Abstract
Arguably Bloody Sunday presents the ultimate example of law and justice being set to one side in order to serve the narrow interests of the security forces and their political masters. Not only did the law fail to protect 28 innocent civilians from being shot dead or wounded by the soldiers, but it also appears that the judicial process was deployed to cover up the full extent of the culpability of the soldiers and their military and political masters. It cannot be assumed, however, that Bloody Sunday was totally unique. While the scale of the slaughter that day has not been surpassed by the security forces in any other operation in Northern Ireland, the failure of the law either to protect the victims or to deliver justice is all too familiar. Indeed at one level Bloody Sunday might be considered as the worst example of the rule of law being shamelessly prostituted in the service of the partisan security and narrow political interests of the state. Since 1969 at least, the security forces have been able to perceive the law and the criminal justice process as supports for, rather than controls on, the immediate demands of security policy. Their use of arbitrary arrest, detention, interrogation, imprisonment, search, seizure and force, including lethal force, has been supported by legislative and executive action and abuses have rarely been penalised in the courts. The net effect has been to convey an image of the security forces as being the law as opposed to being subject to the law.
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Notes and References
See attorney general’s written answer to a parliamentary question — Hansard 1 Aug. 1972. Significantly, the attorney general went on to say: ‘I have also decided that it would not be in the public interest to proceed further with charges of riotous behaviour which have been brought against certain civilians in respect of their participation in the events of that day; and accordingly direction will be given that no evidence be offered in support of charges already preferred and that the necessary steps be taken to apply to the court to withdraw such summonses as have been issued.’ This decision closed off the possibility of any of the events of Bloody Sunday being reopened in court on a criminal prosecution of any civilians alleged to have been rioting that day.
The sums were as follows: Patrick Doherty, £16 575.35; Gerald Donaghy, £850; John Duddy, £2422; Hugh Gilmour, £250; Michael Kelly, £250; Michael McDaid, £250; Kevin McElhinney, £250; Bernard McGuigan, £3750; James McKinney, £13 770; William McKinney, £1350; William Nash, £250; James Wray, £1500; John Young, £250.
At the time of Bloody Sunday inquests were governed by the Coroners Act (Northern Ireland) 1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963. See generally J. Lecky and D. Greer, Coroners’ Law and Practice in Northern Ireland (Belfast: SLS, 1998), ch. 1.
Irish Times, 22 Aug. 1973.
Ireland v United Kingdom, no. 5310/71; Yearbook of the European Convention of Human Rights, vol. 15 (The Hague: Kluwer Law International, 1972), pp. 77–256.
The original application was submitted on 16 December 1971 (see Yearbook on the European Convention of Human Rights, vol. 14 (The Hague: Kluwer Law International, 1971), pp. 100–2). By two supplementary memorials, application no. 5451/72, the Irish government alleged further continuing breaches, including in particular the 13 deaths on Bloody Sunday. These were treated as part of the original application.
British Irish Rights Watch was formally established in 1992. Its objects are: (1) the promotion by means of education and research of the proper observance and maintenance of human rights in Britain and Ireland and elsewhere in the world with particular reference to the conflict in Northern Ireland; (2) the promotion and dissemination of knowledge, information and understanding of such human rights by writing, publishing and distributing articles, reports, books and other documents and assisting in the same, by arranging and providing lectures and seminars, and by all other means of providing and exchanging information; and (3) to procure the abolition of torture, extrajudicial executions and arbitrary arrest, detention and exile.
McDaid and Others v United Kingdom, application no. 25681/94, 22 EHRR CD197-198 (1996).
9 R v The Bloody Sunday Tribunal of Inquiry, ex parte B, O, U and V (High Court, 16 Mar. 99). The tribunal appealed unsuccessfully to the Court of Appeal against that part of the judgment which declared that the tribunal had misunderstood the nature and extent of the anonymity granted to the soldiers by Lord Widgery in 1972; see R v The Bloody Sunday Tribunal of Inquiry, ex parte B; O; U and V (Court of Appeal, 30 Mar. 99).
On the basis of the assessment of the security threat to which he would be exposed the Saville inquiry ruled that one RUC officer could give evidence while screened from the public view.
R v Lord Saville and others, ex parte A and others 149 NLJ 965.
R v Lord Saville of Newdigate and others, ex parte A and others (The Times 29 July 99).
Don Mullan ‘Judge’s army links lead to calls for quashing of Bloody Sunday ruling’ Irish Times, 2 August 1999.
[1999] 1 All ER 577.
Don Mullan, author of Eyewitness Bloody Sunday and a prominent spokesman for the Bloody Sunday Justice Campaign, has argued the case for a rehearing of the appeal before a differently constituted court; see Don Mullan ‘Irish Times’ op. cit.
Agreement Reached in the Multi-Party Negotiations, Strand One.
Agreement Reached in the Multi-Party Negotiations, Strand Two.
Agreement Reached in the Multi-Party Negotiations, Rights, Safeguards and Equality of Opportunity: Economic, Social and Cultural Issues.
Agreement Reached in the Multi-Party Negotiations, Rights, Safeguards and Equality of Opportunity: Human Rights, para.1.
Ibid., para. 2.
The agreement provides for devolved government in Northern Ireland. This will take the form of a directly elected assembly, from which an executive will be established. There is provision for broad legislative powers to be transferred to this assembly. In effect it is a return to the devolved government arrangements which prevailed in Northern Ireland from 1921 to 1972, with the critical difference that power sharing between the two communities is specifically built into the machinery; see strand one of the agreement.
Agreement Reached in the Multi-Party Negotiations, Rights, Safeguards and Equality of Opportunity: Human Rights, para. 5. The first chief commissioner is Professor Brice Dickson, a leading international expert on human rights law with a long track record of campaigning on human rights and civil liberties issues in Northern Ireland.
Agreement Reached in the Multi-Party Negotiations, Rights, Safeguards and Equality of Opportunity: Human Rights, para. 4.
The statutory basis and remit for the Commission are to be found in Sections 68–72 of the Northern Ireland Act 1998 and are broadly in line with the relevant provisions in the agreement.
Agreement Reached in the Multi-Party Negotiations, Security, para. 1.
Ibid., para. 2.
Northern Ireland (Sentences) Act 1998.
Agreement Reached in the Multi-Party Negotiations, Prisoners.
Agreement Reached in the Multi-Party Negotiations, Policing and Justice, para. 1.
Ibid., para. 2.
Ibid., para. 3. ‘The Commission will be broadly representative with expert and international representation among its membership and will be asked to consult widely.’
Ibid., annex A.
Hansard, H. L. May 1998, vol. 589, col. 1379.
See Current Law Statutes Annotated 1998, c. 32 (London: Sweet & Maxwell, 1998).
The members of the Commission, in addition to Chris Patten, are Sir John Smith, a former deputy commissioner of the London Metropolitan Police with experience as one of HM inspectors of constabulary; Kathleen O’Toole, formerly of the Boston police and currently secretary for public safety; Peter Smith QC, with 20 years experience at the Northern Ireland bar; Dr Maurice Hayes a former senior civil servant and Ombudsman in Northern Ireland and author of A Police Ombudsman for Northern Ireland? (Belfast: NIO, 1997); Professor Clifford Shearing, director of the Centre of Criminology at the University of Toronto; Dr Gerald Lynch, president of John Jay College of Criminal Justice in the City University of New York, which is rated the number one criminal justice institute in the United States; and Lucy Woods, chief executive of British Telecom in Northern Ireland.
Agreement Reached in the Multi-Party Negotiations, Policing and Justice, para. 5.
Ibid., para. 4.
The officials are Jim Daniell, director of criminal justice at the NIO (leader of the group); Glenn Thompson, director of the Northern Ireland Court Service; David Seymour, legal secretary to the Law Officers; and Ian Maye, Criminal Policy Division of the NIO (secretary to the review).
The independent assessors are Professor Joanna Shapland, professor of criminal justice at Sheffield University and director of the Institute for the Study of the Legal Profession; Professor John Jackson, professor of public law and head of the Law School at Queen’s University Belfast; Eugene Grant QC, founder and general secretary of the Criminal Bar Association (NI) and former chairman of the General Council of the Bar of Northern Ireland; Dr Bill Lockhart, director of the Extern Organisation and director of the Centre for Independent Research and Analysis of Crime; and John Gower QC, a retired English judge.
Agreement Reached in the Multi-Party Negotiations, Constitutional Issues, annex B.
Agreement Reached in the Multi-Party Negotiations, Declaration of Support, para. 4.
Agreement Reached in the Multi-Party Negotiations, Decommissioning.
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© 2000 Dermot P. J. Walsh
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Walsh, D.P.J. (2000). The Path to Justice. In: Bloody Sunday and the Rule of Law in Northern Ireland. Palgrave Macmillan, London. https://doi.org/10.1057/9780230514461_8
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