Academic journal article Texas International Law Journal

It's Time to Leave the Troubles Behind: Northern Ireland Must Try Paramilitary Suspects by Jury Rather Than in Diplock-Type Courts

Academic journal article Texas International Law Journal

It's Time to Leave the Troubles Behind: Northern Ireland Must Try Paramilitary Suspects by Jury Rather Than in Diplock-Type Courts

Article excerpt

I. INTRODUCTION

Severe civil strife, known as the Troubles, has plagued Northern Ireland throughout its history and continues to be a problem today. In certain cases between 1973 and 2007, terrorism suspects were tried in controversial Diplock courts with a single judge sitting as the trier of both law and fact.1 Though Diplock courts were technically abolished in 2007, Northern Ireland continues to allow non-jury trials of suspected members of paramilitary organizations that are similar to the old Diplock courts.2 The power to refer paramilitary suspects to non-jury, Diplock-type trials was extended for two years in 2009 and still exists today.3

More than half of the murders that occurred during the Troubles remain unsolved.4 In an attempt to heal the wounds of past terrorism, the police department formed the Historical Enquiries Team (HET), a task force that is reinvestigating unresolved terrorism-related deaths.5 These investigations have resulted in criminal trials of some terrorism suspects, and there will likely be more prosecutions as the investigations progress.6 In addition to cases referred for prosecution by the HET, cases may reach the Diplock-type courts through an alternate route: the Director of Public Prosecution may certify any case for trial in a Diplock-type non-jury court if it is related to terrorism.7 For Northern Ireland to become a peaceful democracy, these cases must be tried by jury, rather than in non-jury trials reminiscent of the flawed Diplock court system.

II. DIPLOCK COURTS: AN UNFAIR MEANS

A. A Brief History of the Diplock Courts

In 1973 jury trials for crimes connected to terrorist activity were abolished as a result of Lord Diplock's report, which cited concerns of juror intimidation and "the danger of perverse convictions by partisan jurors."8 Lord Diplock believed that jurors would be incapable of performing their civic duty if they feared terrorist attacks.9 One commentator has echoed Lord Diplock's concerns, stating, "the effects of intimidation, or popular support for violence, or both, may result in witnesses refusing to come forward and juries in the clearest cases refusing to convict."10 Criminal jury trials were replaced in some instances by the Diplock court system, where a single judge sits as the trier of both law and fact.11

Diplock trials were used for about one-third of all serious cases in Northern Ireland until the end of the 1990s.12 Procedurally, the Director of Public Prosecutions (DPP) was responsible for determining whether an incident warranted criminal prosecution. If the DPP decided a case should go to the courts, the Attorney General then made the decision whether to try the suspect(s) by a jury or in a Diplock court." The Northern Ireland Human Rights Commission was concerned with the amount of power vested in the DPP, particularly the DPP's ability to conduct a non-jury trial without showing a risk of interference with the administration of justice.14 The Diplock court system procedures also allowed the police department to improperly participate in the decision regarding when a suspect was to be tried by a Diplock judge rather than a jury.15

B. Abuse in the Diplock Court System

Judges in Diplock courts applied a lower standard of admissibility, which resulted in many Diplock court cases relying on coerced confession evidence that would have been held inadmissible in a jury trial.16 At one point, 90 percent of Diplock cases relied on confessions obtained through "intensive interrogations" as primary evidence.17 Opportunities to obtain coerced confessions were increased in the Diplock court context by the Detention of Terrorists (Northern Ireland) Order 1972, which allowed suspects to be detained for twenty-eight days without a hearing or access to counsel.18 This process of internment, the arrest and detention of individuals suspected to be members of illegal paramilitary groups, affected 1,981 people. …

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