“Gerry Adams Release Embarrassing for PSNI.”

The plot reveals itself as the farce it was always destined to be.

The plot thickens!

It depends.

In the circumstances Bell would be a competent and compellable witness for the prosecution against Adams (see article 31 of the Criminal Evidence (Northern Ireland) Order 1999), and would have no right to refuse to answer questions.

There is however a rule of practice (but not of law!) that the prosecution should not in these circumstances be calling Bell as a witness, even if he were willing to testify, unless they have undertaken to discontinue the proceedings against Bell. It is difficult to see how introduction of hearsay statements could be permitted as an alternative in circumstances where an available and willing witness is not supposed to be called.

If Bell, having been summoned, did refuse to give evidence out of fear for some cause acceptable to the court then it is still necessary for the court to give leave for the introduction of the tapes and the court must consider the factors set out in article 20(4). Also the overall fairness of the proceedings must be borne in mind, and otherwise admissible evidence can be excluded by various routes if its admission would make the proceedings unfair.

R v Horncastle [2009] EWCA Crim 964 discusses at length the interplay between the identical English statutory rules on hearsay and the ECHR article 6 right to a fair trial in light of the decision of European Court of Human Rights in Al-Khawaja v United Kingdom ((BAILII)) that there had been a breach of article 6 where convictions “had been based to a sole or decisive degree on the statements [by identified unavailable witnesses] which the appellants had had no opportunity of challenging”.

All of this assumes that “Z” can be identified to the court’s satisfaction, whether or not he proves to be Bell; if not the requirement of article 20(1)(b) is not satisfied and the tapes are not admissible under article 20.

Whether or not you believe this to be a political policing act there is certainly a huge PR fight back going on and the FT have done a good job of analysis on this aspect of things.

P Smith, thank you for the pointer to the Criminal Justice (Evidence) Northern Ireland Order 2004. I’d just like to say: yikes! Article 20, as I read it, is extremely liberal and would certainly be unconstitutional in the United States in criminal cases in light of the Confrontation Clause (“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …”

Assuming that “Z” is in fact Ivor Bell, I wonder: assuming (as I do, but in light of what you’ve just explained maybe I shouldn’t!) that Bell has a right against self-incrimination that he could invoke to avoid testifying in any trial of Adams, would his out-of-court statement come within the “fear” prong of article 20?

The Northern Irish law on admissibility of hearsay evidence other than confessions is to be found in Part III of the Criminal Justice (Evidence) Northern Ireland Order 2004, and attention is drawn to article 20 (cases where a witness is not available, which Belfast Project interviewees may well not be).