Report of the Commission to Consider Legal Procedures to deal with Terrorist Activities in Northern Ireland

Report of the Commission
to consider legal procedures to deal with
terrorist activities in Northern Ireland


Chairman: Lord Diplock

Presented to Parliament by the Secretary of State
for Northern Ireland by Command of Her Majesty
December 1972

Cmnd. 5185

Published in London by,
HER MAJESTY'S STATIONERY OFFICE, 1972

SBN 10 151850 1

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1. INTRODUCTION
2. SUMMARY OF CONCLUSIONS
3. SCOPE OF INQUIRY
4. THE BASIC PROBLEM
	Minimum requirements of a judicial process
	The effects of intimidation
	Possible changes in the rules of evidence
	The need for detention
5. MODE OF TRIAL
6. ARREST
7. BAIL
8. CONDUCT OF THE TRIAL
	Onus of proof of possession
	Admissibility of confessions
	Admissibility of signed statements
9. YOUNG TERRORISTS
10. THE SCHEDULED OFFENCES
APPENDIX - SCHEDULED OFFENCES

To the Right Honourable William Whitelaw, M.C., D.L., M.P., Her Majesty's Secretary of State for Northern Ireland.

1. We were appointed to consider "what arrangements for the administration of justice in Northern Ireland could be made in order to deal more effectively with terrorist organisations by bringing to book, otherwise than by internment by the Executive, individuals involved in terrorist activities, particularly those who plan and direct, but do not necessarily take part in, terrorist acts; and to make recommendations".

2. Our appointment followed upon the statement on security policy issued by the Northern Ireland Office on 22 September 1972, and was announced in full in a further statement on 18 October 1972. We held our first meeting on 20 October. Since then we have held a number of meetings, in private, during which we have heard evidence and discussed our findings.

3. From the outset we have treated our task as urgent. What we have learnt in the course of it about the conditions under which the ordinary criminal courts in Northern Ireland have to carry out their functions, and about the developments in the pattern of violence which have taken place even since we were appointed, has only served to increase our sense of urgency. It has not been any part of our function to inquire into individual complaints about the behaviour of members of the armed forces or the police in carrying out their duties of preventing and detecting terrorist crime or apprehending offenders. We are aware that complaints have been made. With violence so rife and political passions so strong, we should have been surprised if they had not, whether with justification or for purposes of propaganda; but we have not invited particulars of these nor have any been volunteered in response to the invitation to submit written evidence to us contained in the statement of 18 October. We have confined our attention to the legal procedures which are, or could be made available, for dealing with terrorist activities. Unlawful abuses, by individual members of the security forces or the police, of any of the procedures which we recommend, if they should occur, would be criminal offences or civil wrongs. They can be dealt with by criminal and civil proceedings in the courts against the offenders themselves.

4. In fact we have received only three written representations. The bulk of our evidence has been oral and was taken from people with responsibility for the administration of justice in Northern Ireland, but we have also heard from representatives of the Civil and Armed Services. Almost all the evidence was heard in London, but our Chairman made two visits to Northern Ireland, each lasting two days, during which he met members of the security forces on the ground. Like those who have been responsible for inquiries in the past in which there have been considerations of security, we do not intend to publish the evidence we have received nor the names of those who submitted it.

5. We are grateful to those who have given us the benefit of their advice and experience, and particularly to our Secretaries, Mr. J. F. Halliday of the Northern Ireland Office and Mr. A. H. Hammond of the Home Office. We have worked them hard to enable us to complete our Report within seven weeks of our being appointed. We owe a lot to them.

6. Although in one sense there has been an intermittent state of emergency in Northern Ireland since it first became a separate province we regard the emergency which led to our appointment as that which has resulted from the escalation of terrorist activities since 1969. Our recommendations are intended to deal with this situation and to continue in effect only so long as it persists. Whether all of them should be so limited in duration is not for us to recommend.

7. In the following Chapters we have set out at greater length the conclusions which we have reached and the reasons for them. Those conclusions may be summarised as follows:

(a) The main obstacle to dealing effectively with terrorist crime in the regular courts of justice is intimidation by terrorist organisations of those persons who would be able to give evidence for the prosecution if they dared (paragraphs 12-20).

(b) This problem of intimidation cannot be overcome by any changes in the conduct of the trial, the rules of evidence or the onus of proof, which we would regard as appropriate to trial by judicial process in a court of law (paragraphs 21-26).

(c) Fear of intimidation is widespread and well founded. Until it can be removed and the personal safety of witnesses and their families guaranteed, the use by the Executive of some extra-judicial process for the detention of terrorists cannot be dispensed with (paragraph 27).

(d) Detention of terrorists is now subject to an extra-judicial process which provides important safeguards against unjust decisions; but however effective these may be in fact, they can never appear to be as complete as the safeguards which are provided by a public trial in a court of law (paragraphs 28-33).

(e) It is therefore necessary to consider whether any changes can be made in criminal procedure which, while not conflicting with the requirements of a judicial process, would enable at least some cases at present dealt with by detention to be heard in courts of law (paragraph 34).

(f) Recommended changes in the administration of justice, unless otherwise stated, apply only to cases involving terrorist crimes, defined as scheduled offences (paragraphs 6, 7, 114-119 and the Schedule).

(g) Trials of scheduled offences should be by a Judge of the High Court, or a County Court Judge, sitting alone with no jury, with the usual rights of appeal (paragraphs 35-41).

(h) The armed services should be given power to arrest people suspected of having been involved in, or having information about, offences and detain them for up to four hours in order to establish their identity (paragraphs 42-50).

(i) Bail in cases involving a scheduled offence should not be granted except by the High Court and then only if stringent requirements are met (paragraphs 51-57).

(j) The onus of proof as to the possession of firearms and explosives should be altered so as to require a person found in certain circumstances to prove on the balance of probabilities that he did not know and had no reason to suspect that arms or explosives were where they were found (paragraphs 61-72).

(k) A confession made by the accused should be admissible as evidence in cases involving the scheduled offences unless it was obtained by torture or inhuman or degrading treatment; if admissible it would then be for the court to determine its reliability on the basis of evidence given from either side as to the circumstances in which the confession had been obtained (paragraphs 73-92).

(l) A signed written statement made to anyone charged. with investigating a scheduled offence should be admissible if the person who made it cannot be produced in court for specific reasons, and the statement contains material which would have been admissible if that person had been present in court to give oral evidence (paragraphs 93-100).

(m) A secure institution should be provided as a matter of urgency in order to accommodate, when the juvenile court so directs, people aged under 17 years who are remanded in, or committed to custody having been charged with or convicted of offences connected with terrorist activities (paragraphs 101-109).

(n) The grounds upon which a young person may be remanded or sentenced to prison should be extended so as to include cases in which the gravity of the offence makes confinement in any other place unsuitable (paragraph 110).

(o) The mandatory minimum sentence of six months in a remand home for riotous behaviour by juveniles should be removed, giving the court a discretion to pass such a sentence for less than six months (paragraph 111).

(P) The power of a juvenile court to sentence to a remand home for up to one month should be extended to enable such a sentence to be passed for any period up to six months (paragraph 112).

(q) The limitation on a court's power to sentence a juvenile to detention for such a period as it thinks fit only when the offence is one for which an adult might be sentenced to imprisonment for 14 years or more should be removed during the emergency (paragraph 113).