Like
the sinner who prayed to receive chastity, but then
added not anytime soon, a British minister proclaimed
that Diplock courts will be abolished, but not for
eleven months and not thereafter in cases where
crown prosecutors so request. In short the crown
will restore jury trials to all Republican political
suspects, except those currently charged who will
be dealt with before the measure takes effect, and
those Republicans charged thereafter upon the routine
Crown prosecutor's request. No doubt the British
will herald this abolition of Diplock courts as
an important advance, preparing the way for full
Republican and nationalist endorsement of the constables
enforcing British laws in the six counties. In actual
fact, an analysis of this announcement, against
the background of British courts and their dealings
with Irish political suspects, shows how little
changed since the Stormont Deal. Such an analysis
will raise key political questions that must not
be ignored.
ARSENAL
It was British Brigadier General Frank Kitson, who
after serving in Belfast, set forth the alternative
roles which the legal system might play. The crown
legal framework could of course be administered
as an institution of justice, or in the alternative
serve as "just another weapon in the government's
arsenal", little more than a propaganda cover
for the disposal of unwanted members of the community.
The creation, existence and continuation of Diplock
courts leave little doubt that the British chose
the latter alternative in so far as Irish Republican
suspects were concerned.
SUBSTITUTE
Diplock courts were designed to deal with a British
political problem, rather than with regard to justice
for those hauled before its docks.
Internment, re-introduced beginning on August 9,
1971, did away with such legal technicalities as
charges, bail, proof, trial or right to a legal
defense. The British authorized themselves to round-up
and lock-up political suspects, until such time
as a crown officer would see fit to sign an order
of release.
Difficulties arose. Dublin was shocked and embarrassed
into bringing the issue of torture of some internees
before the European Court at Strasbourg. Irish Republicans
fought a hunger strike and won special category
status. The numbers of political suspects held without
charge made a mockery of British claims that it
was upholding democracy. Internment became untenable.
A substitute which produced the same results but
erected a façade of legal protections had
to be found. A commission was empanelled and its
recommendations accepted by Westminster. Diplock
courts, named in dubious honor of the British Lord
heading the commission, were established.
JURORS
The cornerstone of the Diplock courts would be the
abolition of jury trials for political suspects.
Jurors, including some from areas like West Belfast,
South Armagh, the Bogside etc, could not be counted
upon to convict political suspects. Indeed jurors
might even have the temerity to disbelieve or to
dismiss sworn testimony by constables on issues
such as torture used to extract confessions. All
such decisions would be entrusted to the safe hands
of a British crown judge.
Several other far-sighted recommendations were also
legislated. Rights to bail pending trial were severely
curtailed so that a practice of internment by remand
was instituted. Suspects could be held without bail
for months or years before trial, sometimes only
to learn that there was insufficient evidence to
support charges in a Diplock court trial.
The burden of proof on the admissibility of confessions
was turned on its head. Instead of the crown being
required to prove that a confession was freely and
voluntarily made, it became the victim's burden
to prove that a confession had been obtained by
beatings or torture.
The victim of course was held in the custody of
five or six constables at the time of his so-called
"voluntary statement". As one solicitor
remarked, RUC members whose consciences were untroubled
by torture were rarely troubled by lying about it.
Years later Amnesty International would find that
almost eighty percent of those convicted were found
guilty based on confessions given at holding centres
like Castlereagh. It was simply a matter of those
crown servants who inflicted the torture telling
the crown's Diplock judge that the dedicated political
suspect confessed as a matter of conscience and
then immediately injured himself or herself. Jurors
of course could not have been counted upon to stomach
such testimony.
Other subtle devices were also in play. Solicitors
who fought too hard in the Diplock courts were informed
about threats conveyed through their clients. Belfast
solicitor Pat Finucane would be murdered in his
home on a Sunday morning, with information provided
a British Army agent Brian Nelson, and with weapons
provided by an RUC agent William Stobie. Rosemary
Nelson was assassinated in circumstances which showed
crown collusion. Cover-ups of the role of the crown
in both these matters continue to this day.
Legal
rules were changed to facilitate supergrass show
trials in which one paid perjurer could obtain freedom
and wealth by giving script testimony against former
friends and neighbors.
Diplock
courts became a conveyor belt, which remains an
integral component of a British strategy of criminalization
first in the H-blocks, and Armagh and now in Maghaberry.
QUESTIONS
Why should the British announce the abolition of
Diplock courts then nullify the initiative with
loopholes? SDLP member Alban Mc Guinness described
the crown initiative as "confused". In
reality the strategy could not be clearer. The initiative
will mean nothing to Republican suspects, beginning
with Sean Hoey, whose trials will commence within
the eleven month delay period. It will mean little
to Republican suspects yet to be charged, who can
be routinely denied a jury trial at the request
of the crown.
The British strategy seems clearly and solely directed
at Sinn Fein. The British want a Sinn Fein endorsement
of crown policing boards and indeed the crown constabulary.
Clearly the British want Sinn Fein locked in to
such an endorsement before the November, Stormont
deadline.
Diplock courts would be an obstacle to such an endorsement.
By announcing the abolition of Diplock courts, in
a meaningless measure that will not take effect
until much later, the British believe that they
have given another inducement to make Sinn Fein
backing for British courts and criminalization more
palatable. How will Sinn Fein answer?
