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Published online by Cambridge University Press: 02 January 2018
The use of emergency legislation and the accompanying modification of the ordinary criminal justice process in Northern Ireland have formed the subject of prolonged debate in academic and political circles. The authorities have, in turn, responded persistently by reference to the special justificatory circumstances which have grown to prevail since the onset of the present ‘troubles’. The focus of attention of this article, however, will not be that controversial legislation but another aspect of the emergency which is said to remain subject to the ordinary law of the land. This is the use of force by the security forces and in particular those instances where death or serious injury results therefrom. The primary contention of this paper is that the ordinary criminal law has been proven inadequate in this context. Hence, it is submitted, the quest for an alternative and more stringent mechanism of legal control is one which should be undertaken with some urgency.
1. The term ‘security forces’ covers the police (the Royal Ulster Constabulary) and the army (both the British Army and the Ulster Defence Regiment).
2. This article will not seek to delineate the circumstances in which force ought or ought not to be deemed ‘legitimate’. Rather, its concern will be to arrive at the most satisfactory means of defining these circumstances.
3. The wording of sub-s (I) is identical to s 3(1) of the English Criminal Law Act 1967, whilst sub-s (2) is similar but more concise than its English equivalent.
4. Smith and Hogan, Criminal Law (5th edn, 1983) p 326.
5. Glanville Williams, Textbook of Criminal Law (2nd edn, 1983) p 505.
6. Greenwood, ‘The Evil Choice’ [1975] CLR 4 at 6–7.
7. Stannard, ‘Lethal Force in Self-Defence’ [1980] NILQ 173 at 176.
8. For example, R v Julien [1969] 2 All ER 269.
9. R v Bohan [1979] 5 NIJB; R v Robinson [1984] 4 NIJB.
10. Cmnd 2659.
11. Spjut, ‘The “Official” Use of Deadly Force by the Security Forces Against Suspected Terrorists: Some Lessons from Northern Ireland’ [1986] Public Law 38 at 42.
12. Cmnd 2659, para 23.
13. Glanville Williams, op cit, p 500 and see Smith and Hogan, op cit, p 325.
14. Stannard, Northern Ireland Supplement to Smith and Hogan, Criminal Law (1984) 54–58; Standing Advisory Commission on Human rights, Ninth Annual Report (1982–83) Appendix B.
15. See eg Leigh, Police Powers in England and Wales (2nd edn, 1985) p 59.
16. A-G for Northern Ireland's Reference [1977] AC 105; Farrell v Secretary of State for Defence [1980] 1 All ER 166.
17. [1977] AC 105.
18. R v Jones [1975] 2 NIJB.
19. [1976] NI 169.
20. Ibid, at 193.
21. [1977] AC 105 at 137.
22. Ibid, at 149.
23. Ibid, at 138.
24. [1975] NI 203 at 207.
25. [1975] 2 NIJB at 18.
26. See, for example, Jennings, ‘Northern Ireland: The Legal Control of the Use of Lethal Force’ (1985) NLJ 921.
27. [1975] NI 203 at 208.
28. Greer, Hadden and O'Hagan, ‘Civil Liberties in Northern Ireland: From Special Powers to Supergrasses’, Fortnight, 18 February 1985, p 4.
29. Emphasis supplied.
30. Stewart v United Kingdom, App No 10044/82 [1985] 7 EHRR 453 at 457.
31. Farrell v United Kingdom, App No 9013/80 [1983] 5 EHRR 466.
34. Greer, D. S., ‘Legal Control of Military Operations - A Missed Opportunity’ [1980] NILQ 151; Walker, ‘Shooting to Kill — Some of the Issues in Farrell v Secretary of State for Defence’ [1980] MLR 591.
33. [1980] NI 55.
34. [1980] 1 All ER 166 at 172 per Viscount Dilhorne.
35. Jennings, op cit, 293, Asmal, Shoot to Kill? International Lawyers' Inquiry into the Lethal Use of Firearms by the Security Forces in Northern Ireland (1985), para 118.
36. [1983] 5 EHRR 466 at 468.
37. Tenth Report, para 70, fn 3.
38. Asmal, op cit, para 134.
39. Evelegh, Peace-Keeping in a Democratic Society -The Lessons of Northern Ireland (1978) p 78.
40. It should be added that the arguments in favour of some form of differential legal treatment of those lawfully in possession of firearms need not be confined solely to the Northern Ireland situation. The use of potentially lethal force by the police in England and Wales has given rise to serious debate in many circles in recent years and one could seek to launch a parallel argument for the tighter regulation of their employment of firearms. Thus, whilst the present article focuses on Northern Ireland, it should be said to present a case for careful revision of ‘ordinary’ law rather than for the imposition of an ‘emergency’ law aimed at Northern Ireland alone.
41. ‘The Doctrine of Excessive Defence: Developments past, Present and Potential’. [1985] NILQ 314.
42. McKay [1957] VR 550.
43. Dwyer [1972] IR 416.
44. Palmer v R [1971] AC 814, PC; R v McInnes [1971] 3 All ER 295, CA.
45. The best example of this tendency is R v Shannon (1980) 71 Cr App Rep 192.
46. [1976] NI 169 at 196.
47. [1977] AC 105 at 139, 148 and 152 respectively.
48. ‘When is it Murder to Shoot to Kill?’ Fortnight, 29 April 1985, p 7.
49. Ibid, p 8.
50. Walker, op cit, n 32 at 594.
51. Ninth Annual Report, para 24.
52. Ibid, para 27.
53. Walker, op cit, at 594.
54. Asmal, op cit, n 35, para 99.
55. Ibid.
56. Ninth Annual Report, para 24.
57. Spjut, op cit, p 55, n 9.
58. The procedure is laid down in s 67 of the 1984 Act.
59. R v Jones [1975] 2 NIJB 22.
60. Bevan and Lidstone, A Guide to the Police and Criminal Evidence Act 1984 (1985) p 22 and see, generally, pp 21–23.
61. Zander, The Police and Criminal Evidence Act 1984 (1985), p 95.
62. Review of the Operation of the Northern Ireland (Emergency Provisions) Act 1978, Cmnd 9222 (1984). The Inquiry did not in the event review the issue of use of force.
63. ‘Abuse and Failure in Security Policies’ (Summary of submission of Boyle, Hadden and Walsh to Baker Review), Fortnight, September 1983, p 4 (emphasis supplied).
64. See the Report of the Royal Commission on Criminal Procedure, Cmnd 8092 (1981), para 1.11 et seq.
65. Examples are R v MacNaughton [1975] NI 203 at 208 per Lowry CJ and R v Robinson [1984] 4 NIJB 19 per MacDermott J.
* I would like to thank Dr. David Thomas and Professor Desmond Greer for their helpful advice and comments. The views expressed are, of course, my own.
