518 / 736
circumstances was justified in acting as she did, was
rejected in toto by the Court of Appeal on the following
main grounds :—
. 1.
The argument that the honesty and reasonableness
of
the aooellant's apprehensions robbed her of any
guilty intent must fail once the nature of the common
purpose of
the
rioting on
that occasion
is
shown.
Although this point does not previously seem to have
been determined bv the House of Lords, leave to appeal
was summarily refused.
2-
In order to sustain thr doctrine of self-defence,
it is suggested that there must be some special relation
ship between the partv relying on jusification of what
he did to help another—and that other person. It was
held that Miss Devlin, even as a public representative
had no special reason to be in the Bogside. Leave to
p cal on this ground was also refused.
3.
In view of the fact that, during a riot, it is the
duty of a private citizen to help the police in suppressing
the riot, there was no legal justification for Miss Devlin
in encouraging
the
rioters, and no
leave
to anneal
could be given on this ground. This distinctly odd finding
to put it mildly, states the law in normal circumstances
where the police are endeavouring to quell a riot, but
there is ample evidence to show that in August 1969
and previously the police w~re ooenly encouraging riot
and provoking disorders by
attacking persons
and
property in
the Bogside. This essential factor in
the
situation would seem to have been deliberately ignored
by the Court, with an
inevitably resultant erroneous
finding. The Courts
should
have
been
sufficiently
independent not
to
try
to placate
the former Royal
Ulster Constabulary at all costs, particularly as the re
forms introduced by Sir Arthur Young had not yet taken
effect and the police force was undoubtedly sectarian.
4.
It was apparently not lawful for Miss Devlin to
oppose the police the wav she did. No cognizance was
taken of Paragraph 179 of the Cameron Report, which
states in relation to an earlier riot in Derrv, that "The
conduct of the police in Derry was an immediate and
contributing factor of the disorders which subsequently
occurred."
5. Although the Court declined to take anv evidence
on this matter, it was nevertheless held that Miss Devlin
could not relv on the doctrine of self-defence, on the
narrow ground that it was impossib'e to hold that the
danger
she
anticipated was
sufficiently
specific
or
imminent to justify the actions she took as measures
of self-defence. It is
then sanctimoniously alleged that
the sectarian police were in the throes of containing a
riot, and that Miss Devlin's admittedly candid inter
ventions against them at that stage were too aggressive
and premature to rank as
justifiable. Paragraph 177 of
the Cameron Report epen
though
referring
to
pn
earlier occasion hardly
suggests
that
the police
in
Derry were endeavouring to contain a riot, when it states
that "a number of policemen were quilty of misconduct
which
involved
assault
and battery,
and malicious
damage to property in the Bogside giving reasonable
cause for apprehension for nersonal injury and the use
of provocative sectarian slogans." This is reinforced bv
the
finding of sthe Court
that
(Protestant-)
civilian
hostile to those from the Bogside made their appearance
on the scene, followed the police, and acted provoca
tively in making offensive remarks and throwing stones
in quantity. The police were between the two factions,
and had to bear the brunt of the stone throwing from
the two sides.
6.
The plea of jutification can hardly be availed of
by someone who incites others to riotious behaviour, as
Miss Devlin's incitements were directed to encouraging
others to do what was prima facie unlawful. This may
well be, but no evidence was adduced that it was un
lawful in the circumstances then existing. Furthermore
it was held that the plea of self-defence could not be
availed of, where what was sought to be -ustified was
what was termed "an unjustifiable crime." It is highly
doubtful whether the crime was so unjustifiable in the
circumstances
then prevailing when
apparently
the
police did not care how much injury was caused to
persons and property, and unquestionably used much
more force than was justified. A satisfactory agreement
could easily have reached beforehand
•••:fU>
the
local
Citizen's Defence Committee, if tact and forebearance
had been shown.
7.
The plea of self-defence based on n
collective
right of
self-defence arising out of
some
collective
necessity is rejected on the (round that the apoellant
sought
to
eject what
is
euphemistically
termed "a
lawfully constituted constabularly acting in the proper
execution of its functions." As such a nlea had never
been
tested by higher authority,
it was a denial of
justice not to grant as of right leave to appeal on this
primary and fundamental ground.
8. Despite
the preponderance of evidence
to
the
effe"t that on previous occasions the police had, as stated
by the Cameron Report, not endeavoured to quell riots
' t'ie Bogside. but had deliberately encouraged it, the
finding that the magistrate was
justified in
rulincr as
inadmissable and excluding evidence which the appellant
sought to tender as to the behaviour of the police on
previous occasions appears to be perverse. There was a
fundamental essential reason to grant leave to apneal to
test this. The circumstances were obviouslv such that
the Court should have substituted a fine for the sentence
of iniDrisonment. The ruthless and uncharitable finding
that anyone—regardless of circumstances who encourages
others
to use petrol bombs for any rioting purpose
deserves imprisonment would not be approved of bv
the European Court of Human Rights, who would have
examined the rieht of self-defence in the circumstances
much more profoundly. Very
few cases were cited
throughout the 20 page judgment and many grounds
were rejected without referring to precedent.
It was not surprising that such a
tactless verdict,
openly
encouraging
the
former, R.U.C.
in
all
circumstances
to
regard
their actions as
lawful,
the
rejection of lawful grounds of apDeal, and the tactless
manner
in which Miss Devlin was
subsequently
arrested near Derry were main contributorv factors to
the grave riots which in fact occurred in the Boprside
following this arrest. Much of this situation could have
been
averted
if
a
suspensory
sentence
had
been
substituted for imprisonment and if an Appeal to the
House of Lords had been allowed on these fundamental
and vital grounds.
64