26 July 1991

OUTLINE

(1) Legal regulation on the use of lethal force

(2) The inquest process in Northern Ireland

(3) Current Trends in Security Policy

LEGAL REGULATION ON THE USE OF LETHAL FORCE

There are two issues to be highlighted in this area: (i) the gap between national and international legal standards on the use of lethal force (ii) the problems of rendering members of the security forces accountable at law.

As regards the first issue, the problems lies in the fact that the Criminal Law Act 1967 invokes the 'reasonableness' concept whereas the ECHR, for instance, speaks of the use of force 'which is no more than absolutely necessary'. The argument, which some have made, that the two tests are equivalent is unconvincing, and if the UK is fully to meet is international legal obligations it should reformulate its law along the lines of the ECHR.

The second problem is not unrelated to the first, but even if UK law were to be brought fully into line with the ECHR, there might still be problems in obtaining convictions against culpable members of the security forces. This is because of the reluctance of Diplock courts to bring in Murder verdicts in such situations. As the law stands at present, judges are frequently faced with the stark choice between one of only two possible outcomes: a conviction for murder or an acquittal. The situation might be ameliorated by a reformulation of the law of manslaughter whereby a person acting in self-defence who used an unreasonable degree of force could be convicted of that offence. In addition, one or more lesser offences might be created, the aim being to ensure that there would be a continuum of possible offences, at least one of which culpable members of the security forces would fall foul of.

It might be argued that having such lesser offences would de-value the taking of the lives in question, but at present it is virtually impossible to obtain a conviction in the circumstances which have been outlined, and moves which might inject some accountability into the process could only help to signal society's concern over questionable activities by the Army and the Police.

THE INQUEST PROCESS IN NORTHERN IRELAND

For many years there has been concern both in respect of proceedings at coroners inquests and also in respect of the criminal proceedings which may or may not be taken, and of their outcome in particular cases.

In 1983 the Belfast-based Committee on the Administration of Justice (CAJ) made a submission to the Lord Chancellor setting out the need for some changes in law and practice in respect of coroners inquests in Northern Ireland . The main conclusions in the 1983 submission were that coroners, should insist on their right to proceed with an inquest at the soonest practicable occasion if criminal proceedings are not initiated very quickly, and that the Coroners Rules in Northern Ireland should be brought into line with those in Britain to ensure a fuller investigation of the circumstances of disputed killings. In his response the Lord Chancellor indicated that no changes in law or in practice were necessary. In the light of subsequent events these conclusions are hard to justify.

It is generally agreed that the purpose of an inquest is to establish the cause of unexpected or suspicious deaths and to enquire into the circumstances in which they occurred, so that appropriate action may be taken. There is less general agreement on the extent to which an inquest should result in the attribution of blame, or or civil or criminal responsibility. The main thrust of the two most recent official inquires into coroner's inquests - the Wright Committee (1936) and the Broderick Committee (1971) - has been to limit an inquest to establishing the facts of the death, leaving the pursuit of any criminal proceedings to the prosecuting authorities and of any civil proceedings to interested parties. But there remains a general public expectation, both in Northern Ireland and in Britain , that an inquest should also play a part in ensuring that appropriate action is taken to prevent the occurrence of similar deaths and that the law is complied with.

These differences in approach may be observed very clearly in the development of the law in recent years in Britain and Northern Ireland . In Britain the recommendations of Wright and Broderick that inquests should be limited to fact-finding and be prevented from fault-finding have been implemented only partially. In Northern Ireland they have been fully implemented. In addition there are some significant differences in the practice of coroners and the prosecuting authorities which result in very lengthy delays in the holding of inquests in Northern Ireland.

In England and Wales the most recent major legislative provision on coroner's inquests is the Coroners (Amendment) Act 1926 which confirmed the already established position that the primary duty of investigating and prosecuting cases of homicide lay with the police, notably by providing that a coroner's inquest must be adjourned if someone is charged with criminal homicide. It was not until 1977, however, that the power of a coroner's inquest to commit a suspect for trial on such a charge was removed under the Criminal Law Act 1977, as recommended by Broderick. The additional recommendation that the established verdicts open to coroner's juries notably 'natural causes', 'accident/misadventure', 'lawful killing', 'unlawful killing' and 'open verdict' - be replaced by findings of fact, was not adopted.

In Northern Ireland provision was made in 1922 in the Special Powers Act for the prohibition of the holding of an inquest in particular cases or classes of case. This remained in force until 1973. In addition under the consolidating Coroners Act ( Northern Ireland ) 1959 provision was made, following the recommendation of Wright, to permit coroners to carry out their inquiries without holding an inquest. As in Britain , however, an inquest must be held before a jury in any case where (i) death occurred in prison; or (ii) the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public. Under the Coroners Rules 1963, however, the range of verdicts which a jury could return was severely restricted, and in 1980 the Rules were further amended, following the recommendation of Broderick, to prevent an inquest from returning any verdict at all by prescribing that all verdicts should be in the form of factual findings. These can be in considerable detail, but do not permit the jury to express any view on the lawfulness or otherwise of any killing. It is also the practice of coroners in Northern Ireland , though there is no rule to this effect, not to open any inquest until they have been informed by the prosecuting authorities that no charge is to be made in respect of the killing. This practice, which differs from that adopted in Britain of opening and adjourning an inquest pending such a decision, appears to conflict with the duty imposed on coroners to hold an inquest 'as soon as practicable' subject only to a requirement that an inquest be adjourned if the coroner is informed that a person may be charged, and a discretion to adjourn further if he thinks fit.

The rules of evidence at coroners inquests are generally the same in Britain and Northern Ireland . It is accepted in both jurisdictions that it is a matter for the coroner to decide what witnesses to call. There is also a formal rule in both jurisdictions that no witness can be required to answer any question which may incriminate him. The major difference in this respect is that in Northern Ireland there is an additional rule which prevents the coroner from calling as a witness anyone who is suspected of causing the death or who may be charged with an offence relating to it. The validity of this rule was recently upheld by the House of Lords in the Mc Kerr case.

Bringing the law and practice of coroners' inquests in Northern Ireland into line with that in England and Wales would open the possibility of the whole exercise becoming a much more meaningful one. The changes required would not be that extensive and should be within the bounds of political attainability.

The following are the main steps which would need to be taken:

1. Where the question of possible prosecution is being considered by the prosecuting authorities, coroners in Northern Ireland should open the inquest and then adjourn for a specified period as in England , in order to give time for the authorities to arrive at a decision on prosecution. If necessary a further adjournment for a specified period could be granted, but if there were no decision after say three months, then the inquest should go ahead. This arrangement would help to avoid the inordinate delays which have been a feature of inquests in Northern Ireland in the past few years.

2. The provision in Northern Ireland that a coroner is prohibited from compelling to give evidence a person who is suspected of causing the death, or has been charged, or is likely to be charged with an offence relating to the death should be abolished. Instead, a suspected person should be a compellable witness, but as in England no such person should be obliged to answer any question tending to incriminate himself.

Where a person is actually charged with an offence in relation to the death, the inquest would of course be adjourned pending the outcome of the proceedings.

3. In place of the provisions in Northern Ireland that only 'findings' can be brought in, the English system allowing a full verdict to be reached, including that of 'unlawful killing' and an 'open' verdict, should be introduced.

These three suggestions are clearly not the whole solution to this problem. But their adoption would be a step in the right direction. They would also have the effect of bringing the inquest process more into line with the 'Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions' annexed to UN ECOSOC recommendation of 24 May 1990 (attached).

CURRENT TRENDS IN SECURITY POLICY

The signing of the Anglo Irish Agreement by both Britain and Ireland in November 1985 had an important initial impact on security policies. The Agreement's terms reflected the Irish government's concerns with the need to build confidence in the institutions of law and justice among the nationalist community in the North. This new sensitivity perhaps contributed to the decline of the supergrass, but was most clearly expressed in the 1987 Emergency Provisions Act, which amended earlier legislation by making a number of powers exercisable only on 'reasonable' suspicion.

Since the Act however, the picture has been one of steady decline. The latter part of 1988 saw the introduction of a number of retrograde measures. Remission, which had stood at 50%, was reduced to one-third; a ban was introduced on the transmission by television or radio of interviews with representatives of a number of groups including Sinn Fein and the loyalist Ulster Defence Association; and the right to silence was severely abrogated with the result that the courts were permitted to draw adverse inference from an accused's silence in a number of circumstances. All of these measures were introduced by Ministerial Order or by Order in Council, and thus without any meaningful parliamentary debate.

The amendments introduced by the 1987 Act also appear to have had little or no beneficial effects - indeed the trend seems to have been in precisely the opposite direction as accusations of harassment by the Army in particular have, if anything, grown in volume. In 1987, for instance, despite the insertion of a reasonableness requirement into some search powers, army searches of occupied premises rose by 186% on the 1986 figure, only to increase again by 91% in 1988. Most of these searches yielded no illicit material, and many involved the virtual destruction of the interior of people's homes. There have also been a great many accusations that the Army has been abusing its power to stop and question under s.18 EPA 1978 (as amended). The breadth of this power, and the fact that it is exercisable without any suspicion, makes it into a virtual charter for harassment, while the fact that the extent of its use is not disclosed in official statistics issued in relation to the EPA only serves to increase unease about the provision.

But the clearest example of the backward trend in security policy is the 1991 Emergency Provisions Act, which has just received the Royal Assent. The measure gives searchers a power to examine virtually any documents, however personal, which turn up in the course of the search, and creates a number of dangerously vague new offences. The British Government seems to have refused to learn the obvious lesson which the past twenty years should have taught it so clearly: if emergency powers which are open to abuse are created, the pressure of the emergency is such that these powers will be abused.

Colm Campbell

BCL, PhD, Solicitor, Law Lecturer