Livingstone spent many years in prison, his incarceration the result of an understanding between the British judiciary and the British police that the total absence of credible evidence would not stand in the way of a conviction. He has since won his appeal but only after a three decade long battle to establish the unsafe nature of the verdict against him.
The point of Livingstone’s letter was not to carp about his own misfortune but to draw attention to the conviction of two Craigavon men, Brendan McConville and John Paul Wooton who earlier this month lost their appeal against a British Diplock court judgement that they were guilty of having killed PSNI member Stephen Carroll. Carroll died after his police patrol came under gunfire from the Continuity IRA while in the course of responding to an emergency call. In the view of Livingstone who had been following proceedings:
This whole case has been a hotchpotch of if, buts and maybes held together by a so called witness who waited a year to come forward and has been discredited by all who knew him including relatives.Many find it impossible to take issue with his observation, amongst them high profile figures who experienced grave miscarriages of justice in British courts such as Paddy Hill wrongly convicted for bombing Birmingham in 1974 and Gerry Conlon also wrongly convicted for bombing Guildford and Woolwich the same year.
Stephen Carroll was not a combatant engaged in a war. There has been no war in the North for many years. He was a cop going about his societally mandated duty much as cops in any society do and had the same right not to be targeted as every other non-combatant in the North or for that matter Garda in the South. While republicans could no more lend political support to Britain’s armed police in Ireland than atheists could support the use of holy water, that conscientious objection is not a licence to express our grievances by whatever means we deem fit.
At the same time criticism of the PSNI no matter how robust, trenchant even, cannot be construed as anti-peace, the work of those out to drag Northern society back to the dark old days. As Gerry Conlon points out:
I have to say I am not a republican in any shape or form and I do not advocate anything to do with republican dissidents, violence or anything … I am a human rights activist and this is a really disturbing case.It is the long dark shadow that the PSNI casts that critics of the force want removed. There remain fundamental problems with British policing in the North, and the unmitigated wrongfulness of Stephen Carroll’s death is not a licence for the state to cook books and close cases by signing off on downright dubious convictions. The Craigavon 2 case has long been under a cloud of suspicion over PSNI malpractice and motives. One of the lawyers in the case expressed fears that he too would face arrest for doing his job in representing his clients, covert police audio recordings were tampered with and the PSNI has been accused of intimidating witnesses,
A former republican prisoner campaigning for McConville and Wooton sketched in some of the detail pertaining to this intimidation:
A witness who came forward to cast serious doubt over a key prosecution witness was visited by the PSNI who verbally intimidated and threatened him, telling him that if he carried on and gave evidence to state that his family member was shortsighted and couldn't have been where he said he was on the night, that they would discredit him in court. Then twenty-four hours later they went back and arrested this new witness and held him for forty-eight hours, all of the time telling him that if he went to court he would be discredited.Like Gerry Conlon 'I don’t know if these guys are innocent but what I do know is they didn’t get a fair trial.' What is also known is that increasingly questions are being asked of the PSNI for which it is remarkably short on plausible answers. And the repressive judiciary-police nexus from which has stemmed so many abuses of justices is still in place.
Now that might be a process but can we really call it peace?
has ann travers any thing to comment this .she recons she knows.
ReplyDeleteThe change to the diplock court system didn't change the conviction rate for Republicans. More Republicans ended up in court because of a change in the rules of evidence. The proportion of Republicans who were found guilty stayed the same although the raw numbers went up. This was due to the fact that the rules of evidence changed.
ReplyDeleteThe Diplock courts' single judges were no more likely to decide against a Republican suspect than a jury who at the time were normally mostly unionists (because of different factors like demographics).
After the Diplock system was introduced the proportion of loyalists who were charged went up but the proportion of Republicans stayed the same.
There were statistically more Protestants on juries than Catholics and the juries tended to look upon Loyalists more favourably. Judges were more likely to find a Loyalist suspect guilty than a jury.
However neither looked favourably on Republicans.
I don't write this in support of the Diplock system but to show that the changes in the rules of evidence were more important than the lack of jury.
Other factors came into play as Catholics, paramilitary or otherwise, were more likely to be arrested, more likely to be charged & convicted, more likely to face prison, tended to get longer sentences for similar offences, tended to be punished in prison more harshly and more often.
In fact a recent report shows little has changed inside prison. I don't know about conviction or sentencing rates though.
Sorry the third paragraph should read "convicted" not "charged".
ReplyDeleteSimon
ReplyDelete"I don't write this in support of the Diplock system but to show that the changes in the rules of evidence were more important than the lack of jury."
That is a bit of a fallacy because the bulk of the 'evidence' in Diplock Courts was self incrimination. In the 70's to extract statements interrogators were permitted to slap or rough treat suspects because that did not amount to torture. But throughout the troubles consistently high proportion of convictions were as a result of signed confessions and no other evidence.
I have not seen it specifically mentioned anywhere but the timing of Diplock's Report came in advance to the Juries Act 1974 which was to facilitate more nationalists on the jury. It was a case of giving with one hand and removing with the other. The loss of jury was immeasurable --I am not sure how accurate it is but apparently Carswell alone had a 98% conviction rate against nationalists. While about 30% loyalists walked from his court.
However dealing with the loss of jury in the present case. Some years ago a SF MLA bragged to me how much better things are because there are so few Non-jury trials nowadays. I did not agree with him because that makes matters worse. The fewer people subject to a diplock trial means the greater the stigma attached that the defendant/s are thought to be dangerous. Selection for non-jury trial means that an unchallengeable inference is drawn against the accused that they are dangerous -and that is before any trial. The odds are against an accused that he might never recover by the time the trial takes place.
A distinction needs to be made realised between jurisdictions that do not have jury trials (everyone is the same) and a jurisdiction where there are jury trials but some people can be excluded from having one.
Tiarna- I was purely pointing out that a jury-less trial had little if any effect on the conviction rates of Republican suspects but more Republicans were charged leading to more facing trial. Juries were just as likely to convict as a single judge proportionately.
ReplyDeleteThe reason why more Republicans were charged was due to changes in the rules of evidence.
From Crime and Justice Volume 17 "Criminal Justice in a Divided Society Northern Irish Prisons" by Gormally, McEvoy and Wall (1993):
" Recommendations were made concerning, among other things, the extension of army and police powers to stop and question,search and seize, and arrest and detain; the relaxation of the law governing the admissibility of confessions in order to enable convictions on confession alone to be secured in a greater number of cases; and the suspension of jury trial for a list of offences usually associated with paramilitary organisations. These were to known as 'scheduled offences' since they were listed in a schedule to the enabling legislation. The Commission concluded that jury trial was "not practicable in the case of terrorist crimes in Northern Ireland" because of the threat of intimidation of witnesses and the risk that Loyalist defendants would be perversely acquitted by predominantly Protestant juries."
Simone
ReplyDelete"jury-less trial had little if any effect on the conviction rates of Republican suspects ... Juries were just as likely to convict as a single judge proportionately.W
I do not agree. Diplock Courts were brought in at the same time that the law was changed to allow more Nationalists to sit on juries. Also were there is police brutality -juries, even predominantly protestant ones were considered more likely to acquit than a 100% unionist judge would. I think Diplock himself addressed that in his infamous Report.
I am afraid you'll just have to trust me on the conviction rate. It was a point that stuck with me constantly for twenty years since I saw a table of figures in a class at University.
ReplyDeleteHowever I do not have access to the figures so don't want to argue unnecessarily. It is something I am certain about.
Apologies Tiarna, I just saw your point in your last comment about changes in the law to allow more Catholics to sit on juries. I don't know enough to categorically state anything other than to say I doubt the change to the Diplock courts around the same time was a coincidence.
ReplyDeleteThe Government didn't want to throw Republicans a lifeline in the form of jury changes at such a point in the Troubles. If the Diplock courts weren't introduced I doubt that any such lifeline would have been thrown.
Simon
ReplyDeleteNow you get my point. The adverse consequence as result of denial of a jury trial is not quantifiable.
Tiarna, Have you ever seen the figures that quantify the number of cases that were brought to court for scheduled offences after the overhaul of the justice system under Diplock?
ReplyDeleteThe number of people charged for "terrorist" offences soared. Due to reasons above given by Gormally, McEvoy and Wall.
I wasn't saying juryless trials were a good thing purely pointing out that the conviction rate for Republicans suffered no significant change than before Diplock.
I stand by my point that the government was unlikely to make things easier for Republicans who were to be tried. Your point about the Juries Act is moot as it came in after Diplock so no comparison can be made. My comparison with the status quo prior to Diplock can be made.
You have a point that Diplock may have led to a harsher reality than a system incorporating more balanced juries however the government isn't Santa Claus.
They hated the IRA and wanted as many suspects locked up as possible.
It may not be just but its the way they do things.
I know what you are saying and I got your point.
ReplyDeleteKitson advised that the law and courts should be just another part of the military arsenal. Removal of civilians juries was part of his plan. And the Brits would not have done away with juries to get the same result according to Gormally, McEvoy and Wall. So you need look under the cover and not at statistics. remember, juries were done away with because of alleged jury tampering --yet neither Lord Diplock, nor later, Lord Gardiner ever found a single instance that any jurist had been intimidated or improperly influenced. They do point to witness intimation but that it is a totally different thing unrelated to juries.
To say "The Diplock courts' single judges were no more likely to decide against a Republican suspect than a jury who at the time were normally mostly unionists (because of different factors like demographics)." I read research that said otherwise about protestant juries in political trials but even if I agree with you and suppose both protestant and single judges sitting without a jury delivered exactly the same conviction rates. Then that is argument why both needed to be changed and one difference would have been jury make-up -so it is completely wrong to say the loss of jury trial made no difference --that is not true --in a matter of months after Diplock Trials were introduced juries were no longer the same and everyone on trial from then on were denied benefit of a more balanced jury trial. To say that is moot point is to fail to grasp what people were denied. Thousands of people could have had benefit of trial with more balanced juries. And it is not right to say they did not loose out because Gormally, McEvoy and Wall have based their research upon fixed statistics pre Diplock. That is flawed logic.
Juries are notorious for finding against the state when state excesses are involved. There are no statistics to show what difference a balanced jury trial would have made and that cannot be conveniently written off as a moot point but more accurately justice denied.
Tiarna, I think we agree now. Denial of jury was definitely justice denied.
ReplyDeleteBut then again justice was denied with so many of the changes. Like the relaxation of the law on confession only cases to enable more such cases to succeed amongst many other things.
More people went through the conveyor belt system because of these other changes.
Focusing purely on the single judge point misses many other denials of justice which in themselves led to more people being charged in the first place. I am not saying you are doing that, it seems many people when they talk of Diplock forget about things like changes to search and seizure, arrest and detain powers and so on.
It was a major overhaul of the justice system but it was more than the lack of jury that led to a lack of justice.
Simon
ReplyDeleteYes there was a whole cumulative effect effect for the reasons you say. I was merely addressing the loss of jury trial in trials that were primarily based upon self-incriminating statements (rated at around 80plus% of cases). A balanced jury would not have returned the high conviction rates that a single unionist judge would.
There remains a fallacy that the removal of the jury did not result in any real difference in a persons chances of being wrongfully convicted. All the other things you refer to in part enjoyed the absence of a jury's oversight.
As hard as some might think it the Diplock System worked because defense lawyers made it work, but then to do otherwise was a catch 22.