Irish Cases since 1969
A detailed examination of the relationship between criminal law and Northern Ireland is outside the scope of this work. If one accepts, however, that during the 1970s there was a resurgence in conspiracy law amounting, at one stage, almost to a prosecutorial obsession with conspiracy charges, such a resurgence must be seen, in part, in the context of Northern Ireland. Certainly, a number of cases involving Irish nationalists found their way into the Law Reports for the first time since the nineteenth-century. Apart from these narrowly ‘legal’ decisions, many conspiracy trials since 1969 have resulted in Irish Republicans serving long sentences in English prisons.
Northern Ireland is, legally, part of the United Kingdom. It has never been subject to the same laws as the mainland, and many of the generalisations applied to British institutions are falsified by the position in the six counties of Ulster. In 1922 the Civil Authorities (Special Powers) Act (Northern Ireland) provided for indefinite internment without trial and suspension of freedom of the press and habeus corpus. Other characteristics of the ‘special regime’ have included an armed police force, trial without jury, the acknowledgement of categories of political prisoners and a series of allegations of torture, assassination and the use of agents provocateurs. The breakdown of law and order in Northern Ireland has, from time to time, spilled over onto the mainland, resulting in a crop of conspiracy trials.
In 1971 a canister of CS gas was thrown onto the floor of the House of Commons as a protest against the use of gas by law enforcement against agencies in Belfast. Roche, who was responsible, and Bowes Egan, an Irish political activist who was nowhere near the Commons at the time, were charged with conspiracy to effect a public mischief. They were acquitted.
In 1972 the Hackney Arms Trial, involving charges against Irishmen of conspiring to effect a public mischief, saw the spectacle of part-time Special Branch agents being cross-examined as to their role in the conspiracy, and the eventual withdrawal of all charges ‘to protect the identity of certain persons in the interests of their own personal safety’. The defendants were discharged after spending eight months in custody. Later in the same year, the Aldershot Bomb Trial revealed the absurdity which could result from inappropriate conspiracy charges. Following the deaths of seven people in an explosion at Aldershot, the accused were charged with murder, firearms and explosives offences, and conspiracy to effect a public mischief. The latter, presumably added in case the evidence on the substantive charges did not convince the jury, was thrown out. Its addition to the indictment had permitted the introduction of evidence of the accuseds’ political learnings – in particular, copies of Peking Review, Che Guevara’s Guerrilla Warfare, Connolly’s Labour in Irish History, the Selected Writings of Mao-Tse-Tung and Black Power by Stokely Carmichael were used to infer murderous intent. In the words of Robertson:
England does not have internment, but it does have a law of criminal conspiracy. Conspiracy charges subvert some of the most cherished precepts of English law and perhaps for that reason they are popular with police and prosecutors in trials with political overtones, because they make it easier to obtain a conviction through ‘guilt by association’. The prosecution can blacken a defendant’s character and arouse jury prejudice against him with evidence that would be inadmissible on all non-conspiracy charges.
Jacqueline Kaye, writing in 1973, reviewed four years of trials of persons for ‘crimes which arose from the disagreement with the British role in the six counties’. Of 30 such cases, more than half had involved conspiracy charges, ranging from conspiracies to purchase arms and to cause explosions, to agreements involving a breach of the peace. The conspiracy trials revealed a consistent pattern of massive security precautions, allegations of entrapment and provocation, and the use by the prosecution of political literature as evidence. The judicial attitude to this seems best summed up by Mr Justice Kilner-Brown:
Once one is involved in allegations of conspiracy, dealing with large quantities of arms, it seems to me to be highly relevant to that, evidence, if it is available, of membership of some organisation.