The Gazette 1975

Northern Ireland Cases

Three men accused of murdering poHcemen acquitted by direction because, inadmissible statements were obtained by degrading treatment. On the evening of 10th May, 1974, Constables Ross and Bell, R.U.C., stationed at Dunmurry, were on duty in uniform at Finaghy crossroads. A Morris Marina car was stolen in Anderstown and proceeded towards Finaghy. At the crossroads, a number of men got out of the car, attacked the constables with pistols, and shot them at point blank range. The two con- stables were dead upon reaching hospital. An inquiry team of R.U.C. constables stationed at Dunmurry brought a number of suspects, including the present six accused, to Dunmurry Police Station between 16th and 18th May. The trial has occupied 34 days so far. The vital issue is whether written statements signed by the accused, and the accounts of the police wit- nesses of question and answer interviews with them should be admitted as part of the case for the prosecu- tion, or rejected on the ground that the accused had been subjected to force, threats of force and other oppressive treatment with the object of inducing them to confess their guilt. Section 6 of the Northern Ireland (Emergency Powers) Act, 1973 provides as follows:— "(1) In any criminal proceedings for a scheduled offence a statement made by the accused may be given in evidence by the prosecution in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of subsection (2) below. (2) If, in any such proceedings where the prosecu- tion proposes to give in evidence a statement made by the accused, prima facie evidence is adduced that the accused was subjected to torture or to inhuman or degrading treatment in order to induce him to make the statement, the Court shall, unless the prosecution satisfies them that the statement was not so obtained, exclude the statement or, if it has been received in evidence, shall either continue the trial dis- regarding the statement or direct that the trial shall be restarted before a differently constituted Court (before whom the statement in question shall be inadmissible)". The only evidence against the accused consists of their alleged statements, both oral and written. Prima facie evidence has been given that each of the accused was subjected to torture or inhuman treatment or degrading treatment. Evidence of the case of any one these forms of treatment casts the burden of proof upon the prosecution to satisfy the Court that the statement was not obtained by any of these means. This burden has to be discharged not on a balance of probalities but beyond all reasonable doubt. The reasons for this are:—

(1) The context of section 6 is that of a criminal trial and the prosecution's standard of proof of issues in such a trial (even when they must first be raised by the defence) is proof beyond reasonable doubt; (2) The use of the word "satisfied" in section 2(4) must imply proof beyond reasonable doubt; (3) At Common Law, with a view to the admission or rejection of statement evidence, the issue for the trial judge is one of voluntariness, the proof must be beyond reasonable doubt; (4) A State, particularly where it abridges the rights of an accused, must in case of ambiguity be construed so as to alter the law as little as possible consistently with the language used. It is therefore for the prosecution to prove that the accused were not subjected to any such treatment or that the statement taken was not obtained as a result of any such treatment. The two doctors for the defence testified that it was possible to inflict pain in such a way that there would not be visible traces of it. Degrading treatment would however appear to include treatment which does not include torture or inhuman treatment, and there is no doubt that this method of inflicting pain was degrading treatment. Any decision under S. 6(2) of the 1973 Act must be based solely on how the statement is proved to have been obtained, and not on whether it was true. A second point was concerned with the question and answer notes of the interviews to which various detectives testified. This was relevant to test the credibility to the same witnesses who were denying ill-treatment. The following facts emerged:— (1) There were a number of documents which were suspect by reason of their composition or appearance, for example exhibit 29, a question and answer note relating to Dougan; (2) Other documents were difficult to understand in context, such as the question and answer interview with Hetherington at 8.10 p.m. on 16th May after he had made comprehensive admissions in his written statements, which were exhibits 9 and 10; (3) It was hard in many instances, no matter how many allowances one made, to relate the num- ber and length of the questions and answers to the time devoted to the interview at which they were asked and given; (4) There were many examples of wholly innocuous question and answer sessions leading nowhere at a time when more useful material was avail- able to the interviewers; (5) There was almost universal ignorance on the part of those about to take up the running with with a suspect concerning what had gone before;

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