set out in paragraph (e) above is overriding and applicable in all cases. Within that principle the following Rules are put forward as a guide to police officers conducting investigations. Non-conformity with these Rules may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings."

In applying the Judges’ Rules the courts have a discretion, but once it has been established that a statement was not made voluntarily, they must exclude the statement. The normal test is that a statement should not have been obtained "by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression". The circumstances that may constitute oppression are many, such as the length and number of interviews, the period in between, refreshment, etc., and also depend on the characteristics of the person who makes the statement (viz. Sachs J. in R. v. Priestley (1956) 51 Cr. App. Rep. 1).

In Northern Ireland terrorist offences are tried in non-jury courts before a single judge. In such cases the rules governing the admissibility of statements have been changed and much is now admissible that previously must have been excluded. Section 6 of the Northern Ireland (Emergency Provisions) Act 1973 provides:

"6. (1) In any criminal proceedings for a scheduled offence a statement made by the accused may be given in evidence by the prosecution insofar as it is relevant to any matter in issue on the proceedings and is not excluded by the court in pursuance of subsection (2) below.

(2) If, in any such proceedings where the prosecution proposes to give in evidence a statement made by the accused, prima facie evidence is adduced that the accused was subjected to torture or to inhuman or degrading treatment in order to induce him to make the statement, the court shall, unless the prosecution satisfies them that the statement was not so obtained, exclude the statement or, if it has been received in evidence, shall either continue the trial disregarding the statement or direct that the trial shall be restarted before a differently constituted court (before whom the statement in question shall be inadmissible)."

Although therefore oppressive questioning is still contrary to avowed police policy, the sanction of exclusion of confessions so obtained has been removed in certain cases and the prosecution no longer has to prove that the statements tendered in evidence were made voluntarily.

It should be pointed out that it was exactly this sanction that caused the Judges to draw up the Judges’ Rules. Even the limited protection of the Rules has therefore been nullified.

As has been mentioned, a majority of the convictions in the non-jury courts are based on a confession. In cases relevant to this report arguments centre on whether injuries sustained in police custody were due to maltreatment of a suspect by the police or were self-inflicted.

The onus of proof for the defense is to adduce prima facie evidence that a statement was obtained as a result of treatment contrary to section 6 of the Emergency Provisions Act, The Crown can then rebut this only by proving beyond reasonable doubt that the statement was not so obtained. The last is in line with the normal standard of proof required of the prosecution in voir dire[1] cases related to confessions (viz. Cross, On Evidence, 4th ed., pp. 64-65).

A statement, once admitted, is not incontrovertible evidence.

The mission was informed by the authorities that:

"It would still be open to the accused to deny the truth of the statement, to give evidence as to the circumstances in which the statement was made, or otherwise demonstrate that no weight should be attached to it. All of this might be directed at establishing either that his alleged statement had not been made, or that, if it had, no reliance should be placed on it because of the way in which it has been obtained. After all the evidence it would be for the judge to decide whether the statement had been made, and, if so, what weight he should place on it in reaching his judgement.

It is normally the jury that decides upon these matters. In the words of Lord Parker, C.J.:

"The position now is that the admissibility (of a confession) is a matter for the judge; that it is thereafter unnecessary to leave the same matters to the jury; but that the jury should be told that what weight they attach to the confession depends upon all the circumstances in which it was taken, and that it is their right to give such weight to it as they think fit." (1968, 2 Q.B. 112, at p. 117-118, quoted by Cross, p. 63.)

Cross goes on to remark:

"Trials within the trial are...something of an unreality in cases tried before Magistrates because the question of admissibility has to be determined by the same tribunal as that which pronounces on liability.

The same applies to non-jury courts in Northern Ireland, but of course the scheduled offences are much more serious than summary offences.

No case has been brought to Amnesty International’s attention where an accused was acquitted though his confession was ruled admissible. In cases where a confession is the only evidence tendered by the prosecution and challenged by the defence as obtained contrary to section 6, the voir dire case is in fact the only real issue.

It was pointed out to the delegates that the courts have retained a discretion to exclude a confession if the admission of it in evidence would operate unfairly against the accused. The existence of this judicial discretion was restated by Lord Justice McConigal in R. v. McCormick and others in a judgement delivered on 19 May 1977, (1977) N I. 4.

This does not however mean that the judges will use their discretion in the same way in the non-jury court where section 6 is applicable, as they would in a normal criminal court in applying the Judges’ Rules.

Indeed it is clear from the Diplock Report[2] that the introduction of section 6 should serve explicitly to change law and practice regarding the admissibility of statements:

"We consider that the detailed technical rules and practice as to the ‘admissibility’ of inculpatory statements by the accused as they are currently applied in Northern Ireland are hampering the course of justice in the case of terrorist crimes and compelling the authorities responsible for public order and safety to resort to detention in a significant number of cases which could otherwise be dealt with both effectively and fairly by trial in a court of law." (paragraph 87).

The Lord Chief Justice, after confirming that "there is always a discretion, unless it is expressly removed, to exclude any admissible evidence on the ground that (by reason of any given circumstance) its prejudicial effect outweighs its probative value and that to admit the evidence would not be in the interest of justice", stated this unequivocally in R. v. Corey and others (delivered 6 December 1973)

"Accordingly, section 6(2) would merely be a statement of the obvious if it did not, in conjunction with section 6 (1) render admissible much that previously must have been excluded. There is no need now to satisfy the judge that a statement is voluntary in the sometimes technical sense which that word has acquired in relation to criminal trials."

In a judgement delivered on May 19, 1977 (R. v. McCormick and others (1977) NI.4) McGonigal L.J. discussed section 6 extensively. This case deserves examination in some detail.

The judge states that Parliament in using the words ‘torture, inhuman and degrading treatment’ in section 6, "was impliedly permitting or overlooking conduct of a lesser degree which could still be objectionable and indeed even of a grave degree so long as not carried out for the purpose of inducing a statement even though that might be the effect of it"

Referring to the case of the Republic of Ireland against the United Kingdom and the Greek case, he concludes that:

"the meaning assigned to the terms by the European Commission on Human Rights is, at the least, of very persuasive effect, if not definitive, in determining the meaning to be given to these same terms as used in Section 6."

He quotes the Commission as follows (Ireland against the United Kingdom, p. 377):

"Finally, the Commission distinguished in the Greek Case between acts prohibited by Article 3 and what it called ‘a certain roughness of treatment’. The Commission considered that such roughness was tolerated by most detainees and even taken for granted. It ‘may take the form of slaps or blows of the hand on the head or face. This underlines the fact that the point up to which prisoners and the public may accept physical violence as being neither cruel nor excessive varies between different societies and even between different sections of them’. (Yearbook 12, The Greek Case, p. 501)."

This interpretation of the Convention by the European Commission on Human Rights according to McGonigal L.J.

"appears to accept a degree of physical violence which could never be tolerated by the courts under the common law test and, if the words in section 6 are to be construed in the same sense as the words used in Article 3, it leaves it open to an interviewer to use a moderate degree of physical maltreatment for the purpose of inducing a person to make a statement."

He concludes:

"It appears to me that this is the way the words must be construed and that that is the effect of the section. A statement which is made is admissible under the section, however induced, unless induced by conduct falling within the descriptive terms ‘ torture, or inhuman or degrading treatment’ in the sense used in the section and it is only excluded by the section even in those three cases if the acts complained of were acts done in order to induce the statement."

He goes on to say:

"That does not mean, however, that these courts will tolerate or permit physical maltreatment of a lesser degree deliberately carried out for the purpose of or which has the effect of inducing a person interviewed to make a statement."

and points to the Judges’ discretionary powers "which provide an extra- statutory control over the means by which statements are induced and obtained."

However,

"If he exercises his discretion without regard to section 6 he will in all probability exclude statements obtained in circumstances not considered by Parliament to warrant exclusion. It would indeed not be difficult to envisage cases of maltreatment falling short of section 6 conduct, which the trial judge could consider would be sufficient to justify the exercise of his discretion. The effect of the exercise of the discretion if unfettered by the existence of section 6 might be, therefore, to negative /sic/ the effect of section 6 and under the guise of the discretionary power have the effect of reinstating the old common law test insofar as it depended on the proof of physical or mental maltreatment. In my opinion the judicial discretion should not be exercised so as to defeat the will of Parliament as expressed in the section. While I do not suggest its exercise should be excluded in a case of maltreatment falling short of section 6 conduct, it should only be exercised in such cases where failure to exercise it might create injustice by admitting a statement which though admissible under the section and relevant on its face was in itself, and I underline the words, suspect by reason of the method by which it was obtained, and by that I do not mean only a method designed and adopted for the purpose of obtaining it, but a method as a result of which it was obtained. This would require consideration not only of the conduct itself but also, and since the effect of any conduct varies according to the individual receiving it, possibly equally important its effect on the individual and whether to use the words of the Commission Report already referred to the maltreatment was such as to drive the individual to act against his will or conscience. It is within these guidelines that it appears to me the judicial discretion should be exercised in cases of physical maltreatment.

The direct reference to the Report of the European Commission on Human Rights fails to note the fundamental difference between the tests applied in national and international law. In order to generate international concern a much greater infringement of a person’s rights and freedom is necessary than would warrant interference by a judge upholding the rule of law on a national level. The interpretation of section 6 given by McGonigal L.J. erodes the protection of suspects from mal-treatment by the police.

The practice of the courts is very difficult to assess -the more so since very few cases are reported. Many points may bear upon the ruling in the voir dire issue - often decisive for the case - such as:

-

whether the accused accepted or refused medical examinations;

-

whether the accused gave evidence of treatment contrary to section 6;

-

whether the Crown argued that the injuries were self-inflicted and, in close connection with that;

-

the impression the accused on the one hand and Crown witnesses on the other made upon the judge.

In some cases, the judge considered that to hold that the injuries were inflicted by the police implied that Crown witnesses were lying and subsequently ruled statements admissible (this occurred, for instance, with relation to one statement in the case just described). But this is a confusion: to exclude a statement because the Crown cannot discharge the onus of proof laid upon it by section 6 is in no way to find that the allegations were true. This is duly recognized in, for instance, R. v. Colm Caughey and Francis Bannon (judgement of Jones, L.J., delivered 17 June 1977).

It would appear, even on the limited evidence available, that the practice of the courts is neither uniform nor consistent.

Section 6, in the above-mentioned interpretation, and in particular if seen in relation to the absence of a jury, reduces procedural safeguards and extends the discretion of the single judge. It enhances the danger that statements obtained by mal-treatment of suspects will be used as evidence in court.

The group of solicitors that approached the Secretary of State for Northern Ireland in November 1977 stated that "no other single factor has been more conducive to ill-treatment" than "that section of the Emergency Provisions Act which places on the defence the onus of establishing that a statement was obtained by ‘torture or inhuman or degrading treatment'".

The solicitors in fact considered a total withdrawal from practice in the non-jury courts.

Footnotes:
[1] Voir dire signifies a trial within a trial whose purpose is to determine the truth from two conflicting statements.
[2] Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland, CMND 5185, 1972.


Complaints machinery

The machinery for the handling of complaints against the police in Northern Ireland is elaborate. Although the delegates were impressed by this, they noted that, in respect of allegations of criminal misconduct by police officers -such as assault during interview -the machinery remains deficient in practice.

Complaints against the police can be divided into two categories: those alleging breaches of discipline and those alleging breaches of the criminal law.

Complaints alleging breaches of discipline include most ‘ normal’ complaints against the police, such as minor traffic incidents (not leading to court proceedings), incivility to the public, neglect of duty, irregularity of police procedure and mishandling of property.

"The statistics also show ... that in the vast majority of cases in which disciplinary proceedings were taken against a member of the Force, the proceedings resulted from internal control exercised by senior officers rather than from complaints made by members of the public and the ‘conviction’ rates were high -83% in 1972, 66% in 1973 and 79% in 1974." (The Handling of Complaints against the Police, Report of the Working Party for Northern Ireland, 1976 Cmnd 6475, p. 7).

The investigation of a complaint against a police officer is carried out by a senior officer. The Police Authority, set up by the Police Act (Northern Ireland) 1970, has the duty to keep itself informed as to the manner in which complaints against the members of the police force are dealt with by the Chief Constable. The Authority, and its Complaints Committee in particular, receives details about the handling of each complaint, but does not receive the full complaints file although the Authority itself considers that under the terms of the Police Act (Northern Ireland) 1970 "it is empowered with the right of access to files regarding individual investigations". (The Handling of Complaints against the Police, p. 31.)

The Police (Northern Ireland) Order 1977 provided for the establishment of a Police Complaints Board for Northern Ireland which introduced a further independent element into investigations of complaints alleging breaches of discipline by members of the RUC. The Board is excluded from all matters involving alleged criminal conduct by the police. The Board was not yet fully operational at the time of the delegates ‘ visit to Northern Ireland.

Complaints amounting to allegations of a breach of the criminal law - such as allegations of maltreatment of suspects in police custody - are however treated generally as any other report or allegation of a breach of the criminal law. In these cases, it is the DPP (Director of Public Prosecutions - see Annex II) rather than the Police Authority that scrutinizes the investigation into the complaints, although the Police Authority will be informed of all steps taken.

The DPP has directed the Chief Constable to submit to him a report on the investigation of each complaint alleging a criminal offence by a member of the RUC. He may give directions in each case.

The mission delegates were informed that if a complaint against the police has been made alleging a criminal offence, the complete complaint file will be sent to the DPP. If a prosecution has been brought against the complainant, the complaint file will be joined with the file on the prosecution.

The investigation is conducted by an investigating officer of the Complaints and Discipline Branch of the RUC. The investigating officer will ask for statements and information from the complainant and anyone else who can help to establish the facts. Police officers named or otherwise implicated in the allegations will also be interviewed.

Of major importance in the investigation is Form 38/17(A) and (B) into which all particulars about a suspect are entered by a uniformed policeman from the moment of arrest. It gives particulars about interviews, including the names of the detectives present, medical examinations, etc.

According to the authorities, it is hardly ever difficult to identify the policemen that are alleged to have mal-treated a suspect.

These policemen will be interviewed but, the investigation being one into a criminal matter, they of course have the right to refuse to answer any questions.

In order to bring prosecution, the DPP must be satisfied that it may be proven in court, not only that an offence has been committed, but also -and beyond reasonable doubt -that the offence was committed by the accused. The investigation therefore goes beyond testing the veracity of the allegations; even if ill-treatment is proven, prosecution can only be brought if the guilt of an identifiable policeman may be established beyond reasonable doubt.

No matter how thorough the investigation into the complaint -- and there is no proof whatsoever that the investigations by the Complaints and Discipline Board are not thorough -it will be extremely difficult to find conclusive evidence. The DPP is concerned only as to whether or nor there is a case to prosecute, not whether or not complaints can be substantiated.

He does not disclose his reasons for deciding whether or not to bring prosecution. Complainant and Police Authority alike are informed only as to whether or not the DPP has directed prosecution. All cases where the DPP has not directed prosecution are classified "unsubstantiated" - without any reference as to the veracity of the allegations.

The findings of the investigation of the complaint may bear upon the prosecution of the complainant; the files are joined. In a number of cases all charges were dropped in spite of a confession usually sufficient to secure conviction. As the DPP does not give reasons for his decisions, it is difficult to draw any conclusions from this.

The procedures set out above will not, however, reveal cases of maltreatment unless, in the view of the DPP, there is sufficient evidence to warrant prosecution. This asks for a very high standard of proof. The words of Lord Justice-General Cooper (Chalmers v. HMA (1954) JJC 66) are relevant here:

"When he [a person held by the police] stands alone in such a place confronted by several police officers, usually some of high rank, the dice are loaded against him, especially as he knows that there is no one to corroborate him as to what exactly occurred during the interrogation, how it was conducted, and how long it lasted."

Complaints of criminal misconduct which do not result in prosecution are classified "unsubstantiated", even though the maltreatment alleged may be found by the authorities investigating the complaint to have taken place.


Summary of findings

Changes in the law relating to arrest, detention and the admissibility of statements in court have combined to reduce safeguards against improper police conduct.

Powers of arrest and detention have been extended and are virtually unchallengeable. The investigation is conducted in an atmosphere of seclusion, aggravated by extended powers of police detention. Access to solicitors is denied as an apparent matter of policy, giving rise to an inference, whether or not justified, that not all statements are made voluntarily.

The reduction of procedural safeguards regarding the admissibility of statements, the extension of the discretion of the single judge and the absence of a jury enhance the danger that statements obtained by maltreatment of suspects will be used as evidence in court.

The procedure for handling complaints alleging a breach of the criminal law by the police will not disclose all cases of maltreatment. Complaints alleging maltreatment in police custody may be classified "unsubstantiated", though the maltreatment alleged may actually have taken place.

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CHAPTER IV
ANNEX I

Powers of arrest

Under section 10 of the Northern Ireland (Emergency Provision) Act 1973, contained in Part II of the Act, a constable may arrest without warrant any person whom he suspects of being a terrorist and a person so arrested may be detained under that arrest for up to 72 hours.

Under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1976 (which applies to the rest of the United Kingdom as well as to Northern Ireland) a constable may arrest without warrant a person whom he reasonably suspects to be a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism. A person so arrested may be detained for up to 48 hours, and the Secretary of State may, in any particular case, extend the period of 48 hours for a further period not exceeding five days.

After an arrest under either of these sections it would not be lawful to re-arrest immediately a person under the other section and hold him for a further period.

Under section 12 of the Northern Ireland (Emergency Provisions) Act 1973, contained in Part II of the Act, a member of the Army may arrest without warrant a person whom he suspects of committing, having committed or being about to commit any offence. He may detain such a person for not more than four hours.

A member of the Army does not have to inform the person arrested of the grounds for his arrest, be it a particular offence or suspicion of an offence. This reverses the judgement by McGonigal, J. in Re McElduff (1972) NI 1. However, the common law essentials for a valid arrest, developed in Christie v. Leachinsky (1947), AC 573 still apply to arrests made by the police (viz. Michael P. O’Boyle, Emergency Situations and the protection of human rights, NILQ, Vol. 28, No. 2, p. 173 ff).

Therefore, a person arrested by, or handed over to, the police has the fundamental right to know from the earliest possible moment under which power he is arrested. However, the very vague wording of the provisions will make it almost impossible to challenge the right of arrest.

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CHAPTER IV
ANNEX II

Director of Public Prosecutions

The function of the Director of Public Prosecution is best summarized in the words of the Standing Advisory Commission on Human Rights! report The Protection of Human Rights by Law in Northern Ireland (1977 Cmnd. 7009, paragraph 2.18 (vii)):

Under the Prosecution of Offences (Northern Ireland Order 1972 the office of an independent Director of Public Prosecution was introduced in Northern Ireland. The Director is the sole prosecuting authority in Northern Ireland. He (or any member of his staff to whom he delegates the responsibility) is responsible for the consideration, with a view to initiating or continuing criminal proceedings, of facts relating to all indictable offences and for 'such summary offences or classes of summary offences as he considers should be dealt with by him’. The Chief Constable is required to furnish the Director with facts and information relating to all alleged indictable offences and any other alleged offences as the Director may specify. (He has, for example, requested the Chief Con- stable to send him reports of all investigations into allegations of misconduct against members of the RUC irrespective of whether the Chief Constable considers that an offence has been committed.)"

The number of cases in which the complete file on a case does not reach the DPP’s office within 12 weeks was increasing at the end of 1977- meaning that no trial would be held within six months. Taken in connection with the changed rules on bail, this means that people spend more time on remand[1]. The delegates were told that a substantial number of people spent several months in custody before being informed that all charges were dropped. If it transpired that in these cases the DPP has dropped charges upon receipt of the complete file, an earlier review of the cases by persons other than the police is advisable. Not being in possession of all data, the delegates could not reach a conclusion on this issue.

Footnotes:
[1] These changes followed the recommendation by the Diplock Commission in paragraph 55 of its report (Cmnd 5185, 1972). For the consideration of that Commission on bail, viz. Paragraphs 51-57.

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CONCLUSIONS

1.

On the basis of the information available to it, Amnesty International believes that maltreatment of suspected terrorists by the RUC has taken place with sufficient frequency to warrant the establishment of a public inquiry to investigate it.

 

 

2.

The evidence presented to the mission does not suggest that uniformed members of the RUC are involved in the alleged maltreatment.

 

 

3.

The evidence presented to the mission suggests that legal provisions, which have eroded the rights of suspects held in connection with terrorist offences, have helped create the circumstances in which maltreatment of suspects has taken place.

 

 

4.

The evidence presented to the mission suggests that the machinery for investigating complaints against the police of assault during interview is not adequate.

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RECOMMENDATIONS

1.

Amnesty International recommends that, for reasons relating to the protection of suspects and police-officers alike, a public and impartial inquiry be established to investigate the allegations of maltreatment.

 

 

2.

The terms of reference of this inquiry should include consideration of the rules relating to interrogation and detention, admissibility of statements, and the effectiveness of machinery for investigating complaints against the police of assault during interview.

 

 

3.

The inquiry should have access to all relevant data on individual cases of alleged maltreatment.

 

 

4.

Pending the establishment and reporting of such an inquiry, Amnesty International recommends that immediate steps should be taken to ensure that suspects being interviewed by the Royal Ulster Constabulary on suspicion of terrorism are protected against possible maltreatment. Measures to this end should include access to lawyers at an early stage of the detention.

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GLOSSARY

albuminuria - the presence of protein in the urine

auscultation - listening with a stethoscope

bilateral positive Hoffman reflex - sudden nipping of the nail of a finger produces flexion of some other fingers. It may be a sign of a lesion in the central nervous system, but it can be found also in very tense persons.

bursa sub pattelaris - small sac of fluid located in front of knee joint

cardiopulmonary - pertaining to the heart and lungs

cerebral asthenopia - disturbance in the delicate coordination of the muscles of eye; suggests some degree of organic brain damage

clavicula - collarbone

diazepam - tranquillizer

epigastrium - the pit of the stomach

erethitic - emotional, quick-tempered and restless

erythematous - redness of skin

flexor - the area of the arm presented when the palm is facing upwards

haematoma - collection of blood

historian - poor historian: difficulties expressing complaints and symptoms

iliac crest - bony crest at the lower external part of the abdomen

inguinal - relating to the groin

labile - emotionally unstable lesion - result of injury

loquax - talking rapidly

lordosis - curvature of the lumbar spine as viewed from the side

medial - pertaining to the middle of the body

occipital - pertaining to the back of the head

opthalmic fundi - the back of the eye

orthostatic - pertaining to the standing position

otoscopy - examination of the ear canal and the eardrum by the use of an instrument

palpation - examining the surface of the body by the use of the hands

palpitation - irregular heart beats

papilla mamma - nipple of the breast

paraestheseas -"pins and needles"

parasympatolytic - drug affecting one part of the autonomous nervous system

parietal - area of the head above the temple towards the midline of the skull

penbritin - an antibiotic

perineum - area between the genitals and the anus

phenothiazines - strong tranquillizers

pinna - ear lobe

premastoidal - the area just behind the external ear

proteinuria - presence of protein in the urine

proximal interphalangeal joint - the finger joint closest to the knuckle

psychosis - major mental disorder characterized by derangement of the personality and loss of contact with reality

quadrant - area of the abdomen

reactively depressed - depressed for some evident reason in contrast to depressions for no obvious reason

regio mastoidei - the areas behind the external ears

regio occipitalis - the back of the head

rhonchi - sounds produced due to partial obstruction of the bronchial tubes, usually due to phlegm

somatic symptoms - pertaining to the body in contrast to mental symptoms

sternal - pertaining to the bone between the ribs in front of the chest

sternomastoid muscle - muscle on the side of the neck

tachycardia - rapid heart beats

tempora parietal - regions of head, the areas from the temples and further towards the back of the head and above the external ears

temporo-mandibular - joint between lower jaw and skull

thorax - rib cage

tinnitus - noise in the ears as ringing, buzzing, roaring etc.

trapezoid muscle - muscle at the top of the back

trauma/traumatic - physical or mental injury

tympanic membrane - eardrum

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CAIN contains information and source material on the conflict and politics in Northern Ireland.
CAIN is based within the University of Ulster.


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