Human Rights in Ireland

Supergrass. A word forever associated with Northern Ireland in the 1980s. A bit like crispy pancakes and Dallas, it was difficult to grow up in the province in the 1980s and escape exposure to the stream of supergrass trials (not that I’m claiming the exposure had as much immediate impact on my three-year-old self as, well, crispy pancakes).

Supergrass trials were the ultimate result of the counter-terrorism strategy adopted in Northern Ireland following the Diplock Report. The Report, produced in the aftermath of Bloody Sunday, recognised the danger in continuing a highly militarised response to terrorism in Northern Ireland dependent upon internment without trial as opposed to criminal conviction. Lord Diplock looked on the criminal justice system as a more legitimate response to terrorism (at [13]): “[T]he courts of law and the procedures they use have in general held the respect and trust of all except the extremists of both factions”.

Whilst this statement significantly overplays the amount of cross-community faith in Northern Ireland’s criminal justice system in the 1980s, it served as the basis for Lord Diplock’s recommendation that a system of jury-less courts be adopted in Northern Ireland (to prevent jury intimidation in terrorism cases). This adjustment to normal trial processes, of itself, threatened the very legitimacy that Lord Diplock sought to draw upon. Worse, in terms of public perceptions of the system, was the degree of reliance that the Diplock system placed on confession evidence. Such evidence was a vital component of many prosecutions. This was particularly troubling when, in the words of Lord Justice McGonigal, the counter-terrorism law then in force ‘leaves it open to an interviewer to use a moderate degree of physical maltreatment for the purpose of inducing a person to make a statement’ (R v McCormick (1977) NI 105, 111).

As restrictions on such maltreatment of suspects were strengthened, and with the “Troubles” dragging into its second decade, the prosecuting authorities in Northern Ireland searched for another means of increasing the number of cases brought against terrorist suspects. What resulted from these efforts was the supergrass system. David Bonner explained the term as follows (Modern Law Review 1988, 23):

[T]he term supergrass … denote[s] someone who has participated in a number of criminal enterprises, who not only gives information to the police about them, but also agrees to give evidence in court against a significant number of persons alleged to be his accomplices in crime. In other words, he is an accomplice who turns Queen’s evidence on a grand scale.

Through the 1980s over 500 people were convicted on the basis of evidence of numerous supergrass trials. At the very least, the trials (and resultant remanding suspects in custody) had a significant disruptive impact on terrorist operations. The Provisional IRA at one point even resulted to offering an “amnesty” to supergrasses who retracted their statements (Bonner, 1988, 33). The cost was high, however, in terms of the credibility of criminal justice in Northern Ireland. With convictions turning almost exclusively on the evidence of the supergrasses induced to provide evidence (few were the virtuous “converted terrorists” trumpeted by the then Chief Constable of the RUC Sir John Hermon), and a higher conviction rate in Diplock Courts than in jury trials in Northern Ireland, a perception developed that judges had effectively become the tools of security policy. Docks packed with multiple suspects whose cases turned on supergrass evidence presented, for Tony Gifford, ‘a spectacle of herding people towards prison, such as is unworthy of the name of justice’ (Tony Gifford, Supergrasses: The Use of Accomplice Evidence in Northern Ireland (Cobden Trust, 1984), 33). With the signing of the Anglo-Irish Agreement, and an increasing number of successful appeals against supergrass convictions, use of the system was abandoned.

Until now, that is, and the trial (R v Haddock [2012] NICC 5) of 13 men (pictured above left) accused of the murder of Thomas English during the UDA/UVF feud in 2000. Some of the justifications for the use of the supergrass system in paramilitary trials remain as pressing today as they did in the 1980s (particularly in terms of the potential for witness intimidation). The packed dock was certainly reminiscent of the 1980s. But the basis for this supergrass trial is relatively new. Under s.71-75 of the Serious Organised Crime and Police Act 2005, provision is made for the reduction of an offenders sentence where they admit their own crimes and co-operate with the authorities in the trial of their accomplices.  In Haddock (at [13]) Gillen J noted that ‘both Robert Stewart and Ian Stewart entered into an agreement under SOCPA and having pleaded guilty to murder, received a substantial reduction in the tariff sentence imposed upon them.’ The problem for Gillen J was not so much the use of supergrass evidence, but the unimpressive quality of the evidence provided in this case by the Stewart brothers. Damning their testimony, Gillen J asserted that (at [325]) ‘[a]s drug abusers on a simply colossal scale theirs was a lifestyle where lying became part of the daily diet of living’. He was left unable to convict on the basis of their unreliability (at [378]):

In all of this I am confronted with the chilling possibility that whilst they may be telling part or even most of the truth, they may have falsely implicated one or more men who on this occasion either were not present or played a much less significant part not amounting to murder in the English incident … .  This could be anyone from the very top of this gang to the very bottom.  I have no way of knowing.

With this level of doubt surrounding the Stewart brothers’ evidence, 12 of the 13 accused walked free. The rationale for the current supergrass system, however, remains undiminished (and little removed from its earlier use in Northern Ireland). In the course of his judgment in Haddock, Gillen J quoted at length from R v Blackburn [2007] EWCA Crim 2290, [22]:

There never has been, and never will be, much enthusiasm about a process by which criminals received lower sentences than they otherwise deserve because they have informed on or given evidence against those who participated in the same or linked crimes, or in relation to crimes in which they had no personal involvement, about which they have provided useful information to the investigating authorities.  However, like the process which provides for a reduced sentence following a guilty plea, this is a long-standing and entirely pragmatic convention.  The stark reality is that without it major criminals who should be convicted and sentenced for offences of the most seriousness might, and in many cases, certainly would escape justice . . .  The solitary incentive to encourage co-operation is provided by a reduced sentence, and the common law and now statute, have accepted that this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction.’

The decision in Haddock does not change this rationale, indeed it simply confirms that in cases where witnesses have been offered considerable incentives and when their testimony is vital to the prosecution case, judges will have to pay close attention to the considerable possibility of deceit on the part of such witness. As Gillen J concluded (at [553]):

This judgment should not be seen as, and is not intended to be, a comment much less a criticism of the structure of the SOCPA regime which accommodates the use of accomplice evidence. Parliament has passed this legislation and it is for the courts to interpret and implement it faithfully.  Its purpose is to adopt the pragmatic approach that without it major criminals who should be convicted and sentenced for offences of the most egregious nature might, and in many cases, certainly would escape justice. The incentive is to encourage cooperation by provision of a reduced sentence. The common law, and now Parliament in this statute, has long accepted that in England and Wales as well as Northern Ireland this is a price worth paying in the interest of protecting the public from major criminals wherever possible.

Moreover, as the head of Northern Ireland’s Public Prosecution Service, Barra McGrory asserted yesterday, he still considers that it was “proper to place this case before the court”. In seeking to explain the disasterous outcome of the Haddock prosecution, he also pointed out that it would have been difficult, in advance, to have predicted how comprehensively the credibility of the Stewart brothers would be drawn into question by their behaviour in court. In short, have we seen the last of supergrass trials? There’s about as much chance of that as there is of me cooking crispy pancakes for dinner.

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