Human Rights Developments
The United Kingdom receives relatively little attention from the international human rights community. Yet in recent years freedom of expression in Britain has been restricted; there is an appalling use of lethal force by all sides to the conflict in Northern Ireland, and the U.K emergency legislation there suspends certain basic due process guarantees; and conditions in many British prisons violate international standards.
A state of emergency has existed in Northern Ireland since its partition from the Irish Free State in 1922. Various emergency laws enacted during this seventy-year period have given security forces _ the police and the British army _ broad powers to suspend civil and political rights. Since repeal of the Special Powers Act in 1973, police powers to address political violence have been defined by the Northern Ireland (Emergency Provisions) Act (EPA), originally enacted in 1973, and the Prevention of Terrorism (Temporary Provisions) Act (PTA), in effect since 1974. The EPA applies only to Northern Ireland; the PTA applies to all of the United Kingdom. Both acts have been regularly renewed by the British Parliament.
Among the powers conferred by these emergency acts are:
o the power to stop and search people; anyone can be required to answer questions regarding his or her identity and recent movements.
o the power to arrest, detain and interrogate suspects for up to seven days without a criminal charge and without an appearance before a judge.
o the power to search residences without prior judicial authorization.
o the power to exclude people from Northern Ireland or all of the United Kingdom without a trial and without judicial review.
o the power to detain people by executive order, although this power of "internment" has not been used since 1976.
The legislation also declares certain paramilitary organizations illegal and makes membership in them a criminal offense; suspends trial by jury for a large number of "scheduled offenses," including murder, armed robbery, possession of explosives, and certain lesser offenses; and sets a lower standard for the admissibility of confessions than is applicable in the rest of Britain.
The U.K. has enacted other legislation and issued administrative orders that affect people charged with or suspected of involvement in politically motivated violence, such as the 1988 Criminal Evidence (Northern Ireland) Order, which curtails the right of suspects not to have inferences drawn against them from their silence.
Over half (54.4 percent) of the 2,900 deaths since "The Troubles" began in 1969 have been of civilians with no known connection to political violence. Another 31.1 percent have been police or soldiers. Members of paramilitary groups (known as paramilitaries) make up the rest; 10.6 percent of the deaths were of Republican paramilitaries (Nationalists who favor a unified Ireland) and 2.6 percent were Loyalists (Unionists who favor maintaining union with the United Kingdom).
The level of violence by paramilitary groups is appalling: paramilitaries were responsible for 2,313 murders between 1969 and 1989 _ 1,608 people were killed by Republicans and 705 by Loyalists. Most of those killed _ 1,206 _ were civilians with no known connection to political violence (574 of these were killed by Republicans and 632 by Loyalists). During the same period, Republican paramilitaries killed 847 members of security forces, and Loyalist paramilitaries killed ten.
Paramilitary groups use such barbaric tactics as the Irish Republican Army's "human bombs" _ people strapped into vehicles loaded with explosives and sent to bomb security checkpoints _ as well as bombs aimed at civilian targets. Loyalists carry out "tit-for-tat" killings by going into Catholic areas and killing Catholics at random in revenge for Republican killings of Loyalists.
Killings of civilians by paramilitary groups violate the fundamental prohibition in international humanitarian law against targeting civilians. In addition, paramilitary groups kill security-force members and opposing paramilitaries by approaching them disguised as civilians, in violation of the principles of customary international humanitarian law that prohibits perfidy because it breaks down the distinction between combatants and civilians. As for killings carried out by security forces, police and soldiers killed 329 people between 1969 and 1989; of these, 178 were civilians, 123 were Republican paramilitaries, thirteen were Loyalist paramilitaries, and fifteen were themselves security-force members.
The use of plastic bullets _ supposedly nonlethal weapons _ for crowd control has also resulted in fatal shootings. Fourteen people have been killed by plastic bullets fired by security forces since 1973.
Members of security forces who have killed civilians or paramilitaries are rarely prosecuted. Since 1969, police or soldiers have been prosecuted in only nineteen cases in which killings took place while they were on duty. In only three of these cases have defendants been found guilty of murder or manslaughter. The only member of the regular British army to have been found guilty of a murder committed while on duty received a life sentence, but he was released from prison after serving only two years and three months of his sentence, and was allowed to rejoin his regiment.
One problem in prosecuting members of security forces is that under British law if a police officer or soldier intentionally kills someone, he or she may be charged only with the offense of murder. No lesser charge, such as manslaughter, can be filed.
Because police and soldiers are so rarely prosecuted for fatal shootings, often the only way that a family can discover what happened to a person who was shot and killed is during a coroner's inquest. But coroners' inquests are subject to inordinate delays; coroners' juries are not permitted to reach full verdicts;30 security-force members implicated in deaths are not required to testify; and victims' families and their attorneys are denied access to evidence before an inquest begins. There are significant problems in detention. The U.K.'s Prevention of Terrorism Act permits detentions for up to seven days. The European Convention on Human Rights requires that detainees be brought "promptly" before a judge. In 1988, the European Court of Human Rights ruled that a detention of four days and six hours did not meet the "promptness" requirement. The U.K. then formally derogated from that provision of the European Convention.
There have been many charges of physical abuse of suspects in detention from both detainees and attorneys. Some of these allegations have been upheld in court. A detainee's access to his or her attorney is frequently delayed. The power to intern without trial remains part of the emergency laws of Northern Ireland, although it has not been used for fifteen years.
Security forces frequently stop, search and question people on the street, often in an inhuman and degrading manner. In addition, members of the police and army have conducted thousands of destructive house searches, some of which appear to violate Northern Ireland laws. A high percentage of these do not produce weapons or equipment used for bombings.
The right to a fair trial has been significantly compromised. The right to trial by jury has been withdrawn from defendants in cases that allegedly involve political violence ("scheduled offenses"). The list of scheduled offenses is overly inclusive. Standards used in Diplock Courts (special courts set up under the Northern Ireland emergency provisions) permit the admission into evidence of unreliable confessions, some of which may have been secured by abusive treatment in detention.
The Prevention of Terrorism Act provides for orders excluding from Northern Ireland or Great Britain people suspected of involvement with terrorism. People have been excluded without a hearing and without notice of the charges against them; they are simply informed that they are suspected of involvement with terrorism.
Freedom of Expression
In recent years, there has been an erosion of free expression in Britain in a number of areas. The Official Secrets Act provides criminal penalties for revealing a broad range of foreign policy, defense and military information, regardless of whether the material has been previously disclosed elsewhere or its release is in the public interest. In 1989, facing widespread criticism over the Spycatcher case _ in which the government enjoined the publication of the memoirs of a former intelligence agent _ and the prosecutions of two civil servants, Sarah Tisdall and Clive Ponting, for leaking information to the press, the government introduced a reform of the Official Secrets Act. Although the scope of the law was narrowed, there remains an absolute ban on disclosures about the security and intelligence services, no matter how trivial. There is also a ban on disclosure of material pertaining to Britain's defense and international relations if the government asserts that disclosure will "endanger the interests of the United Kingdom abroad" or "seriously obstruct the promotion or protection of those interests." Despite a strong campaign by civil liberties advocates to include it, the new law, like the one it replaced, permits no room for a defense that disclosure is in the public interest or that the material involved is in the public domain or has been previously published elsewhere. In contrast to Canada, New Zealand, the United States and other European countries, there is no general right of access to government information in the United Kingdom.
British defamation law recognizes no defense that the plaintiff is a public figure or that the expression involved was in the public interest. The burden is on the defendant to prove the truth of the challenged claim. In fact, many judgments have been awarded in cases in which the published facts later proved to be accurate, such as Cabinet Minister John Profumo's suit over the allegation that he had shared a prostitute with a KGB officer, and Liberace's suit against the Daily Mirror in 1959 for implying that he was gay.
The most-publicized recent defamation suit in Britain involved an award of 500,000 pounds (about $1 million) to novelist and former Member of Parliament Jeffrey Archer over the suggestion that he had had sex with a prostitute, despite proof that he had given her 4,000 pounds ($8,000) British libel laws have a very wide reach. Encouraged by a 450,000 pound ($900,000) award won in Britain by a Greek citizen against a Greek newspaper that had circulated only fifty copies in Britain, former Greek Prime Minister George Papandreou sued Time magazine over a bribery allegation.
There is no affirmative right in the United Kingdom to engage in peaceful public assembly or to hold a meeting in a public place. Even to stand on a soapbox at the famous Hyde Park Speaker's Corner requires prior permission from the Department of the Environment. Urged in 1986 to include a right of peaceful assembly in the revision of the Public Order Act, the Home Office refused, but sent around a circular urging local police to bear the concerns of protesters in mind.
Reflecting the lack of affirmative protections for public protest, legislation in 1986 significantly expanded police power to control public marches, meetings and picketing. Proponents of the legislation capitalized on public concern in the mid-1980s over a series of inner-city riots, strikes by miners, marches by racist groups, and anti-nuclear demonstrations.
There is no practical right of appeal from police decisions to restrict or ban public assembly, unless they are found to lack any reasonable basis _ something British courts have been strongly disinclined to find. The broad power to order changes in the site of or number of participants in a demonstration carries the potential for interference with the intended message and impact of the protest. For example, a demonstration against the South African Embassy could be moved to the New Zealand High Commission, or a mass trade-union picket could be limited to a dozen persons.
If the chief constable believes a ban or restrictions on a specific demonstration are insufficient, he or she can apply to the local governmental authority for permission to impose blanket bans on all processions for up to three months, subject to the approval of the Home Secretary. Blanket orders aimed at preventing marches by the racist National Front have resulted in the cancellation of "Save the Whales" rallies and the annual trade-union May Day procession in London.
The 1986 legislation also imposed, for the first time, a national requirement that the police be given six days' notice of demonstrations, with criminal penalties for failure to comply. While formerly the police could impose conditions on marches only on grounds that "serious public disorder" may result, they now may take action based on anticipated "serious disruption of the life of the community" or "serious damage to property" or if they believe that the purpose of the gathering is to intimidate people. The legislation also explicitly permits the police to impose limits on the numbers and the sites of meetings, demonstrations and pickets.
The Police and Criminal Evidence Act of 1984, which expanded police powers of search, arrest and detention, also broadened police authority to seize otherwise confidential papers _ for example, journalists' untransmitted film _ for purposes of investigating a "serious arrestable offense." After a March 1990 protest rally against the unpopular "poll tax" turned violent, the London police demanded that television stations and newspapers hand over unused film so the authorities could find and charge suspects. When news organizations refused, the police obtained court orders to compel twenty-nine of them, including the Associated Press, to hand over film taken at the rally. In addition to abridging freedom of the press, this action endangered journalists. At a later rally in October, photographers were singled out for attack from members of the crowd fearful of being photographed.
The Broadcasting Act permits the Home Secretary "at any time, in writing, [to] require the [broadcasting] authority to refrain from broadcasting any matter or classes of matter as specified." In 1988, Home Secretary Douglas Hurd invoked these powers to bar the British Broadcasting Corporation (BBC) and the Independent Broadcasting Authority from "broadcasting any words spoken whether in the course of an interview or discussion or otherwise, by a person who appears or is heard on the program in which the matter is broadcast where ... the person speaking the words represents or purports to represent" or whose words "solicit or invite support for" a list of specified organizations, including not only proscribed "terrorist" groups like the Irish Republican Army, but also two legal political parties _ Sinn Fein, the legal political arm of the IRA, and a smaller group, Republican Sinn Fein.
The broadcasting ban has resulted in a lessening of coverage of events concerning Northern Ireland, and in self-censorship beyond the probable scope of the law because of difficulties in interpreting it. Deciding whether someone who is not a member of a listed organization will speak in "support" of a listed organization or will "solicit or invite support for such an organization" is not always easy. A broadcaster must either pre-record an interview and expurgate prohibited words, or play it safe and refrain from interviews. A number of people who are not members of listed organizations have been banned, including Brighton Labor Councillor Richard Stanton, former Member of Parliament Bernadette Devlin McAliskey; American author Margie Bernard; and an uncle of Paul Hill, one of the "Guildford Four," a group convicted of terrorist bombing who were recently released after their conviction was found to have been improper.
The United Kingdom has one of the highest prisoner-to-population ratios in Europe _ about 97 per 100,000. Overcrowding throughout the prison system is a serious problem (prisons are filled at 103 percent nationwide31) but it is particularly dramatic in local, pretrial prisons, some of which are overcrowded by fifty percent.
Sanitary conditions are dismal in many British prisons. Many institutions are old, Victorian-era structures in which cells lack integral sanitation. Prisoners use chamber pots to relieve themselves and must do so in the presence of their cellmates. Inmates spend most of the time in their cells and between 7:00 P.M. and 8:00 A.M. are unable to leave the cell at all to empty the pot. The effect is that many cells become smelly and insect-infested.
Other hygiene-related problems noted by Helsinki Watch during visits to six prisons in England and Wales and two institutions in Northern Ireland include lack of clean clothing and bedding and insufficient availability of showers. There are also frequent complaints about the quality and quantity of food. Especially troubling is the timing of meals. The last meal is served at 4:00 P.M. in many institutions, and breakfast is at 8:00 A.M. Inmates thus go for sixteen hours without food, leading some prisoners to complain that they are often hungry.
Excessive idleness is another serious problem for prisoners. At the large, pretrial prisons, where few work or educational programs are available, inmates spend as many as twenty-three hours each day in their smelly, overcrowded cells.
Detention of Foreign Nationals
A number of Arab residents in the United Kingdom suffered from arbitrary and unjustifiably harsh treatment by British authorities both prior to and during the Persian Gulf war. Between August 2, when Iraq invaded Kuwait, and January 17, when the allied attack began, British officials rounded up scores of Arab nationals, and served deportation notices on 167 Iraqis, Palestinians, Lebanese and Yemenis. Approximately half of these left prior to the outbreak of war.
Citing fear of terrorism after hostilities began, authorities detained and ordered deported an additional ninety Arab nationals. Thirty-five Iraqis were seized and declared prisoners of war, even though all but two were students studying in Britain. Though technically reservists (lengthy reserve service is mandatory in Iraq), these students were not on active duty and thus should have qualified as civilian internees, not prisoners of war _ a distinction entailing considerable difference in conditions and length of detention.32 All prisoners of war were released unconditionally on March 6.
Fifty-two Iraqis and Palestinians were detained on "national security grounds" and were served with deportation notices. By early March, none had been deported and all were released.
These detentions and deportations were carried out without any semblance of due process, in violation of international standards. Detainees were not informed of the specific charges or evidence against them, had no right to legal representation, and had no statutory right of appeal. Many of those detained had resided in the United Kingdom for years without encountering any difficulties.
The Right to Monitor
The United Kingdom has several groups that monitor and protest abuses of human rights, including Liberty (the National Council for Civil Liberties) and Charter 88, organized in 1988 to press for a Bill of Rights and other constitutional reforms. While these groups are able to operate without harassment or government interference, the European Court of Human Rights ruled against Britain in 1988 in a case involving the listing of two women as security risks because they worked for Liberty.
The principal human rights monitoring group operating in Northern Ireland is the Committee on the Administration of Justice, also known as the Northern Ireland Civil Liberties Council. In recent years in Northern Ireland there has been a rise in threats made against lawyers who represent defendants in cases of criminal violence, especially since the 1989 murder of Patrick Finucane, a human rights lawyer, who was shot and killed at his home, in front of his wife and children. A Loyalist group, the Ulster Freedom Fighters, claimed credit for the murder, but no one has been criminally charged for the act.
The Bush Administration's view of the human rights practices of its close ally, the United Kingdom, is expressed publicly only in the State Department's annual Country Reports on Human Rights Practices. The Country Reports for 1990, published in February 1991, understate human rights abuses by the British government in Northern Ireland. Indicating correctly that ten people were shot and killed by security forces during 1990, the report states that these killings were "in the line of duty," and that several shootings "prompted allegations that soldiers were carrying out a `shoot to kill' policy." It fails to state that in four of the six incidents the police version of the events was seriously disputed, and that some of these killings may have violated established principles of international human rights law.
In its section on torture, the report states that confessions obtained by torture are not admissible as evidence in court. It does not state that the standard for admission of confessions in the Diplock (non-jury) courts in Northern Ireland under the Northern Ireland (Emergency Provisions) Act differs significantly from the traditional rule that only "voluntary" statements may be introduced into evidence. In the Diplock courts, while statements resulting from torture or inhuman or degrading treatment, or from threats of violence, theoretically cannot be admitted in court, statements resulting from "psychological pressure" or "inducements" can be taken into evidence. This broad exception to the traditional voluntariness standard may play a role in the widespread use of confessions induced by severe beatings in the Diplock courts.
Nor does the report discuss physical abuse during pretrial interrogation. Helsinki Watch met with many lawyers and former detainees who reported cases of serious physical abuse during interrogation. The safeguards that theoretically prevent such abuse _ chiefly monitoring by closed-circuit television cameras _ appear to be ineffective.
In its section of the denial of a fair public trial, the report refrains from using its own voice in describing a 1988 change in the law that permits courts to draw adverse inferences from the exercise of a suspect's right to silence during interrogation or at trial. The report puts forth the government's reasons for the change _ to address the "wall of silence" and "ambush testimony" whereby a suspect does not speak until his trial and then presents a surprise alibi. However, while quoting an independent governmental body about fears that these moves could lead to "a cloak of confidence in justice in Northern Ireland," the report fails to indicate in its own voice that this change has fundamentally eroded the right to silence in Northern Ireland in all cases allegedly involving political violence.
In its section on freedom of peaceful assembly and association, the report overstates the United Kingdom's protection for peaceful public assembly by asserting that "except in cases of extreme civil disorder, in which public safety is judged to be at risk, the authorities do not exercise their statutory right" to limit rallies and demonstrations. A report on freedom of expression in the United Kingdom by Helsinki Watch and the Fund for Free Expression found that the police and local authorities have extremely broad powers to order changes in the site or nature of demonstrations and public meetings, and to impose "blanket bans" on all protests in a certain geographic area for up to three months at a time, and that such interventions are not rare. For example, during the summer of 1989, processions and marches within a four-mile radius of the Stonehenge monument were banned for a short period. The standard adopted in the 1986 Public Order Act permits such restrictions to be made on the basis of a risk of "serious disruption to the life of the community," which is a considerably weaker standard than "extreme civil disorder."
The Work of Human Rights Watch
In January, Helsinki Watch sent its first fact-finding mission to investigate human rights abuses in Northern Ireland. In October, Helsinki Watch published the findings of the mission in a major report, Human Rights in Northern Ireland. The report concluded that human rights abuses are persistent and ongoing, affect Protestants and Catholics alike, and are committed by both security forces and paramilitary groups in violation of international human rights and humanitarian laws and standards. Helsinki Watch urged paramilitary organizations in both communities to put an end to such violence and called on the United Kingdom to enact legislation that strictly controls the use of lethal force in Northern Ireland. Helsinki Watch also recommended that the power to intern without trial be abolished, that a number of steps be taken to ensure the fairness of criminal trials, and that the powers provided under the Prevention of Terrorism Act to exclude citizens from one part of the United Kingdom to another be abolished.
On February 10, Middle East Watch published a newsletter condemning the British government for its arbitrary and illegal detention and deportation of Arab nationals. The newsletter called on the government to release all those detained or afford them basic due process rights.
In April, Helsinki Watch and the Fund for Free Expression sent a mission to Britain to investigate restrictions on freedom of expression in the United Kingdom. In October, they released a report, Restricted Subjects: Freedom of Expression in the United Kingdom. The report recommends the repeal of the Official Secrets Act _ or, at a minimum, its reform to provide for a defense that the disclosure at issue serves the public interest or has been previously published elsewhere; a bar on the use of injunctions against the press for publishing material obtained in breach of confidence; the revision of the defamation laws to provide a higher burden of proof for plaintiffs _ particularly those who are public officials or well-known public figures _ and stronger defenses for those sued, such as the claim that publication serves the public interest; the revision of the Public Order Act to recognize an affirmative right of peaceful assembly and to limit police and local authority power over assemblies and demonstrations to the imposition of impartially applied time, place and manner restrictions; and the rescission of the Northern Ireland "broadcast ban" and reform of the broadcasting statute to insulate the BBC and independent television and radio from government interference with program content.
In May, Helsinki Watch sent a mission to investigate prison conditions in the United Kingdom. A report on the mission is expected in early 1992.
These juries cannot find, for example, an "unlawful killing by unarmed persons," but only that "death resulted from a bullet in the head."
A prison that is filled at one hundred percent of its capacity is in fact overcrowded because, in any institution at any given moment, some cells are temporarily unusable due to repair or other reasons.
See Middle East Watch, "Arabs Detained in the U.K.," February 10, 1991, p. 3.