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Lawyers working on cases dealing with Northern Ireland’s troubled past know that this field of legal work develops slowly. Sometimes, however, developments occur at an unexpected and unwelcome speed. Such has been the case this week. From the collapse of a controversial trial to the reporting of a legislative “amnesty”, the legacy of the Troubles remains an indelible part of both judicial business and daily life.
The fatal shooting of Joe McCann (The Queen v Soldiers A & C)
Joe McCann had been a member of the Army Council of the Official IRA. In 1972, he was the Officer in Command, First Battalion of the Official IRA and in charge of the Markets area of Belfast. He was suspected to have been involved in the murders of two soldiers and the attempted murders of four police officers (among other serious incidents). In the afternoon of 15 April 1972, he was seen by a Royal Ulster Constabulary (RUC) police officer who alerted a nearby patrol of paratroopers which included soldiers A and C. The police officer tried and failed to arrest Joe McCann, who was running away from him and the paratroopers. The police officer shouted at him to halt but he kept running. There was then sudden gunfire from behind the police officer, where the paratroopers were standing. Joe McCann was struck by two or possibly three bullets and died quickly at the scene. No forensic analysis was undertaken to determine who had fired the fatal shot.
Re B’s application [2020] NIQB 76 was a challenge to a decision to prosecute a soldier for offences going back to 1972. Part of the small but politically divisive cohort of prosecutions arising out of the Troubles in Northern Ireland, Re B provides a classic example of how courts approach the issue of fairness in criminal prosecutions for historic offences.
“B” is a former soldier of the British Army who had been serving in Northern Ireland. On 31 July 1972, the Army launched “Operation Motorman” to clear so-called “no-go” areas in Belfast and Derry, which had become highly problematic and dangerous for security forces at the time.
In the early hours of 31 July 1972, B was part of a company of soldiers deployed in the Creggan Heights area of Derry. He was armed with a 7.62 x 51 mm calibre General Purpose Machine Gun. At around this time, three local people were also in the area: Thomas Hegarty, his brother Christopher Hegarty and their cousin Daniel Hegarty. At some time shortly after 4.15 am, there was a burst of machine gun fire. When it stopped, Daniel Hegarty lay dead on the street, having been shot twice in the head. He was 15 years old. Christopher Hegarty was also wounded in the shooting, but survived.
The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent) [2017] NICA 42 (29 June 2017) – read judgment
Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times. The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.
Let me start with a much quoted proposition derived from Strasbourg law.
when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.
Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:
the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.
R (o.t.a A and B) v. Department of Health [2017] UKSC 41, 14 June 2017 – judgment here; previous post here.
Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).
Was it unlawful for the Secretary of State for Health, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge?
No, said the Supreme Court (Lord Wilson, who gave the lead judgment, and Lords Reed and Hughes, but with Lord Kerr and Lady Hale dissenting).
Background law and facts
The law on abortion in Northern Ireland is governed by the Northern Ireland Assembly. Abortion is only lawful there if there is a threat of long term psychiatric or physical injury to the mother. As this is difficult to prove, a steady stream of women come from Northern Ireland to secure abortions, mostly from private clinics that charge a fee for the service as they are unable to obtain a termination free of charge under the English NHS. Continue reading →
In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.
Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.
McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) – read judgment
A challenge to the legality of the UK’s departure proceedings from the EU has been rejected by the High Court in Northern Ireland. In a judgment which will be of considerable interest to the government defending a similar challenge in England, Maguire J concluded that the UK government does not require parliamentary approval to trigger Article 50 of the Lisbon treaty. This is, par excellence, an area for the exercise of the government’s treaty making powers under the Royal Prerogative.
This ruling was made in response to two separate challenges. One was brought by a group of politicians, including members of the Northern Ireland assembly, the other by Raymond McCord, a civil rights campaigner whose son was murdered by loyalist paramilitaries in 1997. They argued that the 1997 peace deal (“the Good Friday Agreement”) gave Northern Ireland sovereignty over its constitutional future and therefore a veto over leaving the EU. Like the English challengers, they also argued that Article 50 could only be invoked after a vote in Parliament.
At centre stage in the English case is the means by which Article 50 TEU is to be triggered and the question of the displacement of prerogative executive power by statute. While this issue was also raised in the challenge before the Northern Ireland court, Maguire J also had before him a range of specifically Northern Irish constitutional provisions which were said to have a similar impact on the means of triggering Article 50. To avoid duplication of the central issues which the English court will deal with, this judgment concerned itself with the impact of Northern Ireland constitutional provisions in respect of notice under Article 50.
However, the judge had some clear views on the role of prerogative powers in the Brexit procedure, which, whilst respecting the outcome of the English proceedings, he did not hesitate to set out. Continue reading →
Silence is the language of God, all else is poor translation.
(Jalāl ad-Dīn Muhammad Rūmī , 13th Century Persian Islamic scholar and poet)
These words were the last in the ruling by DJ McNally in the Belfast county court, acquitting Pastor McConnell of grossly offending Muslims in a sermon that had been delivered in church but also transmitted over the internet. The Pastor had declared from the pulpit the there were more and more Muslims “putting the Koran’s hatred of Christians and Jews alike into practice”, and the sermon had continued in a similar vein. Continue reading →
Does the publication of photographs of a child taken during a riot fall within the scope of Article 8 ECHR?
It depends, says a Supreme Court majority, specifically on whether there was a reasonable expectation of privacy. Either way, the Court in J38 agreed that whether or not the 14 year-old Appellant’s right to respect for private life was in play, the publication of police photographs of him was justified in the circumstances.
Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that
It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.
J19 and Another v Facebook Ireland [2013] NIQB 113 – read judgment
The High Court in Northern Ireland has chosen to depart from the “robust” Strasbourg approach to service providers and their liability for comments hosted on their sites. Such liability, said the judge, was not consonant with the EC Directive on E-Commerce.
This was an application on behalf of the defendant to vary and discharge orders of injunction dated 27 September 2013 made in the case of both plaintiffs. One of the injunctions restrained “the defendant from placing on its website photographs of the plaintiff, his name, address or any like personal details until further order.” These interim injunctions were awarded pursuant to writs issued by the plaintiffs for damages by reason of the publication of photographs, information and comments on the Facebook webpages entitled “Irish Blessings”, “Ardoyne under Siege” and “Irish Banter” on 11 September 2013 and on subsequent dates. Continue reading →
JR1, Re Judicial Review [2011] NIQB 5 – Read judgment
A decision of the Northern Ireland high court has highlighted the continued narrow definition of “standing”, or the right to bring a claim, under the Human Rights Act 1998.
An 8-year-old child applied to bring a claim, which included a challenge under Article 2 of the European Convention on Human Rights (the right to life), to the decision by police to introduce tasers in Northern Ireland.
PF and EF v UK (Application No. 28326/09) – Read judgment
The European Court of Human Rights has dismissed an application brought against the police in Northern Ireland by a mother and her daughter who argued the police had failed to take sufficient action to protect them from loyalist riots on their route to primary school.
The court held that the police must be afforded a degree of discretion in taking operational decisions, and that in this case the police took all “reasonable steps” to protect the applicants.
One of the main human rights debates of the General Election is whether the Human Rights Act 1998 will be replaced with or bolstered by an American-style Bill of Rights.One aspect of the debate which has been mostly ignored in the British media has been the impact which a Bill of Rights would have in Northern Ireland.
In November 2009, the Northern Ireland Office published A Bill of Rights For Northern Ireland: Next Steps, an interim report proposing that a separate Bill of Rights be drafted for Northern Ireland, on the basis that:
The need for an additional human rights framework that reflects the particular circumstances of Northern Ireland was recognised in the Belfast Agreement and given shape through the commitment to set up a Bill of Rights Forum as part of the St Andrews Agreement… The fundamental principle of mutual respect for the rights and freedoms of all the people of Northern Ireland has been at the heart of this progress, and still has a crucial role to play in its future success.
The Northern Irish Human Rights Commission responded in February, welcoming the proposal to produce a separate Bill of Rights. However, the Commission was sharply critical of the tone and content of the substantive proposals. Amongst other things, it accused the proposal of failing to take appropriate account of international standards and of suggesting that existing human rights standards are actually lowered.
The Committee for the Administration of Justice (CAJ), an independent human rights organisation, have also recently published their own response to the interim report, and have also argued that the proposals are too weak and do not go far enough in increasinghuman rights protections. CAJ say:
A Bill of Rights is one of the final parts of the human rights jigsaw; it ensures that rights currently enjoyed cannot be taken away at the whim of any government. It is intended to ensure, in a divided society, that whoever exercises governance over this disputed ground cannot rule without respecting the rights of everyone who lives here. It also ensures that those who are not or do not identify primarily as part of the two main communities will have their rights respected also.
The Bill of Rights for Northern Ireland is clearly in its early planning stages, and may not go ahead at all. That said, it is more advanced than English and Scottish proposals, which, if they ever happen, will certainly not do so until long after the Election.
Read more:
Well informed posts on the topic on the Human Rights in Ireland Blog can be found here, here, here, here, here and here
Relatedly, the Chair of the Scottish Human Rights Commission writes in the Guardian about the Bill of Rights and his fears that it may create a “two-tier” system
The Scottish and Northern Irish Human Rights Commissions have issued a joint statement responding to the Conservative Party’s plans to repeal the Human Rights Act and introduce a British Bill of Rights.
Professor Alan Miller, Chair of the Scottish Human Rights Commission (SHRC), is quoted on their website. Interestingly, he makes the link between the HRA and devolution for Scotland: “The Human Rights Act in combination with the Scotland Act is an important pillar of devolution for Scotland. Rather than needing to be repealed it needs to be progressively built upon in Scotland.” Justice, a Human Rights organisation, made the same point on devolution in a recent report.
Professor Monica McWilliams, Chief Commissioner of the Northern Ireland Human Rights Commission said: “Nowhere in the world has the repeal of existing human rights protections been a starting point for discussing a proposed Bill of Rights.”
Read more:
The Joint Statement (also reproduced after the page break below)
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In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court 
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