UK Law

At a time when half the Police Forces in Britain seem to be gainfully employed on investigations of the real or alleged misdeeds of the other half, the image of British justice, formerly as reliable and predictable as Mrs Thatcher’s attitude to Europe, faces us like something grinning out of a crazy mirror at a fairground: paunchy, knock-kneed, grotesque. But, it will be argued, the driver of the tumbril has suddenly thrown the thing into reverse. The Guildford Four are free, and officially declared innocent. The Maguires are not far behind them. As far as the Birmingham Six are concerned, it appears to be only a matter of time. And Kevin Taylor got off, didn’t he? Retrospective justice is at least better than no justice at all, and the Court of Appeal will always get it right in the end. This is not a view which is taken by Lord Denning. British justice, he said after the quashing of the Guildford Four verdict, was ‘in ruins’. It is important, however, to pinpoint the cause of his concern. It is not the action of the Police leading to the wrongful convictions of the Guildford Four which appears to trouble him, but the Court of Appeal’s decision to set them free. He had stated earlier that the Guildford Four ought to remain in gaol, guilty or innocent, because of the horrendous consequences for public confidence in British law of admitting that an injustice had been done to them.

This profoundly instrumentalist view of English law sits oddly with the more traditional belief that it is better that guilty men go free than that the innocent be punished. Nevertheless, there is now a rare, and probably brief, consensus about the seismic nature of what has happened between those who have had their worst fears realised and those who know that their suspicions were well-founded.

The monolith which has cracked is one which straddles the Irish Sea. Hill’s book and Conlon’s make this clear. After their arrest and trial, and the brief flurry of protest, there was a long period, reaching well into the Eighties, when the sense of injustice was little more than a private hurt, its barbs sunk deep only in the flesh of family and close friends. In Ireland there was little support for the Guildford Four for many years. Not even the tragic and dignified death in gaol in 1980 of Giuseppe Conlon, Gerry Conlon’s father, occasioned much initial protest. Such as there was came from people like Fathers Raymond Murray of Armagh and Denis Faul of Dungannon – who for many years were unable to convince either the media or the public of the distinction between two profoundly different issues: the IRA’s struggle for a united Ireland and the defence of the civil rights of the minority population in the North.

The blurring of the all-important demarcation line between these two issues has been a hallmark of IRA strategy, which consistently depicts its Armalite-laden cadres as ‘defenders’ of the Catholic population of the North. The fact that much IRA policy is cynically devised to increase the pressure on that population as an aid to its own recruitment policy is still not widely understood. The ‘defender’ rhetoric is so pervasive in its effects that people who genuinely want to express concern about civil rights in Northern Ireland, or about abuses by the security forces there, now find that they have to spend a considerable amount of their time proving positively that they are not IRA fellow-travellers. Small wonder that many give up, or that even in the Republic, which prides itself on being the essential guarantor of the rights of Northern Catholics, there is an endemic suspicion that many of the voices on the other side of the Border are simply crying ‘wolf’. In addition, the South’s tradition of constitutional nationalism, which is now as firmly established, and about as conservative, as the British monarchy, has (if the truth be told) little time for most of the intermittent yells of protest that come from the working-class redoubts of Ballymurphy and the Falls Road in Belfast.

Partly, this is the result of the corrupting nature of IRA ideology, but another cause can be identified in the politics of the Anglo-Irish Agreement of 1985. This undoubtedly acted to damp down potential political support for the Guildford Four and the Maguires in Ireland, but the Agreement goes unnoted in the chronology of Hill’s book. Civil rights generally take second place to the exigencies of realpolitik, and in 1985, with such a glittering prize on offer, there were plainly diplomats and politicians in Dublin who either found it convenient to believe in British justice or were, like St Augustine, seduced by the attractions of post-coital chastity. It was not until the following year that the bandwagon really got under way in Britain, with contributions by Yorkshire Television, Lords Devlin and Scarman, and Robert Kee. Irish public opinion, provincial to the last, finally fell in behind its UK counterpart.

What is most unexpected about the Hill and Conlon books, perhaps, is the intensity of their descriptions of prison life. Innocence may sharpen the memory: at all events, there are passages in both books which have a Kafkaesque quality, chronicling as they do the doings and the passions of that vast underclass which populates Britain’s prisons.

It is instructive to compare some of these pages with Gerry Adams’s Cage Eleven, his account of Long Kesh. With the exception of one or two chapters – a hard-nosed, political attack on force-feeding, some pop history about 1690 – his brief cameos are little more than a pathetically unsuccessful attempt to add something to the genus of prison literature. The pages are populated by apparently fictional characters such as ‘Cedric’, ‘Egbert’, ‘The Dosser’ and ‘Your Man’, whose foibles and exploits are catalogued with a pawky sense of humour, distinctly overdone. The prevailing literary and cultural tradition evident in the book does not seem to have any essential links to militant Irish Republicanism. Its more direct progenitor seems to be the schoolboy camaraderie of the Wizard and the Beano, allied to the (of course essentially British) stiff-upper-lip syndrome of Stalag Luft V.

The Hill and Conlon books, which will keep their shelf life long after Cage Eleven has been pulped, provide evidence that a belief in the fairness of British justice is not the only attitude to be found on both sides of the Irish Sea. There is evidence, too, of a deeply-engrained police culture, common to both jurisdictions and traditions, which holds in its simplest form that the Police, once they have made up their minds, are incapable of making mistakes. Nor is the culture confined to the Police: on the evidence of the legal hearings which took place, it also infects the judiciary – and there is more than a suspicion that large areas of the legal profession are not immune to it either.

This culture of inerrancy, in turn, shifts the focus of police work from detection to deduction – the latter a polite word, it is now clear, for guesswork. Deduction is combined with interrogation (rather than investigation) to produce the confessions on the basis of which enormous numbers of criminal convictions are obtained every day of the week in British and Irish courts. Perhaps this is only secondarily a product of the desire of the Police to secure a conviction. At a deeper level, I suspect, it derives from a generic unwillingness, on the part of that culture, ever to admit a mistake has been made. There are systems and societies in which the admission of a mistake enhances credibility: in the police culture, if you allow anyone to pick at one stitch, the whole garment unravels before your eyes.

The situation is charged with irony – if that is not too weak a word for circumstances in which innocent people have been deprived of their freedom. The central irony is that although the police are generally not supposed to arrest people unless they have evidence (in some jurisdictions ‘reasonable’ evidence) that the person concerned has committed an arrestable offence, the evidence which formed the basis for the arrest rarely forms part of the evidence at the trial. Evidence at the trial, in the shape of a confession, is generally evidence which has been obtained subsequent to the arrest.

It is not only the case that the evidence on which police suspicions are reputedly based is not submitted to the trial judge: defence lawyers, if they sought it, would in all probability be told that it could not be presented for reasons of police security. Indeed, one question to which no answer is forthcoming from among these books is a devastatingly simple one: why were the Guildford Four (or the Maguires, for that matter, or the Birmingham Six) arrested in the first place? The persistence of Kevin Taylor finally elicited an answer to that question in his own case – and showed it to be redolent of falsehood and misrepresentation.

The Birmingham Six were arrested on the same day as the explosions they were to be charged with causing took place; Paul Hill was arrested six days after the Woolwich bombing. Were it not for the need to get Hill convicted of the Shaw killing in Belfast in order to weaken further any defence he was to offer to the Guildford charges, these trials would probably have been over in weeks rather than months. This is not the timetable of detection: it is the timetable of LA Law, a scenario in which gung-ho tactics and inspired guesses lead to the inevitable happy ending (for the cops, that is).

Having arrested their ‘suspects’, the Police then have to make sure that the courts convict them. What better than a confession for this purpose? It obviates the need for all that dreary old detective work, with names, dates, places, interviews, witnesses and forensic fiddly bits. If it stands up, it’s final. Juries are impressed by confessions: that much at least has been established. And they tend to believe policemen. So the confession is at once the eager copper’s first port of call and his last resort.

One can only guess at the pressure put on the Surrey Police by their superiors, but it produced results. Paul Hill was arrested on a Thursday morning: by Friday evening, abused, beaten, threatened and starved until he broke, he had confessed to eight murders. He was to find out when he attempted to retract it that alleging duress and proving it are two different things, and that a policeman’s word is the hardest currency in the law courts. In fact, his conviction on the Shaw charge made it all but impossible for him directly to allege ill-treatment (and perjury by police witnesses) without the conviction being paraded for the edification of the jurors.

His statement was, in turn, to be the crowbar that prised statements out of the other defendants (not that they, too, were not intimidated and beaten). To the end, the defendants believed that they simply could not be sent to prison for something they knew they had not done, despite their confessions: their conviction that the liberal social contract would see them right was, even in that extraordinary darkness, quite profound.

Less than two months later, when the Balcombe Street IRA gang, without subjection to threats or coercion, admitted to having carried out the Guildford and Woolwich bombings, the Guildford Four must have thought that their ordeal was almost over. But they had reckoned without two refinements of police technique: the initial refusal to communicate this highly pertinent evidence to the defence, and the subsequent ability to change a false story to accommodate new and incontrovertible evidence which would otherwise have discredited it. In the Guildford Four case, the response to the IRA group’s revelations was to assert that the Balcombe Street gang and the Guildford Four were part of the same bombing team. Unfortunately, there were one or two facts which made this hypothesis unlikely. One of them, dealt with in some detail by Paul Hill, concerns the question of the car rented by the Balcombe Street gang, and provides us with a cogent example of the elasticity and creativity of police procedures.

The car concerned had been rented by the IRA in the name of ‘Moffitt’, but, inconveniently, was too small to contain the increasingly large number of bombers the Police now said were involved. Undeterred, the Police scoured the register of the rental company until they discovered another renter named ‘Moffat’ who had hired a larger car for a period that covered the bombing date. Making no effort to contact ‘Moffat’ (who was alive and well and living in South Africa, a fact unknown even to the defence until it was too late), the Police alleged, with absolutely no corroborative testimony, and in the face of the IRA evidence, that ‘Moffitt’ and ‘Moffat’ were the same person – and they were believed by the appeal judges.

The tendency to alter a false story to accommodate bits of awkwardly irrefutable evidence is not one which is confined to the British Police, as one Irish example may help to prove. Some years ago a dead infant was discovered on an Irish beach. Detectives in a nearby town scoured hospital records for information about any young women who had attended in a post partum state, but without a child, and succeeded in identifying such a woman. After a series of interviews with the Police, she confessed to disposing of the baby. The belief of the forces of law and order that all the loose ends had been tied up neatly and quickly was quickly dissipated when it emerged that she had actually disposed of a different baby at a spot much closer to her home, and that the two infants, although they could have shared a mother (this was not proven), had definitely not shared a father. The theory had to be, and was, rapidly recast: the unfortunate young woman was now believed by the Police to have had twins, by different fathers, and to have disposed of them at different places and in different ways. It was, after all, the only theory which fitted both the allegations and the facts, and so it had to be true. It took a lengthy and expensive judicial tribunal to sort out the mess.

The point of going into these events in some detail is to underline the now evidently dangerous truth that, for policemen under pressure (and perhaps not under pressure) in the British and Irish systems, the extraction of confessions has become a kind of addiction, and that the old distinction, which existed in theory even if it was frequently breached in practice, between the investigatory and prosecutorial roles of different parts of the state security system has been dangerously elided. This is one of the hinges which connect the Hill and Conlon books with Taylor’s. It was not until 1982, five years after the Guildford trial, that the Attorney-General’s revised guidelines on discovery stated that there was a duty on the prosecution to disclose information relevant to the defence. It was precisely on the grounds of non-disclosure of the Surrey Police interrogation records that the Guildford Four’s convictions were quashed.

Whereas Hill, Conlon and the others were successfully convicted of a crime which they had not committed, but which had indisputably occurred, a most extraordinary attempt was made to convict Taylor of a crime which had never been committed, and for which there was no evidence. The attempt was made in a manner which strongly suggests that where state security is deemed to be at stake, the official view now is that the end justifies any means. It is evident that in picking on Taylor, the Greater Manchester Police chose the wrong target (an anonymous confidant – one of several in Taylor’s book – told him that initially two other Manchester businessmen had been fingered as fall guys, but had been discarded because they were Irish and because they were financially more secure than Taylor). A tough, self-made businessman and gambler, who won £27,000 in one night in 1963 playing poker on a commission basis, Taylor is at another level an embodiment of many of the virtues Mrs Thatcher is prone to recommend: self-reliance, initiative, enterprise, and a belief in ‘the British way of life’.

The fact that it took the Police five years to assemble a case against Taylor which was eventually laughed out of court (although not before he had been financially ruined) is a matter of public record. What is still unclear is the motivation for the prosecution. Taylor himself is in little doubt, even if much of the evidence he adduces is circumstantial. If we are to believe it, the Taylor prosecution was part of a contingency plan which was set up to be activated if the Stalker police enquiry in Northern Ireland got too close to anything of significance for ‘national security’. The linchpin was, Taylor claims, the transcript of the tape of the hayshed killing which Stalker was investigating: he was removed from the enquiry days before the transcript was to have been made available to him.

Taylor does not prove his case. In the nature of things, and given the high value put on official secrecy and police confidentiality (it was years before he was to see the original deposition on the basis of which he was arrested, and which was kept secret in the interests of ‘national security’), the case is one it would be almost impossible for a single individual to prove. But his tapestry of evidence, and the connections he makes, eventually present a compelling picture of police officers who can only have done the things they did, said the things they said, and swore the things they swore, if they believed that their ultimate protection was the defence of national security, and that this consideration justified perjury and malicious prosecution.

One of the counsel representing two of the police officers involved even made an unguarded reference, in the closing stages of Taylor’s trial, to ‘the interests of national security, and Ireland’. As Thoreau said, some circumstantial evidence can be extremely strong, as, for example, when one finds a trout in the milk. The trout is there to be seen in Taylor’s book, as large as life, twisting and turning in its efforts to disappear from view.

If the enquiry just announced into the Taylor case comes up with evidence to substantiate even a quarter of his allegations, I hope Kevin Taylor sues, and sues, and sues, and wins. But he should not have to do so. The most extraordinary anomaly in all this is that he would probably be in a stronger position if he had been found guilty: were it not for the indignation of Mr Justice Sachs, one of the few legal people to emerge from this charivaria with his reputation enhanced, he might well have been. There are fewer remedies available to those who have been found innocent and they are more expensive. This is, in itself, yet another severe indictment of the system. Any system that is afraid to correct itself may well turn out to be fatally deficient. And it should not be lost on those in power – but may well be – that the ultimate beneficiaries of the coverups, the cowardice and the corruption, and of the failure to put them right, are the paramilitaries who have always claimed that British justice is capricious, vindictive and nationalistic, but who were never so optimistic as to believe that this would stand up in court.