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“In
all democracies the law is part and parcel of a wider
notion called “the rule of law”. By this
is meant that no-one, whether an individual, a company,
a private body or an organ of the government can be
above the law: the law must apply to everyone equally,
without unfair discrimination…..”
These are the words of none other than Brice Dickson,
current Chief Commissioner of the Northern Ireland
Human Rights Commission, writing in the introduction
to the 1997 publication “Civil Liberties in Northern
Ireland: The CAJ Handbook.”
Fine words and ideals you must agree. In chapter three
of the book, “Powers of the Police” Dickson
outlines the powers of the then RUC “which people
in Northern Ireland are most likely to encounter in
everyday life”. He continues to lay down then
the rights of police under the normal legislation
as set out in England and Wales via the Police and
Criminal evidence order (PACE) 1989.
In exemplifying this act he tells us that contrary
to popular belief the general rule is that the police
do not have the right to stop and question people.
They can only attempt to stop and question
people.
He correctly states that whilst many people will comply
with such a request, that there is no obligation to
stop or answer questions. The PACE order also confers
upon the police the power to stop and search, but
it does not remove the persons legal right not to
be stopped for questioning. In fact to stop a person
lawfully the police must make an arrest.
During the period of detention, the police can ask
questions, but again the person is under no legal
obligation to reply. Dickson actually states that
when questioned at any time, “……it
is very often sensible to remain silent until a solicitor
is present.”
Again this is highly laudable and imbued with the
spirit of egalitarianism.
It is also the point,in the context of Northern Ireland,where
things begin to go sour.
The Criminal Evidence (NI) order of 1988, dictates
that silence during questioning may later provide
corroborative evidence that the accused is guilty
of an offence. Data accrued in the course of any “interview”
can then by at once destroyed by the police or “stored”
indefinitely.
Under the auspices of the data Protection Act 1984
people cannot then access this material as it may
be deemed “required for the purpose of safeguarding
national security” or “held for the prevention
or the detection of crime”. When we add to this
section 25 of the Northern Ireland (Emergency Provisions)
Act 1996, we enter a land of legal grey areas as regards
the scope of these provisions. There are no stipulations
as to how much detail a person much provide in terms
of their identity, and their movements. There is a
supposed duty to “answer to the best of one’s
ability”, for which we can surmise that you must
give as much information as the police require before
they are satisfied.
For example an act of “terrorism” is deemed
as “any (other) incident endangering life”,
yet as Dickson points out this could relate to a fire
or a road traffic accident. In terms of vehicle checkpoints,
again there is no legal obligation to stop or produce
your licence. However it is an easy way to prove your
identidy,therefore proceed unhindered but at the same
time having handed your details to the police.
There is nothing overtly sinister in these procedures,
at least in a “normal” society. In Northern
Ireland however there is a lot of ground between the
theory of law and the reality of its application.
Therefore it was with a grim sense of amusement that
I listened last week to the comments of PSNI Chief
Constable Hugh Orde wax lyrical about about the depth
of progress made in curbing paramilitary criminality
on the event of his first anniversary in the job.
As usual Mr.Orde involved himself in commenting on
political issues that a police officer even in the
six counties,should have no involvement in. Following
on from his disgraceful remarks earlier this year
about the speculated outcome of “The Saville
Inquiry” in 2004, he gave us a verbal polemic
on how mainstream republicans have a lot more to do
to drag the peace process out of crisis.
“At
some stage they (the IRA) have to make a decision,
and that’s what normalisation is all about.”
He then continued by voicing his disappointment at
how the political process had not advanced in tandem
with the improvements in policing.
Even making allowances for the fact that we are still
by no means a normal society by any definition of
the word, a stricture of any acceptable policing organisation
is the non-interference of that organisation in politically
sensitive issues. The irony of all this is that the
comments were made after the announcement that an
international conference on police corruption is to
be held in Belfast in November this year.
In attendance at that conference will be Metropolitan
Police Commissioner John Stevens who has in total
spent fourteen years illustrating almost institutionalised
abuse of the above legislation and its legal predecessors,
by the RUC/PSNI. Surely the irony of the location
of this meeting will not be lost on Stevens and the
organiser, Police Ombudsman, Nuala O’Loan, whom
I suspect may be having a mild chuckle to herself
about this.
Reading between Orde’s comments I would suggest
that he thinks that a cosmetic name change for the
police service has transmogrified the inherent flaws,
outlook and actions of the RUC/PSNI since its foundations
and that it has also changed the attitudes of nationalist
and republican people towards it. It may have tempered
the attitude of political parties in their reaction
to the service, but if its Chief Constable cannot
make a distinction between the application of law
and the political arena it does not bode well for
his or the long term future of the PSNI; particularly
in light of that organisations damning and murderous
history, not forgetting that they did this with a
little help from their friends. Thank God we no longer
have to deal with the Special Powers Act, because
as we can see that has had a cosmetic name change
too.
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