By Jamie Bryson
On Monday (5 July 2021) a remarkable judgment was issued in Belfast’s High Court. When I say ‘remarkable’, it was not so for its wider significance, but rather because it illuminated how an infectious culture of both deference to unsubstantiated claims of the PSNI, and associated political considerations, have come to pervade throughout our criminal justice system at the highest level.
Mr Stephen Matthews, a loyalist from East Belfast, was represented by Northern Ireland’s former Attorney General John Larkin QC in making an application to have his (extremely draconian) bail conditions varied to allow him to return to his family home.
I need not dilate on the facts of the substantive case here; I have written about it many times and highlighted, in John Larkin QC’s words before a previous High Court hearing, the “doctrinally and evidentially flawed” nature of the charges of unlawful assembly (dug up from the burial grounds of the common law) and affray by a show of force. It appears trite to point out, and indeed obvious to anyone other than the PSNI, that the essential ingredients of neither of those offences are present.
However, returning to the bail variation application heard before Mr Justice Horner. I should say of course that Mr Justice Horner is one of our finest judges, has a reputation for diligently and carefully considering each case with fairness and it really is a shame that he is not our new Lord Chief Justice.
Notwithstanding that context, in this instance I feel compelled to argue that Mr Justice Horner fell into a grave error.
In submissions the PPS, who rather than acting as an independent prosecution service appear to simply act as advocates for the PSNI, raised a number of legally flawed points. The first error in the submissions of Crown Counsel was to approach the situation on the basis that it was for Mr Matthews to show that the conditions were disproportionate, rather than adopting the proper approach of it being for the Crown to show why they are proportionate. This ‘back to front’ approach has been a feature of the ‘Pitt Park’ case from the outset. It is an elementary proposition- which the PSNI have shredded- that bail conditions are to manage any real and genuine risks; they are not as a punishment given that the accused benefits from the presumption of innocence.
It would be neither fair, reasonable, nor appropriate to open within the text of this article the family circumstances which engaged the Article 8 Rights, including the rights of a child, but suffice to say it was not only illogical but wholly absurd to hear Crown Counsel try to argue that the Article 8 ECHR rights were not engaged. Quite properly Mr Justice Horner accepted that Article 8 was engaged.
Crown Counsel then- without a consideration of the basis for the PSNI claims being carried out by the independent PPS- regurgitated PSNI objections based on “tensions in the area”. This bare, unparticularised and entirely contrived claim has no evidential basis. We see this repeated in bail hearings all the time. The PSNI advance wild supposition, and at times allegations contrived in bad faith. It is a blank cheque for the PSNI to tilt the balance in bail hearings in their favour, often for purely political reasons. The Courts show remarkable deference to the PSNI and appear to work from the position that the PSNI act with integrity and honesty; my experience is that they do anything but.
We need not look far in the present case to find the political motivations. In a case which on the Crown’s own case has absolutely nothing- zero, zilch- to do with Brexit, the NI Protocol or the marching season, the PSNI’s objections to a family- the accused member of which who should be entitled to the presumption of innocence- living in their own home is based around tensions flowing from “Brexit, the NI Protocol and the marching season”.
It does not take much foresight to see that placing Mr Matthews in a situation whereby issues entirely and completely out with his control are determining factors in the application of his basic Human Rights, is entirely illogical and offends the basic principles of fairness. If, for example, someone hostile to Mr Matthews wished to tilt the balance against him and his family, then- walking through the door the PSNI willingly hold open- all they would need to do is engage in some contrived and malicious tension raising behaviour, which would in turn allow the PSNI to say to the court ‘oh there is tension’. This was evident prior to initial bail applications when false flag graffiti appeared, seeking to give the appearance of tensions rising. These actions, as if by magic, just so happened to assist the PSNI in arguing against bail.
Now, if the Court refused to consider these irrelevant considerations, then this snare would be defective and of no force or effect. But that is not what happened in Mr Justice Horner’s Court. The sole determining factor in refusing the application was “ongoing tensions around Brexit, the NI Protocol and marching season”. As pointed out, not only do none of these issues have any connection with the charges Mr Matthew’s faces, but moreover they are entirely beyond his control.
That the PSNI would insert such political issues into this case, and subsequently that the Court would make them a determining factor, provides clear and obvious evidence of the politicisation of the criminal justice system, and self evidently the inherently political motivation underpinning this entire case.
Mr Justice Horner is, in my view, wrong to take such political issues into account. Notwithstanding many of the PSNI claims are entirely contrived in bad faith, the Court should not in any event have made them a determining factor. How is it proposed any defendant could regulate their behaviour appropriately with the aim of securing more proportionate conditions, when the actions of others- and the political atmosphere as a whole- which is outside their control, is the determining factor. That cannot be right, and it is plainly the antithesis of fairness.
There is a growing feeling within the Unionist and Loyalist community that the entire policing and justice system is balanced against us. I agree with this feeling and believe there is strong evidence to support it. It is not held by a wide spectrum of the Unionist and Loyalist community for no reason. Unlike many of the allegations put forward by the PSNI, it is not contrived out of thin air.
In a panel discussion just over a year ago Lord Chief Justice Sir Declan Morgan remarked that the judiciary was keen to engage with all sections of the community to instill confidence in the fairness and impartiality of the Courts. There can be no doubt there is significant judicial and legal engagement with the nationalist community, but there is no equivalent engagement with the Unionist and Loyalist community.
Given the growing feeling of disengagement from the justice system, perhaps the incoming Lord Chief Justice will devote some time and resources to engaging on a broader basis, and setting a tone whereby judicial deference to the PSNI and political considerations is no longer the norm.