The Northern Irish Conflict and the ECHR 1950 Part Five

This blog aims to provide a summary of the contents of the e-book - The Northern Irish Conflict and the ECHR 1950 Part Five by John A Coyle. This e-book examines the constitutional law ramifications and processes in relation to the incorporation of the ECHR 1950 via, the British Human Rights Act 1998, into the UK Domestic law. In the event of non compliance with ECHR 1950. The court will issue a “declaration of incompatibility” in this way the Human Rights Act 1998 seeks to maintain the principle of “Parliamentary Sovereignty”. The three forms of interpretation mechanisms are considered. These are "reading in", "reading out", "reading down". Also the “remedial order” is considered. I.E. If it is not possible to so interpret, the court may issue a “declaration of incompatibility”. Thereby, achieving its aim through political rather than legal means. Chapter 15 examines and considers the ECHR 1950 Investigative human rights processes in the first instance and thereafter, as to potential Human Rights Violations, emanating out of the Anglo-Irish / NI Conflict 1968-1998.In particular, The European Court of Human Rights (ECtHR) Which has ruled that States have three main duties under Article 2:

1. A duty to refrain from unlawful killing;

2. A duty to investigate suspicious deaths; and

3. in certain circumstances, a positive duty to prevent foreseeable loss of life.

Moreover, Signatory states to the ECHR 1950 can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war. The European Court of Human Rights did not rule upon the right to life until 1995, when in McCann and Others v United Kingdom, it ruled that the exception contained in the second paragraph does not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life.

In the context of the Anglo-Irish / NI conflict 1968-1998, in relation to the proposed HMG legacy and statute of limitations legislation, amounting to an amnesty for “State actors”. The NIHRC advises that a statute of limitation restricting the prosecution of state actors would amount to an amnesty. If such an amnesty were to be held to excuse acts constituting gross human rights violations and abuses (including the “right to life” and the prohibition on “torture or other cruel, inhuman or degrading treatment or punishment”) this would be incompatible with human rights law.

In relation to the Anglo-Irish / NI Conflict 1968-1998 There was due consideration as to the real or perceived suggestions, as to HMG’s potential on the incorporation of the ECHR 1950 into UK domestic law, for the manipulation and management of the ECHR 1950 I..E to be employed as either a “Sword or a Shield” is in relation to British State personnel being prosecuted for alleged criminal behaviours, during the Anglo-Irish NI / Conflict 1968-1998? However, suffice to say that HMG decisions and actions during the Anglo-Irish / Northern Conflict 1968-1998, on reflection now may be perceived as being quite conceivably, significantly “disproportionate” in the context of the deliberate restricting and limiting of the investigative component of Article 2ECHR 1950 human rights violations? Thereby, triggering Article 2 human rights violations? Moreover, not just as to loss of life but Articles 3, 5, 6, 7, 8, 14 and potentially linked in conjunction with Articles 17 and 18?

Due consideration was afforded to the role of Signatory states as to the ECHR 1950 in appreciating it is permissible to derogate from the rights contained in Article 2 for deaths which result from lawful acts of war? However, it was noted that the European Court of Human Rights did not rule upon the right to life until 1995, when in McCann and Others v United Kingdom, it ruled that the exception contained in the second paragraph does not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life.

The NIHRC undertook a review of human rights and conflict related legacy issues. In particular, as to the HMG defence committee proposals. I.E. on ‘Investigations into fatalities in Northern Ireland involving British military personnel’ Advice of the Northern Ireland Human Rights Commission on the House of Common’s Defence Committee report on “Investigations in fatalities in Northern Ireland involving British military personnel’. In particular, as to the human rights legalities around treaty amnesties. UN OHCHR, Rule-of-law Tools for Post-conflict States, Amnesties, (2009). The rule of law and transitional justice in conflict and post-conflict societies, human rights law, it has not been formally defined.” Furthermore, the Council of Europe guidelines for Eradicating Impunity for Serious Human Rights Violations also state that ‘serious’ human rights violations may include: extra-judicial killings; negligence leading to serious risk to life or health; torture or inhuman or degrading treatment by security forces, prison officers or other public officials; enforced disappearances; kidnapping; slavery, forced labour or human trafficking; rape or sexual abuse; serious physical assault, including in the context of domestic violence; and the intentional destruction of homes or property. In this connection, the NIHRC advises that a statute of limitation restricting the prosecution of state actors would amount to an amnesty. If such an amnesty were to be held to excuse acts constituting gross human rights violations and abuses (including the “right to life” and the prohibition on “torture or other cruel, inhuman or degrading treatment or punishment”) this would be incompatible with human rights law. In essence, The ECt.HR stated that

“even in such fundamental areas of the protection of human rights as the right to life, the State is justified in enacting, in the context of its criminal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public.”

Moreover, the impact of domestic legislation and the implications in relation to past HMG political a security policy decisions and actions, during the Anglo-Irish / NI Conflict 1968-1998. In particular, as to progress towards the implementation of the Stormont House Agreement 2014 and to review the Northern Ireland (Sentences) Act 1998. I.E. in order to be eligible for release a prisoner had to fulfil a number of conditions, set out by the 1998 Act. These include: The sentence must be for a qualifying offence committed which has attracted a sentence of more than 5 years. This may be interpreted in terms of criminal sentences not being capable of becoming spent under the rehabilitation of ex-offender legislation, but not being an absolute is qualifying antecedent for sentences for less than five years. In this context, the NIHRC, Technical Analysis of the Section Dealing with ‘The Past’ within the Stormont House Agreement (2015) para 70, paras 52, 54 Northern Ireland (Sentences) Act 1998, Section 3(3) 15 The prisoner must not be a member of a specified organisation; Furthermore, the prisoner, if released immediately, would not be likely to become a supporter of a specified organisation or become concerned in the commission, preparation or instigation of acts of terrorism; and the prisoner, if released immediately, would not be a danger to the public.; and or the Northern Ireland (Sentences) Act 1998, defines a qualifying offence as one which:

(a) was committed before 10th April 1998;

(b) was when committed a scheduled offence within the meaning of the Northern Ireland (Emergency Provisions) Act 1973, 1978, 1991 or 1996, and

(c) was not the subject of a certificate of the Attorney General for Northern Ireland that it was not to be treated as a scheduled offence in the case concerned.”

However, offences committed prior to the commencement of the Northern Ireland (Emergency Provisions) Act 1973 will not satisfy the requirement to be ‘scheduled’. Therefore, an individual (state or non-state actor) seeking early release for an offence committed prior to this point would not be able to access early release through the Northern Ireland (Sentences) Act 1998. The implications for a significant number of RC nationalist / republican charged with temporary emergency “scheduled criminal offences” who were categorised in this way is a potential human rights issue. This is because the majority of the accused were not charged in the first place with membership of a proscribed unlawful paramilitary / terrorist organisation? Despite this there is a post conviction prisoner release contradictory eligibility requirement? This is of course separate and distinct from the potential Article 5 ECHR 1950, liberty and security and Article 6 ECHR 1950 fair trial human rights violations; There is also in this connection potential Article 3, 7, 8, 14 ECHR 1950 human rights violations. The NIHRC has recommended a review of the Northern Ireland (Sentences) Act 1998.

The full implementation of the Stormont House Agreement[2014] has been advocated. There were significant political and security implications which had to be unpacked and analysed. In this connection, a consideration of the potential for the human rights duty to investigate suspicious deaths, and in certain circumstances was been confounded by the British Governments policy of “Criminalisation” under the pretext of a protracted set of emergency powers. I.E. in circumstances which may have had a consequence of “Situationally Positioning” those who were caught up the Anglo-Irish / NI conflict 1968-1998. This was further confounded by the perception, that events were being externally manipulated, managed and controlled by those seeking to maintain a presence on the island of Ireland? In particular, the British government have continually insisted that there was no war taking place in Northern Ireland and supported the narrative, as to a NI conflict termed “the troubles” I.E. as distinct from a war or armed struggle or violent political protest short of intended international terrorism? Emergency provisions were employed involving detention without trial and the special powers and adjudications via a Special Diplock Courts systems, which applied the criminal law and imposed criminal sentencing and imprisonment. That is, any Northern Irish “British Subjects” who were charged with emergency “scheduled criminal offences” were also denied the right to receive a fair trial in a properly constituted criminal court with a judge and jury, without the burden of proof being reversed. Magistrates were not allowed to grant bail and pre-charge police interrogation practices, denied access to legal representation; and or an appropriate adult where applicable? The Attorney General was not empowered to de-schedule any of the earlier emergency powers “scheduled criminal offences”? This impacted on the fair application of the “Judges Rules” and undermined the “Rules of Natural Justice” at many levels. There were very serious disclosure to the defence issues and default breaks in the chain of evidence, the carrying of legally held firearms by RUC police detectives into police interrogations of NI suspects, the carrying in of firearm exhibits which were used to intimidate suspects and with the potential consequences for GSR transference onto suspects, due to bad police conduct and failures in due diligence and accountability? These behaviours are very relevant in relation to violations in Articles, 2 and 3ECHR 1950 because these contravening processes were aimed at undermining due process. This bad police conduct did impact and still do act as an obstacle in pursuing the duty to investigate suspicious deaths; and in certain circumstances, a positive duty to prevent foreseeable loss of life. This type of bad police conduct is capable of being covered up and facilitated by a culture of covering up, the British Army and bad police behaviours? This makes it very difficult to unlock the investigative processes involved in pursuing the Article 2 investigative rights, regardless of categorising decisions and actions as being, a “suspicious death”; and or in certain circumstances amounting to the prevention of a “foreseeable loss of life”. These issues are and have been continually raised and discussed throughout the text in parts 1, 2, 3, 4 and 5 of this book.

Therefore, in the context of the Anglo-Irish NI conflict 1968-1998, events such as "Bloody Sunday" and "Ballymurphy" killings by British paratroopers and the Stalker, Sampson and Stevens inquiries, involving British security services in "Shoot to Kill" and "Collusion with loyalist paramilitaries" in the murder of Roman Catholics in Northern Ireland, may therefore, reinforce and invoke ECHR 1950 investigative rights? The extent of the duty to investigate; criminal investigations and the possibility of taking civil actions in duty of care negligence, may be sufficient to discharge the obligation and there is no right to a public inquiry, as usually defined in the UK? This may not be the Council of Europe ECHR 1950 Commission understanding? However, in the context of the British State / public authority involvement in collusion with loyalist paramilitary murders of Northern Irish Roman Catholics, is clearly different and HMG public authorities are without question potentially culpable both via the British courts decisions and ECHR 1950? The loss of life of British State / RUC informers in negligent failures in the duty of care of British Army / RUC informers may or may not be interpreted differently?

There was some consideration in relation to cases involving life-threatening injuries. Also Article 2 ECHR 1950 in relation to dangerous decisions and actions. ECHR 1950 Court has already had occasion to develop in relation notably to the use of lethal force. Some applicable principles must apply for example, when the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities. The issues of discrimination and fairness was considered in the context of the potential applications of ECHR 1950 / ICCPR 1966 – Equality and non-discrimination; and the established UK Common law current fairness issues. Article 26 of the ICCPR, protects the rights to equality before the law and equal protection of the law. Neither the ICCPR nor the UN Human Rights Committee has defined these terms. However, Article 26 ICCPR also prohibits discrimination and guarantees effective protections against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The UN Human Rights Committee, in its general comment on non-discrimination, has emphasised that Article 26 ICCPR

“prohibits discrimination in law or in fact in any field regulated and protected by public authorities.”

Again, during the Anglo-Irish / NI conflict 1968-1998. HMG were without question protagonists with a security and political agenda of their own to serve. I.E in a circumstance of unequal power relations, with many alternative political and security options at their disposal? In particular, i.e. findings of the Bennet Report. However, HMG chose not to pursue any of these because these were conflicting and competing with their open stated policies which are aimed at keeping the six northern Irish counties within the UK? Indeed, many of HMG’s decisions and actions were counterproductive and only served to protract the NI conflict. In particular, their policy of “Criminalisation” and denial of humans rights. Moreover, as previously considered in the text, both as to a number of UK judicial decisions, based on procedural fairness, in the context of past events subject to previous laws current at the time in question. For example, in this connection, with the Mulolland (case 2006) that while the court must apply the statute law in force at the time of the trial, it must apply “current standards of fairness” and a current understanding of the English common law – R v King [2000] Crim LR 835. That is, fairness should prevail irrespective as to a decision based on past law. Current understandings of fairness would identify the investigative and legal abuses of process. For example, as in the subsequent Police and Criminal Evidence Act 1986 and code of practice, Criminal Investigations and procedures Act 1996, CPS Code of Practice; current understanding of the common law R v Chief Constable of the RUC, ex parte Begley and Mc Williams [1997] HL 1 WLR 1475 which held there is a common law right to consult privately with a solicitor was based on long standing legal authorities. The application of the ECHR 1950 was always there and corresponding with common law duties; and or the “rules of natural justice” at the time in question; and or also albeit indirectly.

Clearly, therefore, all of the above arguments advanced in relation to human rights protection and English common law and statutory protections, as indicated in the Mulolland (case 2006),that while the Court must apply the statute law in force at the time of the trial, it must apply current standards of fairness and a current understanding of the common law – R v King [2000] Crim LR 835. That is,

“fairness should prevail irrespective as to a decision based on past law. Current understanding of fairness would identify the investigative and legal abuses of process”–

This is to include the application of the “rules of natural justice” to the shift in the burden of proof, in relation to this particular set of circumstances, due to the irregular conduct of the former RUC, police doctor, forensic scientist and the former DPP; and all NI conflict related offences involving the violation of the UK Human Rights Act 1998 and ECHR 1950. In essence, the consequences may be far reaching in that many NI conflict related convictions, will be open to be rendered unsafe, null, void and or invalidated?

Article 26 ICCPR[37]equality and non-discrimination; and or ECHR 1950 Articles, 3, 5, 6, 7, 8 and 14. Moreover, as considered Article s 17 and 18 ECHR 1950. I.E specifically, in relation to Northern Irish “British Subjects” who were arrested and detained and either interned or brought before the Special Diplock Courts having been charged with emergency legislation “scheduled criminal offences”. This is despite not being charged with membership of a proscribed unlawful paramilitary / terrorist organisation; and or interim custody orders and interment security services / military statement allegation/s being reduced to writing and signed off on? Clearly, these conflicting, competing and countervailing emergency provisions / escrows, applied to two separate time periods simultaneously and subsequently variously, which may or may not have been unlawful in “real time”, human rights international jurisprudence? I.E. in the absence of the application of recognised definitive aids, to interpretations of the emergency provisions? Together with an “objective justification” for the emergency provisions, both as to either internment without trial; and or the “scheduled criminal offences” adjudicated, via the Special Diplock Courts which may or may not have been, in all of the prevailing circumstances capable of corresponding to an “objective criteria" .I.E. without identifying these potentially unlawful processes / anomalies; and or discriminatory decisions and actions?

It is noteworthy, in the context of the Anglo-Irish / NI conflict 1968-1998 that HMG criminal policy and HMG’s emergency political and security policies, were without question motived towards a policy of “Criminalisation” amounting to a pre planned “ulterior predominant purpose”. Clearly, separate and distinct from a standard human rights compliant criminal policy? In essence, an HMG self-made socially constructed political and security agenda, supported by a false and misleading narrative. Thereby, at variance and in avoidance of ECHR 1950 human rights protections and responsibilities?

A number of issues were also considered such as unresolved outstanding ECHR 1950 Cases. There are three broad categories of case in which insufficient progress has been made towards implementation of judgments of the European Court of Human Rights. The three areas of concern. The non-implementation in Northern Ireland of certain judgments which have been implemented in the rest of the UK. In particular, the group of historic cases from Northern Ireland concerning the inadequacy of the investigation in connection with the use of lethal force by State agents (the set of cases referred to as the "McKerr Group", which comprises the following six cases;- McKerr, Jordan, McShane, Shanaghan, Kelly and Finucane. Amounting to inadequate investigations into deaths in Northern Ireland? Significant delays in the UK devolved jurisdictions, in relation to the implementation of ECHR 1950 human right? Most especially in Northern Ireland. The McKerr group of cases concern the adequacy of investigations into deaths in the 1980s and1990s, during the Anglo-Irish / NI conflict 1968-1998 in the British State of Northern Ireland. These cases emanate out of either security force operations, or in circumstances giving rise to suspicions of collusion with the security forces? These types of suspicions had been borne out in the Stevens and Stevens and Sampson Inquiries. The Court in these cases found a number of violations of the procedural obligation under Article 2 ECHR 1950 the “right to life” to conduct an effective investigation into such deaths, including lack of independence of investigating police officers; lack of public scrutiny and information to victims' families on reasons for decisions not to prosecute?; Also defects in the police investigations; limitations on the role and scope of the inquest procedure; absence of legal aid for the representation of the victims' families; and delays in inquest proceedings.

HMG proposals as to a statute of limitations in relation to NI conflict related fatalities has been rejected by the NIHRC and all of the Northern Irish and UK opposition parties the Irish government. The statute of limitations legacy legislation is for the most part considered to be non compliant with ECHR 1950.

Also prisoner voting rights, the issue of whole life tariffs. In essence, HMG do not appear to grasp or are unwilling to embrace, the concept of the vindication of human rights in term of “humanity”? This is as distinct from the actual bad conduct in real time and the subsequent punishment by way of imprisonment. This attitude toward the human rights of convicted prisoners continues regardless of being locked away from society? There appears to be a conflicting and competing Anglo-Saxon cultural feudalism, which is presenting with a range of embedded difficulties underpinned by impulses toward social control, coercive control and the promotion of unequal relations? This may be due to perceived misunderstanding as to the true nature and quality of the unfettered freedom of choice.