It is important amidst all the discussion about Patten legislation, name changes, the George Cross, implementation plans and human rights standards, to remind ourselves of the reality of policing in many communities across Northern Ireland. The above is the account given by Bernard Griffen, and accepted by Belfast Crown Court, about what happened when he was arrested by a police patrol in Ardoyne in February 1998. As the trial judge, Mr Justice McLaughlin, commented however while "the treatment meted out to him was bad enough, … what followed thereafter was even worse." The trial judge describes what happened next:

"There then followed a shameful episode during which the three police officers engaged in an attempted and systematic cover-up of what had taken place. This involved making false allegations that they had been assaulted by Mr Griffen in the course of an attempt to arrest him and during which he had resisted their efforts. Not only were false statements made but false entries to similar effect were made by Magowan in his notebook. He also induced two soldiers, one of them being Butcher, to sign a statement of a witness, part of which he knew to be false."

Only because one of the officers involved in the arrest, Lea, decided to tell his superiors about what had really happened, did the truth emerge. Otherwise Mr Griffen would have been brought to court and in all likelihood convicted. As those who practice law daily in the magistrates’ courts in Northern Ireland know, it is very rare that a magistrate will reject the evidence of three police officers and accept evidence that not only did they seriously assault a citizen but also engaged in a systematic cover up of that assault.

Rarely has CAJ been able to wholeheartedly endorse judicial comments in a case involving the police or army. We therefore believe it is all the more necessary to reproduce what Mr Justice McLaughlin said about the significance of the offences committed by the police officers.

Justice McLaughlin continued "Together with the threats to drop him off in the Shankill and to have him shot by the LVF it constituted a gross abuse of his human rights and was both shameful and shocking. Although only the defendant Neill was guilty of the assault all of the others were present within the limited confines of a police landrover when it occurred. They must have been aware that it was happening and yet did nothing to stop it. One would have expected that the first instincts of properly motivated officers would have been to intervene at once to put a stop to it. Yet not only did that not happen, rather they engaged in a systematic cover-up of their behaviour, and attempted to frame Mr Griffen on charges of which he was not guilty, in order to avoid the consequences of the criminal attack which had taken place on Mr Griffen. In my opinion this breakdown in discipline calls for the most careful consideration by the police authorities to consider ways of ensuring that the same conduct will never be repeated. That is the minimum response which the public are entitled to expect."

Two of the police officers involved in the incident were jailed, one for two years, and one for one year. The officer who blew the whistle on the incident received a £1000 fine as did a soldier who had a relatively peripheral role in the matter.

The trial judge indicated that he had received eleven testimonials from officers from the rank of sergeant up to retired chief superintendent in relation to one of the defendants, Michael Magowan. One of them stated that Magowan had perhaps acted in the way he did in order to avoid bringing "embarrassment on the organisation he loves, which has been under so much national and international scrutiny" and that he had "misplaced his loyalty and tried to cover-up a potentially embarrassing situation." The implication of this is that it is embarrassing for the RUC for such instances to be opened up to scrutiny, not that it is embarrassing that they occur.

Other officers also got themselves into a potentially embarrassing situation in relation to Bernard Griffen a few months after his arrest. Perhaps again these officers were acting out of a sense of misplaced loyalty when they raided Mr Griffen’s house, claimed they found an explosive device in the roofspace, arrested Mr Griffen and his brother, charged them and kept Mr Griffen on remand for three months. The charges were then mysteriously dropped without explanation. The decision could hardly have been taken because of insufficient evidence, due to the fact that in Northern Ireland if arms or explosives are found on your property you are effectively presumed guilty. Mr Griffen’s solicitors have asked unsuccessfully for a forensic report on the alleged bomb. They described the circumstances surrounding the alleged find as "highly suspicious". Of course if Mr Griffen had been convicted of possession of a bomb, his evidence against the officers involved in the first incident would have been open to serious question.

It is of course possible that Mr Griffen simply had the misfortune to become entangled with three "bad apples" on the one night in the one land rover. Equally it may be that his luck simply deteriorated when a squad of other "bad apples" raided his house.

On the other hand it could be that there is a serious and widespread problem with policing and that other officers share the attitudes displayed by those in the landrover. Unsurprisingly the RUC do not agree. When responding to the Patten proposal that all current officers take a new oath to human rights and "accord equal respect to all individuals and to their traditions and beliefs," the RUC stated "[M]any officers believe that taking a new oath is unnecessary and implies that they have not, throughout their service, been committed to faithfully discharging the duties of their office impartially and with fairness and due regard to human rights."

The government appears to endorse this position. They have decided that any new oath will not include Patten's reference to respecting traditions and beliefs, and existing officers will not have to make any commitment to uphold human rights.

Mr Justice Kerr who heard the case decided in favour of Mr Treacy and Mr Macdonald, but on a very narrow ground. The barristers had argued that the Lord Chancellor had no power to act as he did. Further arguments claimed that any such declaration was a question for the Lord Chief Justice, and that they were already Queen’s Counsel due to the fact that the warrant of appointment from the Queen had been issued.

The outcome was the referral of the issue back to the Lord Chancellor for reconsideration and it is not clear what action he will take as a result and how quickly. Given that it is now a year since Mr Treacy and Mr Macdonald applied to become QCs and this case was initiated before Christmas, there is a concern that the matter be resolved as quickly as possible.

The successful ground of the application revolved around the Lord Chancellor’s understanding of the perception of the declaration at the time when he decided that it should apply to those taking silk in 1999. In the course of the case minutes of meetings and correspondence between the Lord Chancellor and both the previous Lord Chief Justices, Sir Brian Hutton, and the present Lord Chief Justice, Sir Robert Carswell, became public.

For example, some time after the Bar Council’s Elliott Committee reported with its recommendation, adopted by the Bar Council, that the declaration should not be retained, the Lord Chief Justice (by then Sir Robert Carswell) wrote to the Lord Chancellor enclosing a copy of the Elliott report and stating

In fact it is now clear from the judgement of Mr. Justice Kerr, that the judges had not been consulted after the publication of the Elliott report.

The letter enclosing the report included the following statement from Lord Chief Justice Carswell:

In addition, at a subsequent meeting between Lord Chief Justice Carswell and the Lord Chancellor, it was agreed that the Lord Chief Justice would write to the Bar Council about "silk issues" other than the declaration and that the Lord Chancellor would not express any view on the declaration, there being "good reasons for putting this on the back burner".

In April 1999 applications for silk were invited, and it appears that it was at this stage that the Lord Chancellor made the decision to retain the wording of the declaration. It appears he did so to preserve harmony between this jurisdiction and England and Wales (the same declaration is used there). He did not consult about the wording as he believed there to be no "live controversy" about the issue in April 1999. Of course the Lord Chancellor was under the mistaken impression that the Northern Ireland judges had been consulted about the matter in the light of the Elliott report. This impression came, it would appear, from his contact with Lord Chief Justice Carswell.

Readers will also be interested to know that in his judgment Mr Justice Kerr examined the issue of whether the declaration itself was discriminatory. He concluded that because the declaration was a declaration of office (as opposed to a declaration of allegiance) and the applicants were willing to be known as Queen’s Counsel and be appointed by the Queen "the declaration to be made cannot be said to be directly discriminatory".

The judgment concludes

In addition the Lord Chancellor’s "conclusion that the matter of the declaration was uncontroversial must surely have been influenced by his understanding that the judges supported the retention of the existing declaration….If he had realised that the judges had not expressed a view on the Elliott recommendation, it is at least likely that he would have consulted both the Bar Council and the Bench".

It was on this narrow ground therefore that Mr Treacy and Mr Macdonald’s application was successful. It is to be hoped that the Lord Chancellor will now act on what is the view of the profession itself and allow Mr Treacy and Mr Macdonald to be called to the Inner Bar, a distinction it has never been disputed that they deserve.

Unfortunately, our first reading of the legislation is one of dismay and disappointment. Although CAJ was critical of the final Patten report, feeling that it should have gone further in a number of areas (for example local accountability, emergency powers, and dealing with the legacy of the past), we also accepted that it provided an exciting way forward and a creative and imaginative programme for change. How disappointing to see - nine months later - a legal draft which does not even go as far as Patten. Worse still, while claiming to implement Patten, it in fact risks undermining some of the important principles which Patten propounded.

The first fundamental concern readers may have when reading the draft legislation is the question of police accountability. The importance of this issue is one which is very widely shared across the whole community, and which was raised time and time again, in different guises, at the Patten public meetings. At the level of the Policing Board, the Commission argued that the new Policing Board would only be rendered a more equal ‘partner’ in the tri-partite relationship (alongside the Chief Constable and the Secretary of State) if it were vested with powers to call for reports from the Chief Constable and initiate inquiries. Such powers would allow the Board to give some meaning to its responsibility to hold the Chief Constable to account for his/her ‘direction and control’ of the police. Patten argued that the Board should have the power to initiate inquiries, and very importantly that "all members of the police service be required to cooperate with that inquiry".

The legislation, however, greatly narrows the potential of the proposed inquiry powers. Patten had explicitly argued that the Chief Constable’s right to challenge this requirement from the Policing Board for an inquiry should be "strictly limited"; but in the draft legislation five distinct grounds for appeal to the Secretary of State are proposed. Amongst other things, it is proposed that the Chief Constable be able to argue that an inquiry not be held because "it is being investigated by a statutory authority" and/or "because it would, or would be likely to prejudice the ….administration of justice". Grounds this broad would appear to allow a Chief Constable to appeal a Policing Board decision to inquire into anything that is currently being investigated by the police (for example, the Pat Finucane case, even though the murder inquiry is over eleven years old). Moreover ‘prejudicing the administration of justice’ could presumably be interpreted to encompass anything that might undermine police morale. It is indeed as elastic as the term "national security" which is already one of the five grounds provided for the Secretary of State and Chief Constable, and which Patten unfortunately did not seek to define clearly.

Nor, is this the only sense in which the legislation undermines Patten’s attempt to give the Policing Board some ‘teeth’. The Policing Board has to agree by weighted majority vote to the need for an inquiry; it is the Secretary of State who has to approve of the person asked to carry out the inquiry; and at any time the Secretary of State can direct that the inquiry not be held, or that it not be continued.

This undermining of the mechanisms for democratic accountability is also noticeable at the local level. Patten had chosen not to devolve very much authority or responsibility to the civic oversight bodies being established at District Council level, but made it quite clear that the local District Commander and local police should at least be obliged to "take into account" the views conveyed to them via these community fora. However, this obligation is not to be found in the draft legislation. One must wonder if the Partnerships will differ substantially from the Council-led Community Police Liaison Committees that exist now and which have been generally criticised as ineffective talking shops?

A highly significant mechanism for ensuring police accountability is the independent complaints system represented by the establishment of a Policing Ombudsman (which will formally come into operation in the Autumn). This decision was warmly commended by Patten. Indeed, Patten wanted to strengthen and add to the current powers laid down in the Police Act 1998 and, most importantly, recommended the power of investigating police practices (rather than investigating solely individual complaints against individual police officers). However, the new legislation does not introduce any new powers and appears to limit those that exist already. A time-limit (as yet unspecified) has been introduced, so the Ombudsman cannot investigate something if the action, or alleged action, is outside the prescribed period. This would appear to run counter to Patten’s request for the Ombudsman to have access to all past RUC reports. There is also a new requirement being proposed ie that only such information as "reasonably" is required need be supplied. But the draft legislation does not make it at all clear that "reasonableness" will be determined by the Ombudsman.

On the specific references that Patten made to human rights and its centrality to policing, little can be found in the new police legislation. There is to be an oath referring to upholding fundamental rights, but the text departs from Patten in one interesting regard. Patten asked that officers respect "the traditions and beliefs" of people, but this element has disappeared from the legal text. Of most concern is the fact that the oath will be sworn by new officers but not existing officers. The Policing Board was to monitor the performance of the police service as a whole in respect of human rights, but the legislation refers only to its role in relation to the Human Rights Act. Does this mean, for example, that a decision on the part of the Board to monitor closely the compliance of officers with the UN Code of Conduct for Law Enforcement Officials (referred to in the police guidelines on plastic bullet usage) would be challengeable in law?

These are just some of the concerns that occur on an early reading of the draft Bill. But the legislation is not all that CAJ needs to scrutinise closely. Another very important concern will be to study closely the Implementation Plan, aspects of which are being leaked to the media at the time of writing. In discussions with the Patten Action Team at the Northern Ireland Office, we were told that the Secretary of State’s statement to parliament in January had not responded to each and every one of Patten’s recommendations, and CAJ could not assume that silence meant consent. Accordingly, we will want to see an Implementation Plan which gives a formal government response to each and every one of the Patten recommendations, accompanied by a detailed timetable. The draft we have seen to date suggests that much is to be left to the discretion of the Chief Constable, and this is totally unacceptable if one wants to secure proper accountability.

This last point brings us to the third major concern CAJ has in the context of Patten follow-up. We assume that the Oversight Commissioner, proposed by Patten nine months ago in the report, will be named when the legislation and Implementation Plan is laid before parliament and the general public. CAJ has expressed its disappointment in any and every fora at the failure to appoint someone already to this crucial post.

In an innovative move, Patten had recommended "an eminent person from a country other than the UK or Ireland should be appointed as soon as possible (emphasis added) with responsibility for supervising the implementation of our recommendations". The intention was that the Oversight Commissioner would act as "a useful validator of the implementation process….(and) would provide an important impetus to the process of transformation" . Very importantly, the Patten report envisages that the Oversight Commissioner would report publicly "on the extent to which any failures or delays are the responsibility of the policing institutions themselves or due to matters beyond their control". In the absence of such a scrutiny mechanism, change risks being solely directed in the manner, and at the pace, dictated by those who have managed (or mis-managed) policing in the past. Given the totally opaque nominating process, the inordinate delay in appointment, and indications that we have received suggesting that the Commissioner will monitor implementation of the NIO/RUC implementation Plan, rather than Patten's recommendations, one is left wondering how innovative or influential this appointment can in fact be?

Part of the new evidence involves two witnesses who came forward following an appeal for any information in relation to the case which was made by the Irish News. Essentially the two witnesses were able to recall another person being in front of Mr Walsh in the alleyway prior to his arrest. During his initial trial, the judge referred to the issue of the "man in front", however this new evidence was not available at the time of his trial.

Having regard to the totality of these matters, the Commission have concluded that there is a possibility that the Court of Appeal would consider that the corroborative weight to be given to the soldier’s trial evidence is reduced by the information about his new evidence and that this would be a matter that the Court would take into account in assessing the respective credibility of the accounts of the two soliders on the one hand and Mr Walsh on the other.

Mr Walsh has been tireless in his long hard fought campaign to clear his name. Mr. Walsh clearly hopes that this new evidence will help prove his innocence so that he and his family can put this nightmare behind him.

There have been meetings of the Criminal Justice and Emergency Laws, policing, and equality subgroups.

Colin Harvey spoke at an Amnesty conference on the Bill of Rights consultation.

Martin spoke at the British Council Conference on human rights which was held in Belfast. He also met with visiting Indonesians to brief them on CAJ’s work.

Paul and Martin gave media interviews on the case of two police officers being sentenced.

Michael Frahm from the Eirene project came on a field visit for two weeks with a view to replacing Arist von Hehn at the end of the summer.

We would like to thank Rose Perry and Eilis for their consistent support every month with Just News.

Amnesty International (NI) Conference 2000 was held in Belfast. Speakers included a welcome from Patrick Corrigan, Amnesty International's N. I. development officer; and followed by Sebastaio Gutteres, an East Timorese student leader; Alison Wall, AIUK arms campaigner; Hoda Mohajerani, School of Oriental and African Studies, London; Sharon Cristoph on Saudi Arabia's secrecy and suffering. The conference also had a session on the Northern Ireland Bill of Rights consultation and on running an effective Amnesty Group.

For further information on the conference, contact Amnesty International, 801 Stranmills Road, Belfast, BT9 5AD Telephone: (028) 9066 6326 or Fax: (028) 9066 6164.

But this ‘Brave New World’ depends on a number of factors - not least Travellers, nationalists, young people, people with disabilities, and indeed all those referred to in the statutory duty, actively engaging in the decision making process and making their views heard. But equally important is the fact that policy makers have to learn that, in future, decisions will not be made ‘for’ but ‘with’ people.

A practical seminar organised by NIVT in Cookstown recently brought this debate another step further on with a discussion entitled "Models for Involvement for Excluded People". As part of a cross-border, cross-national, European project, the seminar proved very helpful for CAJ as we begin to think about what constitutes effective consultation, involvement and participation. Some principles are beginning to emerge which should, if implemented, turn policy-making upside down - and thereby make it more truly responsive to the needs of people on the ground. The basic principles are as follows:

Firstly, consult widely before even starting to consult on the substance of an issue. Consult with others, for example, to determine who needs to be involved (and always try and reach beyond the ‘usual suspects’), about how best to involve them, and whether particular efforts will be necessary to involve particular constituencies of interest.

Secondly, the form of consultation will of necessity vary according to the audience to be reached. Travellers cannot be consulted in the same way as the Chinese community; elderly people and children will require different approaches. Forms of consultation will include face-to-face meetings, written exchanges, formal/informal discussions, outreach work etc. and will need to reflect the needs of all the affected groups.

Thirdly, policy makers must be prepared to ‘front-load’ consultative processes - expending time, money and staff resources at earlier stages of a process to ensure that all the necessary people are involved in a timely and effective fashion. This can appear to be costly, but in fact often avoids wasting money at a later stage. It also reflects the fact that policy makers should see it as a natural part of their job to consult affected groups, and not an add-on, after-thought, or something consultees should be grateful for!

The seminar, as is the way of such events, was easily able to list a whole series of problems in consultative processes as they operate currently. Amongst other things, people talked of - physical barriers (venues, transport, childcare, location of offices etc), technical barriers (inaccessible formats for consultation, literacy, texts full of jargon, formality of meetings, format of information, fixed processes, resources), and institutional and cultural barriers (different time zones with policy makers working from 9-5 and the people affected by policies available in the evenings or weekends, power imbalances, lack of openness and accountability, stigmatising, tokenism). We also discussed the motivational problems created when groups have negative experiences and are dubious as to the weight which will be given to their concerns.

The list of barriers can appear very depressing, but there was a strong sense that policy makers could overcome many of the problems highlighted if they at least addressed the three principles outlined above.

In trying to develop some standards in this area, CAJ is seeking to build on the work it has already done as part of the broader "Equality Coalition" of groups working on issues of disability, gender, Protestant and Catholic disadvantage, sexual orientation, age and race.

In speaking of the work of the Coalition in December 1998, Mary Robinson, UN High Commissioner for Human Rights, said: "You have discovered how crucial to the concept of rights is the concept of participation. People should not be just docile subjects of rights: rights are never "given" to people…..The alliance has produced an understanding of participation which allows people to become agents of their own change".

Draft Equality Schemes, produced by every public body and currently in circulation for comment, mark the beginnings of the process of turning policy making upside-down. Only as public bodies begin genuinely and effectively to ensure effective participation in the policy making process by those who are most affected by their policies, will we begin to see the fairer and more just society that Northern Ireland deserves.

Civil Liberties Diary

1 Apr The Equality Commission published its guidelines for public bodies on the new statutory duty under which bodies are required in their policy-making to "have due regard to the need to promote equality of opportunity" and to have regard to the desirability of promoting community relations.

It was reported that the Saville inquiry had received no photos of the march on Bloody Sunday even though 10 military photographers were present; the Ministry of Defence has supplied photos of soldiers and some of those arrested plus cinecam footage of march.

The Belfast Telegraph was granted leave to apply for judicial review of an Equality Commission decision to investigate possible discrimination in employment conditions.

3 Apr "Your Life – Your Health", a report launched at a conference organised by the Southern Health Board, explored the link between poverty and ill-health and found that people living in deprived areas can be twice as likely to be admitted to hospital as the better off.

After an attack on two members of the Chinese community, the Chinese Welfare Association reported an alarming increase in the level of racially motivated crimes over previous months.

5 Apr Judgement was reserved in the judicial review case being taken against the DPP decision not to reveal the reasons why officers were not charged after David Adams won £30,000 compensation for injuries sustained in custody.

Newry and Mourne Council stated that it was to launch a review of employment practices in the Council after concerns were raised by Councillors about terms and conditions for workers.

6 Apr The European Court of Human Rights ruled admissible cases involving the shooting of twelve men by security forces in Northern Ireland .

United Nations Special Rapporteur on the Independence of Judges and Lawyers, Dato Param Cumaraswamy, delivered his sixth annual report to the United Nations in Geneva. He repeated his calls for a full inquiry into the killing of lawyer Pat Finucane, and the related allegations of security force collusion. A further report called for the end of the use of plastic bullets and the Special Rapporteur for Freedom of Opinion and Expression, Abid Hussain, called for the publication of the Stalker, Sampson and Stevens reports.

10 April A member of staff of Queen’s University, John Cousins, was awarded £150 000 damages in a religious discrimination case, one of the biggest sums ever awarded in Northern Ireland. The case involved victimisation after a previous discrimination case.

13 Apr The appeal court ruled in favour of three women (Vice-President and Chair of the Fair Employment Tribunal and a Social Security Commissioner) seeking to take their case for equal pension rights to an industrial tribunal.

14 Apr A survey carried out by University of Ulster researchers found serious levels of racism among those interviewed, for example, over a third said they would be unwilling to accept a member of a minority ethnic community in their workplace.

The Chair of the Northern Ireland Human Rights Commission, Brice Dickson, expressed concern that the body would be unable to fulfil its mandate effectively due to inadequate funding.

The Bloody Sunday inquiry placed in contempt Toby Harnden, a Daily Telegraph journalist who refused to give details to the inquiry of the identity of a soldier he interviewed and the full content of the information supplied.

15 Apr Concerns were expressed when a judge, in sentencing a man to five years for killing his wife, said there had been "a measure of provocation by your wife’s threatened departure".

20 Apr The Independent Commission for Police Complaints announced that it would investigate the death of a man killed by police during a call-out to deal with a domestic disturbance.

24 Apr It was reported that the Dublin government was to press the British government for an independent public inquiry into the murder of Robert Hamill who was beaten to death in Lurgan in 1996. There has been ongoing criticism of police officers for failing to intervene.

Just News welcomes readers' news, views and comments.

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The views expressed in Just News are not necessarily those of CAJ.