Sixteen years after the signing of the Good Friday Agreement, cases of Irish Republican political activists appearing before colonial judges are none too rare in what some call “Northern Ireland”. Of course, the Republicans are not from Provisional Sinn Féin, who have made their peace with Queen and Empire – but they are Irish Republicans none the less.
Despite their fairly common occurrence, one recent case seemed to symptomise the state of civil liberties in the colonial statelet so as to deserve some detailed analysis. On January 6th Gary Donnelly (43) and two other Derry Republicans, Terry Porter (56) and William Brogan (51), won their appeals against a sentence of six months imprisonment for painting slogans on the famous Derry Walls but money was paid on their behalves into the court.
The judge, Philip Babbington, ordered the £2,600 (€3,300) compensation to be equally divided between the Northern Ireland Environment Agency, which has responsibility for the upkeep of the Derry Walls, and the charity Foyle Search and Rescue. No explanation seems to have been given as to why the total sum, which was supposed to have been necessary to remove the anti-internment slogans, was not to be paid in its entirety to the Environment Agency; nor am I aware of any detailed examination of the alleged cost of £2,600 (€3,300) to remove a few painted slogans.
“Speaking outside the court Colr. Donnelly said he was ‘relieved’ that the case was finally settled. He said: “I am glad that I am now able to represent the voters of the Moor ward who elected me. There had been a lot of donations made towards this case by people in the city and I am glad that it is going to Foyle Search and Rescue.” He denied that there had been any brinkmanship in the case and said when first arrested they had been held for two days and police had tried to prevent them getting bail.
“Cnclr. Donnelly went on: “Graffiti has long been a tool of the working class for years and there was even graffiti on the walls calling for Home Rule1. More damage was caused to the Walls by the installation of lights and the building of the Millennium Form than by anything we did. “I have no regrets for anything I have done.”2
The appeal hearing was attended by four TDs3: Éamonn O’Cuív (Fianna Fáil), Clare Daly (United Left Alliance), Thomas Pringle and Maureen O’Sullivan (both Independents). Also in attendance were numerous councillors from local authorities on both sides of the Border. This attendance, at the court case of one with whose politics most of them would not be in agreement, indicated perhaps some sense of solidarity among public elected representatives but probably more a rising concern among some (albeit not nearly enough) at the state of civil liberties in the Six Counties.
When Donnelly and the other two republicans had last appeared before another judge to answer a charge of “malicious damage” to the Walls (by painting the slogans), no money had been made available to the court and they had been sentenced to six month’s imprisonment. The judge hearing the appeal, Babbington, replaced that sentence with a conditional discharge for 12 months. This means that they will serve no prison term on this charge but if, within 12 months they are again arrested and convicted, this conviction will be taken into account and could result in prison terms.
The original sentence of six months’ jail for painting slogans, even at such an alleged cost of their removal, was excessive. But the impact of this sentence in the case of Gary Donnelly went far beyond that on him, his family and friends. Gary Donnelly is a Councillor, elected to the Derry & Strabane Super-Council and, according to the rules of that body, a sentence in excess of three months would cause him to lose his seat. That in turn would have disenfranchised those who voted for him.
Donnelly was one of four new Independent councillors elected last year, the other three being Darren O’ Reilly, Dee Quigley and Paul Gallagher (Strabane). Gary Donnelly, standing as an Independent, topped the poll in the Moor ward (home of the Deputy First Minister Martin McGuinness), out-polling former Sinn Féin Mayor Kevin Campbell by 50 votes. The three Derry-based Independent councillors have taken two SDLP and one Sinn Féin seat.
These new Independent councillors have a background of years dealing with issues affecting their local communities, often on a daily basis, such as poverty, anti-social behaviour and the growing addiction crisis. Judge McElholm had been made aware that Donnelly would lose his seat if the judge went ahead with his sentence but he was not to be swayed from his course.
Naturally, it is not being suggested that elected Councillors (or any others, including appointed judges) should be permitted to act as they please without consequences, merely because of their office. However, a judge behaving in accord with the principles of a democratic system would take care that the sentence leaned away from disenfranchisement of voters if possible. And of course, it was possible, since a non-custodial sentence or one of anything up to three months’ jail would not have had Donnelly lose his seat or disenfranchised his voters.
For those who are aware of the history and current reality of the Six Counties, that colonial statelet often called “Northern Ireland”, associating it “with the principles of a democratic system” is bound to raise at least one eyebrow. The formation of the statelet was in itself a denial of democracy and self-determination to the Irish people in 1921 and its laws and practice were so undemocratic, so discriminatory against the large Catholic minority, as to give rise to the popular movement for civil rights that began in 1968. The infamous repression exercised by the statelet’s police and courts and its sectarian civilian allies on that movement led in turn to a war of 30 years. Not a single democratic reform was granted by the statelet until that war was well underway. Nevertheless, since its administrators claim it is democratic, it may be useful to subject it to the test of compliance with recognised democratic principles.
THE JUDGES AND THE SYSTEM
During all that history of lack of democracy, institutional discrimination and repression in the Six Counties, judges played their part, faithful to the system. Today, despite some hard-won reforms especially in housing allocation and in voting qualification, the statelet continues to be a colonial one, undemocratic still in many ways, with a sectarian and repressive police force. And the judges continue to play their part.
The original judge dealing with Donnelly’s case, McElholm, revealed his own political bias on a number of occasions during the conduct of the case, even without taking into account the six-month jail sentence. According to media reports, when the three appeared before him again for non-payment of the fines, he said that the painting of the walls was a “wholly uncalled-for exercise”. He stated that “internment ended ‘a long time ago’, and that it was insulting to the entire legal system to say it continues.”4
Well, was the judge sentencing the three Republicans for “criminal damage”, the words appearing on their charge-sheet, or for carrying out what he considered politically or morally to be a “totally uncalled-for exercise” and for “insulting … the entire legal system”? I would have thought that his words are evidence of a clear political bias.
Nor was it the only occasion when the same judge expressed political bias in respect of Gary Donnelly. When the Irish Republican made his application for the abolition of his curfew (which he had accepted as a condition of being granted bail when first charged), he did so on the basis that having to be indoors by 8pm was a serious restriction on his campaigning work for election, an infringement on his democratic rights and on those who might vote for him. Again, Judge McElholm saw fit to express his political bias in heavy sarcasm. According to media reports, although he granted an exemption of two hours (i.e. until 10pm) on the curfew, Judge McElholm then asked: “Is he going to put up posters or paint his name on walls saying vote Donzo?” He went on to say: “It is clear the democratic process is very dear to Mr Donnelly’s heart”5 and “The great working class people I’m sure will now come flooding to his door.”6
BAIL CONDITIONS AND CURFEW AS A POLITICAL WEAPON
The issue of Donnelly’s bail conditions and curfew have been alluded to earlier. People in the West outside of the Six Counties (with the exception of people in other European areas of repressive colonial occupation, such as the southern Basque Country) may be surprised to learn that the imposition of a curfew has become customary as a condition of granting bail to Republicans in the colony. This might have made some sense in the case of slogan-painting, with which Donnelly was accused, and which one would imagine would take place at night. But even so, did a curfew have to be imposed? Would it not be enough that if he were caught doing it again before trial, that his bail would be revoked?
In a democratic system, since the accused are to be “presumed innocent until proven guilty”, they should be at liberty until such time as are tried and receive a verdict. That is the purpose of releasing those charged “on bail” while awaiting trial. They may be found “not guilty” at the end of their trial and even if found “guilty”, the sentence may be a non-custodial one. So, if the accused is thought not to require a custodial sentence, why should he already have spent time in jail? However it is a fact that many Irish Republicans have spent time in jail while awaiting trial. In Donnelly’s case, after two days in custody and against police advice, he was given bail but on a number of conditions.
The purpose of conditions being set for bail is supposed to be related to the specific case and to be reasonable. A financial surety is set in order to deter the accused from absconding before trial. Other than that, what conditions are reasonable? Well, a man accused of assault on another may have a bail condition not to approach his alleged victim and to stay away from that person’s home or place of work. Or to stay away from people who are to be called as witnesses. But how is it to be considered reasonable to set a curfew as a bail condition? And of wearing an electronic tag to ensure compliance? Or of not going to political meetings or meeting with political activists? Or to not reside in a particular town?
These conditions and variations of them have been imposed on a number of Irish Republican activists in the Six Counties. In fact, that same Judge McElhome also imposed a nightly curfew on Gary Donnelly on a previous charge, in August 2010, when he released him on bail to face charges under “anti-terror” legislation, relating to pipe bombs incidents in September 2009. In December 2010, the charges were dropped.
Martin Corey, a Republican prisoner released under licence under the Good Friday Agreement, had his licence revoked and after four years in prison (without even a police interview or charge, never mind a court appearance) was released on a kind of bail or licence under conditions which he is not permitted to divulge but are rumoured to include wearing a tag and not associating with “known dissidents”.
Perhaps one of the most illustrative examples was that of Stephen Murney, an activist with the Éirigí group, who was arrested on spurious charges in November 2012 and refused bail. When his appeal against that refusal was heard after six months in jail, the judge granted bail but on conditions: Murney was to wear a tag, observe curfew, stay away from certain political activists and stay away from Newry — the town in which he lived and where his partner and child also lived. To his credit and taking an important stand for civil rights, Murney refused to accept the conditions and spent 14 months in custody awaiting trial. Eventually, some of the charges were dropped and he was found not guilty of all remaining charges.
CRIMINAL OR POLITICAL CONVICTIONS?
A member of the 32-County Sovereignty Movement, Gary Donnelly has been politically active for many years. Something has been made in reporting of the case that Gary Donnelly has previous criminal convictions – he has a police record and he has also had a number of charges eventually dropped. In March 2010, he was sentenced to seven months jail on a charge of assaulting a police officer. At one of his recent court appearances, a police officer said he he had criminal convictions also for public order offences and one for arson.
In many societies outside the Six Counties this might seem extraordinary for an elected representative but I would submit that it is the system in the Six Counties that is extraordinary, at least with regard to what might be expected of a European democracy.
Donnelly’s “criminal convictions” would have been no secret and his voters put him in office despite those convictions and quite possibly even in part because of them. I do not have the details of the incidents that gave rise to them but any half-awake observer of life in the Six Counties knows that with a sectarian and repressive police force hostile to Republicans, acquiring convictions for “assault on police officers” may be the result of police concoction, self-defence by the charged or even actual assault but in all those cases, the likelihood is that the incidents are overtly political in nature.
Convictions for “public order offences” are probably the most easily-acquired by political activists and often mean merely that the person convicted refused to cease his or her protest when ordered to do so by a police officer. It is rarely possible, with any hope of success, to challenge the justification of the police officer in ordering the protest to finish.
“Arson” can also be a political offence and I once heard a Garda senior officer declare that burning a purchased US flag in a public protest was “arson”! And, as has been clearly demonstrated, the “criminal damage” which has now been added to Donnelly’s police record, both in its content and in its treatment, was political.
INTERNMENT – WHEN IS IT NOT?
Although no-one denies that the British implemented internment between August 1971 and December 1975, when 342 people were subjected to it7, there is far from universal agreement that the British are practicing internment in their colony today. One supposes that the socialists and social-democrats there at present don’t agree that it is being practiced — or surely they would be protesting against it! And, as we saw earlier, Judge McElhone declared that internment had ended back in the 1970s and that to state that it was still being practiced was “insulting …. to the entire legal system”. Sinn Féin don’t call it internment on the rare occasions upon which they refer to the victims but that may be more an issue of convenience than of terminology. Even a member of a Republican organisation which is opposed to the Good Friday Agreement recently argued with me that what is happening is repression but is not internment.
Well, I’m quite interested in correct use of terminology myself, so I thought I’d better look up the definition in a number of on-line dictionaries. It turns out that dictionary definitions of “internment” vary somewhat. Wikipedia has it as “the imprisonment or confinement of people, commonly in large groups, without trial, while for Dictionary.com it is “the act of interning or state of being interned, esp of enemy citizens in wartime or of terrorism suspects”. Dictionary.com goes on to elaborate that “Internment means putting a person in prison or other kind of detention, generally in wartime. ………….. Internment usually doesn’t involve a trial, so you’re being held because someone thinks you might be dangerous, but there’s no proof.”
Grammarist has it as “the act of detaining a person or a group of people, especially a group perceived to be a threat during wartime,” while for Cambridge Dictionaries on line it is “the act of putting someone in prison for political or military reasons, especially during a war.” Macmillan Dictionary defines it as “the act of putting someone in a prison without officially accusing them of a crime, especially when this is done for political reasons”.
Sifting through these definitions then, the most common aspect is that internment involves imprisonment without trial. It may be applied to many or a few (and let us remember that Oswald Mosley, of the British Union of Fascists, was interned by the British on his own during WW2 albeit in a house with grounds). Two definitions mention wartime, while some allude to “terrorism” and a few mention “political reasons”. On the basis of those definitions, internment is undoubtedly being practiced in the Six Counties.
Refusing Republicans bail (e.g. Stephen Murney, Colin Duffy and man others) and revoking licences (e.g. Marian Price, Martin Corey) have all resulted in imprisonment without trial – for periods varying from a year to four years. The individuals may be – and often are – eventually found “not guilty”, or their convictions overturned (as with Colin Duffy, Brian Shivers and, one hopes, the “Craigavon Two”) or released on “humanitarian grounds” but they will already have spent time in jail. This was the reasoning which no doubt lies behind a number of political activities against the current internment and certainly was expressed at the founding meeting of the Anti-Internment Group of Ireland (of which I am proud to be a member) which has organized public meetings, demonstrations and information pickets in various communities in Dublin and in other parts of Ireland. The non-party Group was set up by some of the campaigners in the also non-party Dublin Free Marian Price Campaign after the partially-successful conclusion of that struggle (Marian Price was released on “humanitarian grounds” but already in broken health). The AIGI can be found on https://www.facebook.com/pages/End-Internment/581232915354743?fref=ts
Imprisonment puts a strain on the individual prisoner and also on friends and relations – and, indeed, on relationships. It disrupts the political work of the person jailed and of their organizations. And it serves as a threat to others considering becoming active in opposition to the State. Its purpose in these cases is primarily political. The deprivation of liberty without due cause is a violation of human rights and to do so for political reasons, which is clearly the case here, is a violation too of civil rights.
That the legal system in the Six Counties is being used in this way should come as no surprise to those familiar with the operation of colonial law or indeed to any readers of Brigadier Frank Kitson’s Low Intensity Operations (1971)8. Kitson completed the book while on military service in the Six Counties but mainly drawing on his experiences in repression of resistance in Kenya and in Malaya in the 1950s. In the Six Counties Kitson was commander of 39 Airportable Brigade from September 1970 to April 1972, with responsibility for one of the British Army’s three main regional sub-commands in the Six Counties, the greater Belfast and Eastern area.
One of the units under Kitson’s command, 1st Para, was the main actor in killing and wounding a large number of civilians in Ballymurphy in July 1971 and in Derry’s Bloody Sunday in January 1972.
The Military Reaction Force, a special covert operations unit, was based at Kitson’s headquarters in Palace Barracks outside Belfast. Last November (2013), a BBC ‘Panorama’ investigative program on British counterinsurgency in the Six Counties in the early 1970s featured members of the MRF admitting to the murder of suspects and unarmed Catholic civilians.
Back in April 1972, within a few weeks of Bloody Sunday and his receipt of a CBE for his service in the Six Counties, Brigadier Kitson was flown to England to head the Infantry School at Warminster and Low Intensity Operations would become a British Army manual on counterinsurgency and counter-subversion.
In that book, Kitson approvingly quoted another repression “expert”9:
“…the Law should be used as just another weapon in the government’s arsenal, and in this case it becomes little more than a propaganda cover for the disposal of unwanted members of the public. For this to happen efficiently, the activities of the legal services have to be tied into the war effort in as discreet a way as possible..”
And so it has been in the Six Counties (and long before Kitson described its operation): the legal system being “just another weapon in the government’s arsenal.” At the moment, the “unwanted members of the public” being “disposed” of are Irish Republicans who do not agree with the Good Friday agreement and who organise to oppose British colonialism, some with arms but most through political agitationn — “unwanted” by British imperialism and Six County capitalism, that is. Their treatment should be enough to bring democratic people out in oppositon to these state practices but should it not do so, those people may wish to consider that tomorrow those designated as “unwanted members of the public” may be people protesting cuts in services, fracking operations, privatisation, or militant trade unionists ….
1 A movement for Irish autonomy within the UK (or, later, Commonwealth) between 1870 and 1914. Teachtaí Dála: Members of the Irish Parliament
4http://www.bbc.com/news/uk-northern-ireland-foyle-west-29911768 (accessed 20 January 2015)
5http://www.bbc.com/news/uk-northern-ireland-foyle-west-26466837 (accessed 20 January 2015)
7 Even now a case is being taken by the Irish state against the British state to the European Court of Human Rights, over the torture of 14 victims of that internment. The Irish Government took the case of the 14 “hooded men” to the ECHR in the 1970s and won a judgement that the men had been tortured; however the British state appealed the verdict and it was changed to “cruel and inhuman treatment” (!). The Irish Government left the case there but recently RTÉ, the Irish TV broadcasting service, screened their programme The Torture Files based on documentation uncovered by the Pat Finucane Centre, showing the British Government had lied to the ECHR. Amnesty International publicly called on the Irish Government to reopen the case with the ECHR.
9 Sir Robert Thompson, Defeating Communist Insurgency; the lessons of Malaya and Vietnam (1966), F.A. Praeger, New York.