I am very glad to be here. I have come at very short notice. I am grateful to you for you taking the paper that I circulated in its rather incomplete and unfinished form but I will address the issues in it as we go on. I am a professor of law in the law department in Durham where I have taught since 1970. I am an international lawyer. You will see that that has some bearing on the approach I take to some of the questions that you have been faced with. I am interested in the European Convention on Human Rights, and I am interested in terrorism. I have written about these matters for more than 30 years. I have been a consultant with the Council of Europe on matters of co-operation in criminal matters, and I know something about co-operation with the kind of body that you might be considering recommending.
As I have said, I have dealt with this at short notice. I am not familiar in any great detail with the vast range of material that has been presented to you. I am an academic lawyer; I am not a practitioner and I am not a politician. If I stray into political judgments, you will know to prefer your own to anything that I have got to say.
I want to talk about the notion of co-operation between states, and about the impact that the European convention might have on any proposed arrangements that you are considering. I want to emphasise that I come to these questions as an international lawyer. I will tell you, first, what you know. Not because you do not know it but so that you understand why it has an effect on the approach I take.
International law deals with the relationships between sovereign states. Obligations to states arise mainly from their own consent. It is not enough to say to a state that it would be a good thing if it accepted an obligation or behaved in a particular way. It is always necessary to demonstrate the provenance of the obligation, and that is particularly true in the field of co-operation in the criminal area where states are very concerned about what they see as one of the central parts of their sovereignty. It is true that international law allows states to legislate for conduct abroad to make, for instance, the conduct of its nationals an offence if it occurs in a foreign jurisdiction. However, it does not, without some agreement with the other states, allow any steps to be taken to the enforcement of those obligations. A state cannot arrest, investigate, and collect evidence; it can only do so through the authorities of the foreign state and with their co-operation, and it can do it only to the extent that that co-operation is agreed. If that does not reach far enough, then the state asking for co-operation is not entitled to take its own measures, for instance, to go into a jurisdiction and capture somebody if it thought that the extradition arrangements were not working properly.
This is such a significant limitation that we must start looking at the way in which states would co-operate. The same is true with respect to civil matters. I am taking as a model, although I understand that there may be other alternatives, the possibility of a tribunal being established under the 1921 Act which, at its best, will mean that a United Kingdom court would regard the proceedings in Ireland as civil or commercial matters and therefore fall within the powers of co-operation to which I shall refer in a moment.
I am also assuming, and it may be from what you have heard recently - certainly from other evidence that you have received in the course of your hearing - that what you will be faced with is less than full co-operation from the British authorities. That is to say, that there will have to be some element of coercive process - coercive, perhaps through court judgments rather than by sending troops; that is not the sort of coercion that I mean - in the light of co-operation that the tribunal would regard as insufficient for its purposes. Of course, it would be by no means inconceivable, as you have heard, that if the tribunal were established and if approaches were made through diplomatic channels the British Government would be prepared to co-operate, but it might not be, and that is the issue at which I want to look.
The co-operation law affects civil and criminal co-operation. In criminal co-operation it is extradition, and also evidence gathering; mutual assistance, criminal lawyers call it. Those are important, but again it is largely a treaty-based system. It allows for mutual assistance, for examination of witnesses, and the carrying out of inquiries by the local police force on behalf of proceedings in the foreign jurisdiction.
I perhaps ought to say that there might be two stages to any inquiry that is established. The first inquiry will be to find out what went on, purely as a matter of fact. It may be, though it would be wrong to prejudge it, that that inquiry will reveal evidence of criminal wrong-doing by identified suspects. At that stage there will have to be a second and different stage of co-operation. That would involve the possibility of the taking evidence in the other jurisdiction. If the trials were to take place here it would ultimately involve the question of extradition of defendants to face proceedings in Ireland. If it was the other way round, of course, it may mean the transmission of evidence for a trial in England, depending on where the decision was taken, and the prosecution could go ahead.
The second stage does not automatically follow from the first. It depends what the first stage of the inquiry reveals. It is important, as you will see if we look to see what co-operation might be obtained from the United Kingdom, that you keep it in mind that the more your proposed inquiry strays towards something like a criminal investigation, the more reluctant will be the British court to take action under what it regards as a civil investigation in order to facilitate what might be turning into a preliminary investigation into a criminal investigation. I shall come back to that point as we go on.
The initial procedure, as I understand it, or at least the model that I am using, contemplates the establishment of a tribunal in Ireland under the 1921 Act which would have powers to investigate the events in 1974 and afterwards. There is precedent to say that the English High Court would regard requests from such a tribunal, under what are called letters rogatory or letters of request, for the taking of evidence and obtaining of documents as matters which it could answer. That is, the English High Court would regard this as a civil or commercial cause in which it would have a discretion to use its coercive powers to order people to give evidence or, as seems to be the main issue here, supply documents.
Those orders would of course be addressed to British officials in the circumstances that we are contemplating. There are several differences, though, between the case which is used to demonstrate this authority - the case that arose out of the McCracken inquiry - and the facts that will be faced here. The nature of the evidence here is to do with the operations of security forces, as distinct from bankers' records, and is clearly more sensitive.
As significant as anything, and a matter which was perhaps rather passed over in some of the evidence I have read that has been given to the sub-committee, is that the English High Court is particularly cautious about allowing what it regards as fishing expeditions for documentary evidence. It is necessary to specify with some degree of particularity the class of documents - if they are not specifically identified - and the likelihood that they would hold evidence which was germane to the inquiry taking place in the other jurisdiction. It would not be possible to ask for the records of the Ministry of Defence with respect to Northern Ireland for 1974 and just rifle through them to see if there is anything there.
If one combines the need for precision about the request with the care to be taken that it is not seen as a preliminary to a criminal inquiry but a request for information, it means that both the terms of the inquiry and the terms of any letters of request that it exercises will have to be considered with great particularlity. This is a point of fundamental importance about the nature of the tribunal which is established and any requests that it makes.
The law to which I have referred, the law of civil and criminal co-operation, is part of a much broader international law of co-operation generally. It is law which is largely based on treaty. It is routine for states in most cases, but it carries with it a very significant limitation. Where there are disputes between states as to what a treaty requires, there is very seldom a dispute-settlement machinery attached to it, so one has a political dispute between the states. The sub-committee is aware, as I am, about the disputes between the United Kingdom and Ireland about extradition in the 1970s and 1980s. They are disputes, and sometimes they do not go away and continue to cause friction between states.
Even if there were a dispute and the British courts took the position of refusing co-operation, even if the British Government refused or maybe stood on its rights not to present certain evidence to the British High Court, and even if Ireland thought that this was beyond its powers, there would be no remedy for resolving this dispute. In any event, in this particular situation, Ireland is not a party to the treaty which the United Kingdom uses for its international civil co-operation, but the law is written in such a way that the High Court can co-operate with any state, so there would be no breach of any obligation to Ireland in international law if the United Kingdom refused to comply with a request made.
I want now to turn to the European Convention on Human Rights because it has been suggested to the sub-committee that the convention may play some part in reducing, if not eliminating, the deficiencies in the civil co-operation regime on which the tribunal might want to rely. At the first level, the convention is just another co-operation treaty. It depends on states complying with their obligations. There is no coercive power other than the binding power of the court's decisions that stand behind the European Court in Strasbourg, but there is that power. That is to say that, unusually in international arrangements, there is an international court with a plenary jurisdiction over disputes within the European Convention and of course, as the sub-committee will know, one to which individuals have a right of application which makes it doubly different from the run of the mill arrangements of international law.
The presence of the court has been very significant in terms of developing the jurisprudence, essentially expanding the obligations of states within the terms of the convention. The sub-committee will know enough about the convention to see it is a very spare document, but the jurisprudence over some 50 years has been one of practically constant expansion of the obligations of the states.
I do not want to go into the details of the Article 2 obligations - at least, not for the moment - except to say that it is on Article 2 that perhaps the most innovative and far-reaching of the court's jurisprudence has occurred. The reason the court gives for this almost judicial legislation is that it is necessary that the convention rights be effective. The states intended, when they became parties to the convention, that there would be an effective, and not merely formal or theoretical, regime for the protection of human rights.
It means that the organs of state, if the state is to discharge its basic obligation of co-operation with the convention system, have to keep the jurisprudence of the court under review. It is necessary in order that they can keep up to date as the court's jurisprudence develops. The Amin case, about which the sub-committee has heard quite a bit, is an example of that. The House of Lords, with its judicial competence, applied jurisprudence from cases the majority of which had nothing to do with the United Kingdom in order to determine what were the obligations to establish an inquiry in English law.
At present, there are processes about the reform of the inquest system in Northern Ireland and in England and Wales, and the CPS is looking into its duties with respect to deaths in custody. All the time these obligations under Article 2 are part of the debate. They are accepted by the United Kingdom as having a bearing on the way that public policy should develop.
However, these positive obligations about which the sub-committee is aware, are difficult for states to respond to. They are not the basic negative obligations that one should not torture somebody or one should not interfere with their freedom of expression. They require resource arrangements. They require the training of officials, supervision and monitoring in order to see that they are complied with.
There is another aspect of the Article 2 and Article 3 jurisprudence that I want to draw to the sub-committee's attention because it points us in a direction of limitation of the effect of the convention about which the sub-committee, at least to the extent that I have been able to see, has not heard advice. Many of the cases in which these duties have been developed have arisen in the security problems for Turkey in south-east Turkey. There is a civil war, perhaps with international ramifications, where the security situation for the Turkish authorities has been very serious and in which, over a large number of years in dealing with it, those authorities have resorted to very harsh and extra-legal methods of dealing with what they see to be a secessionist guerrilla war. It is not a large jump from that kind of situation to the argument that these obligations apply to international conflicts between states. They are and would be uncomfortable obligations for states like the United Kingdom which engage in armed conflict on an international level. It is currently the case that the British Government accepts that the convention law applies to the occupation forces in Iraq, a matter that will shortly be tested in the English courts as to the extent of that obligation.
You can understand, whether you sympathise or not, why a state like the United Kingdom might want to argue that the convention is of limited territorial scope in those circumstances. If it is a broader notion looked at through the eyes of who it was who did the alleged wrong, rather than where the victim was when the wrong was done, it provides for worldwide responsibility for the organs of the state, which the British Government says it did not accept when it became a party to the convention.
This explains why the Bankovic case, which is apparently far removed from your concerns, must be taken on by any tribunal if it hopes the European convention will relieve obduracy on the part of the British authorities. Bankovic concerns the bombing of the television tower in Belgrade during the NATO campaign against Serbia with respect to the events in Kosovo. I dare say you remember that a cruise missile levelled the television tower and journalists in it were killed. Their families brought actions in the European Court in Strasbourg, alleging breaches of Articles 2, 10 and 13, saying that this was a violation of the victims' right to life in breach of the convention. There are and would have been enormous problems in demonstrating the responsibility of the individual NATO European convention states that were the defendants. If the case had reached the merits, there would have been even bigger problems in demonstrating the provisions of Article 2 had been violated.
The court, however, never got to the merits. Article 1 of the convention says that the state shall secure to everyone within its jurisdiction the rights in the convention. It is a victim based system. The question then is where were the victims, were they within the jurisdiction of the NATO European convention states? The defendant states argued that they were not, they were in a foreign state that was not party to the European convention, not even a member of the Council of Europe, they were beyond their jurisdiction. The court accepted this and said the convention had no application to the facts of this case. There could, therefore, be no question of responsibility because the victims were not within the jurisdiction.
It will not surprise you that this decision outraged human rights groups. It does not fit with the interpretation of other international human rights treaties. There are some cases in the European system at the moment which, if the applicants win, would suggest that Bankovic will be limited, if not completely overturned. You can see the relevance of this to events in Dublin and Monaghan if we take the worst case scenario - I make a hypothesis here - that there may be some evidence somewhere of official British Government involvement, directly or by collusion, in these bombings to explain why co-operation would not be forthcoming.
You have to be able to make a distinction between sending a bomb to Belgrade and sending a bomb to Dublin if you are to be able to argue that the convention applies. It is not an easy or palatable question but it arises this way because the convention is an international treaty. We can say to the United Kingdom, "Well, you ought to accept this obligation, it would, from a humanitarian point of view, be a good thing for you to do this. It would be politically fine to do it." It may take that view but if it does, it will not be because it accepts the legal obligation. Given that most of the discussion that you had strayed into substantive convention law, I simply want to say that there is an obstacle that has got to be gone through or round; it has to be overturned or distinguished away. I would be fairly sure that, if the British Government will not co-operate, it will rely on the Bankovic case to say why it is not bound under the convention to co-operate. That, of course, is an argument that could be put in the English courts if action was brought there to try to enforce its obligations.
I will refer briefly to the extension of obligations under Article 2. You know about this, and if you have any questions, I would be glad to answer them. Under Article 2, the court is procedurally obliged to hold an effective inquiry in circumstances where there is an unexplained death within the state's jurisdiction. It regards those violations as serious as the substantive violation - in other words, if it has turned out that there is evidence that the state has killed in breach of Article 2. It does not make a distinction, and one of the things that went wrong in the Court of Appeal in the Amin case was that the court thought that those obligations were rather less significant. The reason why is that, in some cases, that is all that is going to be able to be achieved.
The Turkish cases - I use them as an example; again you may think that they are distant from your concerns - have often involved killings in fire fights involving the security forces and guerrilla forces. It has not always been possible to decide who killed the person, because there was no inquiry, there was no investigation, no autopsy and no forensic inquiry to find what kind of bullets were used. In those circumstances, the European court is able to say that the failure to inquire is a failure under Article 2 and that to enlist the power of the criminal and supervisory law of the state in order to make the guarantees of Article 2 more effective requires that there should be an investigation. It is true that the investigation, if there is one in effective terms, may go on to reveal evidence of criminal wrongdoing. In those circumstances, another obligation arises: to investigate the crime properly. Ultimately, the prosecutor must give reasons why he proposes not to proceed - either because there is not enough evidence or some other reason why the proceedings should not go ahead.
Those are extensive obligations, and they are clearly relevant to the circumstances of your incident if you can get over the Bankovic problem. As far as the retrospectivity point is concerned, the answer is that the violations are continuing. If everything else was in place, the English courts would apply Article 2 to a request from an inquiry in Ireland on the basis that the wrong is a continuing wrong to the victims. The victims have not had the inquiry to which they allege they were entitled, and in those circumstances, the mere fact that the deaths themselves occurred before 1974 is not relevant. The inquiry would not be, at this stage, as I have said, into the deaths, but into the explanation for them.
I will say one other thing about the convention matter. You have heard some debate about the automaticity of the obligation to hold an inquiry in the event of an unexplained death. I think it has been put to you rather more strongly than I would subscribe to. In principle, that is the position. The running of time itself will not be sufficient for a state to say that its obligation had gone away, but it may be that what can be decided to be the violation if there has not been an inquiry is of a quite limited kind, important in Strasbourg terms, but perhaps limited in your terms or the terms that you see for this inquiry.
The Strasbourg court says that inquiries must be prompt and that they must be effective. Effectiveness is a complicated matter but amongst other things it means proper contemporaneous forensic examination of the site. Why does it say that? It says that, of course, because unless that is done, there cannot be an effective investigation. We have to accept that in some cases - I do not make any judgment about whether the 1974 bombings fall within this category or not - the running of time will be sufficient to say that a fully fledged, effective inquiry can do no more than say that there should have been an inquiry some time before. It cannot necessarily get to the substance of the issues that people might want to raise because circumstances no longer permit it.
I think that it is likely, though again I cannot say that it is certain, that the British Government would take a similar view about this; it would say that it wanted to say that there was, as it were, no longer an obligation to establish an inquiry of the kind that might be established, with respect to Article 2, with broad terms of reference. It would distance itself by saying that all that you could say is that if the police inquiry had been better in 1974, then it might have been possible to have a more fruitful inquiry now.
Perhaps I shall stop there. I will talk about the international matters, if you want to, further on. If there are questions about the convention law, and indeed about co-operation, because the two things are clearly not separate, then I shall be glad to answer them.
