It is now 12 years since the civil rights movement took to the streets in Northern Ireland. One of the demands at the time was the repeal of the Special Powers Act of 1922 which conferred wide powers of arrest, questioning, search, detention, and internment on the police and army.
Although the act was repealed by the British government when it assumed direct rule in 1972, it was replaced by the Northern Ireland (Emergency Provisions) Act of 1973. It will be argued by some that draconian measures are still required to deal with the political violence. But there is ample evidence to suggest that the very existence of this legislation is actually exacerbating the problems. Abuses of the powers by the security forces are radically affecting people's confidence in the administration of justice and producing, in Roman Catholic areas, a strong feeling of continuing discrimination.
Another obvious area of concern is the Diplock courts, introduced in 1974 on the recommendation of a commission whose chairman was Lord Diplock. They provide a constant reminder of the widespread changes which were made in ordinary criminal process. The long-established democratic tradition of the right of trial by jury is not available for the long list of "scheduled" offenses. Special rules of evidence apply. Over 85 percent of all convictions are based wholly or mainly on a statement or confession. In addition, there is now evidence to suggest that the judges, who replaced juries, are becoming case hardened. As a result, the acquittal rate has declined sharply. A move away from these special courts is urgently required if there is to be any confidence in the administration of justice in Northern Ireland.
The policy now must be to return to ordinary criminal procedures as quickly as possible. To this end, the following amendments should be made to the Emergency Provisions Act when it comes up for renewal:
* The powers of members of the security forces to stop and question any person under section 18 and to arrest and detain for up to four hours any person suspected of terrorist offenses under section 14 should be redrafted to make it clear that "random" screening operations are unlawful.
* The power of members of the security forces to enter any premises to search for arms or explosives should be redrafted to exclude searches of occupied houses at night unless a warrant has been obtained on the ground that there is reasonable suspicion that arms or explosives are being held there.
* Section 8, which authorizes the admission of statements obtained during interrogation provided that torture or inhuman or degrading treatment has not been used, should be repealed and replaced by a provision authorizing statements obtained during interrogation to be admitted in evidence only if it is shown that a statutory code of practice for interrogation has been complied with.
* A statutory code of practice governing the interrogation of persons held for questioning under section 12 of the Northern Ireland (Emergency Provisions) Act or section 12 of the Prevention of Terrorism Act should be enacted, and should contain a restriction on interrogation for more than one hour at a time and four hours per day.
* The Police Complaints Board established under the Police (Northern Ireland) Order 1977 should be required to consider disciplinary proceedings against police officers engaged in the interrogation of suspects in any case in which a statement is held to have been obtained in breach of the code of practice for interrogation.