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10 March 2014
There are fears that controversial plans to tighten anti-terrorist laws will hinder rather than help the peace process, reports Matheu Swallow.
THE bombing of Omagh town centre has been met with universal horror and a heartfelt conviction that those responsible for the atrocity should be put behind bars.
Nevertheless, the overwhelming response from solicitors in Northern Ireland and the rest of the UK to the government's proposed anti-terrorist measures is that they are misguided.
Patrick Fahy of Fahy & Co, who has practised in Omagh since 1970, thinks the Prime Minister Tony Blair's proposals to combat the terrorists are simply a public relations exercise which will serve only to "corrupt and prostitute the criminal law".
The two most controversial measures being put before parliament by the government this week are:
to allow suspects to be convicted for being a member of a proscribed organisation on the evidence of a senior police officer; and
to introduce a new offence of conspiracy to commit a terrorist offence abroad.
The most controversial proposal is the first one.
Seamus Leonard, of Belfast criminal practice Sheridan & Leonard, describes it as "internment by other means".
Barra McGrory, of Belfast firm PJ McGrory, says: "I have spoken to very few members of the criminal defence bar who support this change."
Critics say convicting suspects on the word of a police officer, however senior, would be substituting suspicion for proof.
According to Amnesty International, such a change would "undermine the presumption of innocence and unacceptably shift the burden of proof onto the accused".
Michael Mansfield QC says he believes the senior police officers on whose evidence convictions may hinge will be able to escape cross-examination by claiming public interest immunity.
He is also concerned that the measure will further erode the right to silence that suspects used to enjoy in the UK.
Under the existing law relating to right to silence, a suspect's failure to answer relevant questions about his or her membership of a proscribed group will be used to corroborate a police officer's claim that he or she is a member of such a group.
"I hope the government will not go so far as to make non-cooperation of any kind lead to an inference," he says.
Meanwhile, it is already being claimed that the proposal will contravene the European Convention on Human Rights.
Article 6 of the convention provides for the right to a fair trial, pivotal to which is that there is an independent, impartial tribunal which must start from a position that the court has no preconceived notions and that there will be a presumption of innocence until the contrary is proved by the court.
Campaign group Advice on Individual Rights in Europe (AIRE) thinks that relying on the opinion of a police officer could be in breach of this article.
The second major plank of the government's proposals - outlawing conspiracy - raises questions over the right to freedom of speech, freedom of organisation and peaceful protest. There is a distinction, albeit fine, between those who merely support the overthrow of a state and those who want to do so by the use of violence.
Mansfield does not want to see any extension of the existing conspiracy laws, but he acknowledges that there is a loophole in the current law because there are no provisions to cover those who conspire to commit terrorist acts abroad.
There is, of course, some support for the government's proposals. SDLP councillor and lawyer Alex Atwood supports the plans in principle, and points out that the measures are being implemented on an all-Ireland basis.
Politically, it would have been very difficult for Blair not to act, given the willingness of the Republic of Ireland to introduce similar reforms. But there is great trepidation among lawyers over the potential for civil liberties infringements and future miscarriages of justice.
Martin O'Brian, spokesman for the Belfast civil liberties group, the Committee on the Administration of Justice, says: "There is no evidence to suggest that restrictions on the right to remain silent or the creation of new offences have been particularly effective in reducing the level of paramilitary violence.
"Indeed our experience has been that the use of emergency powers has helped perpetuate rather than resolve the conflict."
Patrick Fahy says he has never before witnessed such an outpouring of public hostility as there has been against the perpetrators of the Omagh bomb, the Real IRA.
But he argues that, in itself, this shows just how far the peace process has moved.
"Public opinion is the biggest weapon against terrorism and may have already dealt a mortal blow to those opposed to the furthering of peace in Northern Ireland," he says.
The fear among many lawyers is that, with the war against terrorism almost won, the new measures being planned by the government could derail the peace process.