Transitional Justice: Institutional Reform in Northern Ireland: Ending the Diplock Courts

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Institutional Reform in Northern Ireland: Ending the Diplock Courts

What are the challenges and effects of reforming an institution such as the judiciary in the aftermath of a decades-long period of mass violence?
One key aspect of transitional justice is institutional reform. When institutions such as the government, military, judiciary, police force, etc. have taken actions to limit the civil liberties of the citizens for the sake of safety and security, reforming those institutions by returning to more democratic ways is both crucial and daunting work. The following reading explores the need and challenges of reforming the judicial system in Northern Ireland.

Democracies have many features, including a free press, a transparent political process, an active civil society where dissent and disagreement with the government are possible, and a political system with checks and balances. In most democracies, a trial by jury is a hallmark of the judicial system. A jury is supposed to represent the larger society, so that people accused of crimes can be judged by their peers. Therefore, a jury trial is part of the wider system of checks and balances that protect citizens and democracy.

In 1973, Lord Diplock introduced the idea of trials without juries for those accused of terrorism in Northern Ireland. Part of the Emergency Provisions Act, the so-called “Diplock Courts” were proposed in response to the possibility that jurors could be intimidated by paramilitary groups and the belief that jurors were vulnerable to returning verdicts that were favorable to their particular community.

Throughout history, governments have turned to “emergency powers” when they have felt threatened by internal or external forces, or when the government was perceived to be particularly unstable or fragile. In South Africa, for decades the government declared states of emergency, using this power to not only suspend the limited freedom that existed but to fight an all-but-declared civil war. In Germany in 1933, Hitler declared a state of emergency in the form of the Enabling Act. Following the Reichstag fire, Hitler convinced the government to temporarily turn the power of the state over to him. With this single act, he was freed of all legislative and constitutional restraints.

“Security normalization” was announced in Northern Ireland in August, 2005. With that announcement came plans to end the Diplock Courts by July 2007. Human rights organizations such as the Committee on the Administration of Justice (CAJ) have maintained that the arguments for the Diplock Courts were insufficient to begin with and that they should stop immediately.¹ Other organizations have also spoken out arguing that trial by jury has occurred alongside the Diplock Courts without jury intimidation and that evidence should demonstrate that the Courts should be abolished.

Northern Irish government officials in August 2006, however, expressed a different view. They argue:

For more than thirty years the Diplock Court system has helped to counter the risk of perverse verdicts in trials for offences connected with the Troubles in Northern Ireland. It has protected jurors from the risk of intimidation; ensured that those charged with such offences receive fair trials; and ensured that justice is seen to be carried out fairly and effectively. The system has become emblematic of the special arrangements that have been necessary to deal with the threat of terrorism in Northern Ireland.

Under the programme of security normalisation announced on 1 August 2005, the legislation underpinning the Diplock system is due to be repealed on 31 July 2007. The repeal of the Diplock system will be a significant step on the road to a normalised Northern Ireland and the fact that we are able to move to that point is a testament to the profound changes in the Northern Ireland security situation that have occurred, not least those in the last year.

Although Northern Ireland is on the road to normalisation, we do not think the time is right for Northern Ireland to operate without the fall-back of some special arrangements for exceptional cases. Paramilitaries and former members of paramilitaries still have a significant hold over the communities they live in and many are heavily involved in criminality. This means that jurors could still be put at risk of intimidation in some cases.

Government must protect the safety of all those who participate in the justice system. The role of juror is an extremely important one and we must do all we can to protect them from intimidation and ensure that the justice system can deliver fair and effective trials.²

Despite the arguments here the Diplock Courts have been deemed controversial enough that those people convicted by the courts have the right to have their cases heard before an Appeal Court which involves three judges sitting together. Over the years, Republicans and Nationalists have joined legal and human rights groups in their efforts to end the Diplock Courts, arguing that they are not only unjust and undemocratic but also discriminatory and used for political ends.

Connections for the Classroom...

Why is the right of a trial by jury such a fundamental foundation of a democratic society?
Define the term impartial jury. Northern Irish society has traditionally been segregated along religious and political lines. How might this challenge the ability to create impartial juries? What are some solutions to these challenges?
Throughout history, governments have turned to “emergency powers” when they have felt threatened by internal or external forces, or when the government was perceived to be particularly unstable or fragile. At such times, what is the right balance between national security and civil liberties? Which key players should be part of this determination? And how can citizens be sure that such decisions are being carried out justly and in their best interests?

¹ Committee on the Administration of Justice, Source..
² Northern Ireland Office, Source.