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"Terrorism and the Rule of Law"

9 March 2017, Sir Anthony Campbell PC

[1] I met Donald Macfayden here in Edinburgh when we were both in practice at the Bar and — though our meetings were brief — I can readily understand why he was so admired and held in such high regard both in Scotland and beyond. I am honoured to have been asked by the trustees to deliver this year’s lecture in his memory.

[2] “The law like an eagle in the sky, is only stable when it moves”.1 So said Aharon Barak, the former President of the Supreme Court of Israel. At no time is this stability more necessary than when society is under different forms of attack from terrorism. Then a balance has to be struck between ensuring, so far as possible, that members of the public are kept safe as they go about their daily lives and that the rights of the individual are not unnecessarily restricted.

[3] It was in January 1881 that the first bomb made with dynamite was planted in Britain to further a political cause. It exploded at a military barracks in Salford. A seven-year-old boy was killed and many other people were injured. The device was planted by the Irish Republican Brotherhood2 and marked the beginning of terrorism as we know it today. More bombs were planted at the Mansion House and on the Underground in London, and also in Liverpool and elsewhere. Scotland did not escape either and in Glasgow, in 1883, bombs were exploded by the Ribbon Society,3 an off shoot of the Irish Republican Brotherhood, at the Tradeston Gas Works in Kilbirnie Street and the Possil Road Aqueduct on the Forth and Clyde canal, injuring 14 people.4 The recent invention of dynamite compound by Alfred Nobel (patented in 1867),5 allowed such a lethal device to be contained in a small package and this proved to be ideal for the nefarious purposes of the terrorist.

[4] In April 1883 in response to this new and continuing source of danger to public safety, the Government introduced the Explosive Substances Bill.6 Prior to this the only legislation concerning explosives was directed towards the negligent possession of a dangerous commodity and not to possession with criminal intent. Under that Act7 every private person was permitted to have in his possession 15 lbs of dynamite and 30 lbs of gunpowder. So, as was pointed out in Parliament, ten people living in a lodging house could lawfully possess 150 lbs. of dynamite (sufficient it was said to fire a torpedo) together with 300 lbs. of gunpowder.8

[5] Introducing the Bill of 1883, the Home Secretary, Sir William Harcourt, went out of his way to stress that the new legislation was not being put before Parliament in the spirit of panic.9 It passed through all stages in Parliament in a single day, a record at that time, which seems to indicate at least a degree of urgency.

[6] During the course of the debate the Home Secretary declined to agree to amend clause 4 of the Bill (offence of making or possession of explosive under suspicious circumstances) as he said it had been very carefully considered, and added that he had spent the best part of three days over it.10 Since he had previously been Whewell Professor of International Law at Cambridge11 this made Sir William better qualified than many Home Secretaries to be involved in the drafting of a Bill.

[7] Harcourt was strongly opposed to any suggestion that the measure should be treated as being a temporary one. He said that it ought to be permanently maintained and added:

“to deal with it otherwise than as the permanent law of the land would be … to weaken its authority. You would induce people to think it had been passed in a panic with exceptional severity”.

12 That the Explosive Substances Act 188313 remains on the statute book to this day is a tribute to his draughtsmanship and shows that there is no reason why legislation of this nature should not be permanent.


[8] Since then governments do not appear to have been unduly concerned about giving the impression of panic when introducing legislation to deal with terrorism.

[9] In 1939 Parliament passed the Prevention of Violence (Temporary Provisions) Act14 following some 127 outrages, including one in which Hammersmith Bridge was only saved from destruction at the last minute.15 The Home Secretary, Sir Samuel Hoare, told the House that the proposed legislation was “a temporary Measure to meet a passing emergency”.16 He added that they had expressly limited the duration of the Bill to a period of two years.17 Nevertheless, it was 1953 before the Act was allowed to expire and 1973 before it was repealed.

[10] After the Birmingham Pub bombings in November 1974, when 21 people were killed and 182 injured,18 the Home Secretary, Roy Jenkins, when introducing the Prevention of Terrorism (Temporary Provisions) Bill, referred to the powers in the Bill as “unprecedented in peacetime”19 and went on to say:

“I do not think that anyone would wish these exceptional powers to remain in force a moment longer than is necessary.”

20 The 1974 Act21 was to remain in force for six months unless renewed by Order. It was continued until 1976 when it was followed by more temporary legislation22 with the result that from 1974 — until the Terrorism Act 200023 was passed — there was a series of what were described as “Temporary” provisions to deal with terrorism.24


[11] One problem with this type of legislation is that it is not always clear when the danger has passed and so before long the use of the word “Temporary”, as Lord Jellicoe said in 1983, “rings increasingly hollow as the years go by.”25 Another is that the police and other security services applying the legislation become accustomed to it and there is unlikely to be any pressure from that influential quarter for change; especially if their powers are likely to be reduced or removed. As for Sir William Harcourt’s concern that temporary legislation could create an impression of panic, in later years the Government may have been anxious to demonstrate to the public that their reaction to the latest atrocity is both immediate and robust.

[12] In 1973 the first bomb in the new Provisional IRA26 campaign on the mainland exploded in London at the Old Bailey, injuring 200 people.27 It is interesting to note that when the Prevention of Terrorism Bill was before Parliament in 1974,28 no mention was made to the fact that the Home Office had prepared the Bill a year earlier — and had been holding it in readiness — following the Old Bailey bomb.29 It is right that such a bill should have been carefully considered over time, but should it have been treated as a temporary measure or was the use of this description designed to make it more palatable? As one commentator has remarked about the later 1989 Act:30

“when one sets the Act’s provisions side-by-side with those of the ‘ordinary law’ the necessity for such far-reaching ‘emergency’ laws is not immediately apparent.”31

He went on to observe that:

“One is tempted to conclude that the Act is there for political as much as security reasons — so that the Government can be seen to be doing something.”32

This is understandable because after a terrorist atrocity there is pressure on the police to make arrests and on the government to be seen to be taking control of the situation.


[13] Since the passing of the Prevention of Terrorism Act 200533 there has been less fast-tracking of terrorist legislation and therefore more time is given for closer scrutiny by Parliament. This improvement has been remarked upon by the Joint Committee on Human Rights appointed by the House of Lords and the House of Commons.34 The work of this committee includes consideration of counter-terrorist legislation and provides another safeguard against excessive powers being given and retained. There are also the annual reports and recommendations of the Independent Reviewer of Terrorism Legislation (IRTL)35 which go to ministers and are laid before Parliament. These are all important as they ensure that — though the legislation may be permanent — it is kept under continuous scrutiny.

[14] The opinion of Sir William Harcourt, that legislation of this kind should be permanent, was shared by Lord Lloyd of Berwick in the 1996 Report of his Inquiry into Legislation against Terrorism.36 In the Report he said that there would be a continuing need for permanent UK-wide legislation.37 His recommendation was accepted and the Terrorism Act 200038 was enacted. It was permanent with the exception of Pt VII dealing with Northern Ireland.39 The Government had made a commitment to make a return to normal security arrangements there as early as possible, consistent with the level of terrorist threat. Therefore, the Pt VII provisions were temporary in nature and subject to annual renewal.40 Subject to this exception, we appear at last to have seen an end to temporary provisions to deal with terrorism.

[15] In the United Kingdom terrorism is regarded as a criminal offence to be treated in accordance with the law. As the object of the terrorist is to intimidate, it is not surprising that witnesses and, to a lesser extent, jurors may be fearful. There is also the difficulty when dealing with this problem that a decision as to the guilt or innocence of an accused made by an ordinary court of law, has to be reached in accordance with — at the very least — the minimum requirements for a criminal trial.

[16] This problem had to be faced in Northern Ireland in 1972 when a commission chaired by Lord Diplock was asked to consider legal procedures to deal with terrorist activities.41 The Commission found that jurors living in certain, so-called “Catholic”, areas were at risk of intimidation when a Republican terrorist was on trial. Therefore, the prosecution would pick jurors from a different area where they were less vulnerable to intimidation. However, the Report noted that: “Because of the way in which ‘Catholics’ and ‘Protestants’ are concentrated geographically this results in [the jury] being composed predominantly of ‘Protestants’, of whom the great majority have Loyalist sympathies.”42 Moreover, “the converse might apply to the trial of Loyalist terrorists if the threat of Loyalist intimidation were to become widespread.”43 The recommendation that the mode of trial for certain offences should be by a High Court or County Court Judge sitting without a jury44 was accepted and enacted in the Northern Ireland (Emergency Provisions) Act 1973.45

[17] The trial judge has to give reasons, for his decision, and there is a right of appeal without leave being required.46 In practice, when hearing an appeal the Court of Appeal does not confine itself to points of law but re-examines the evidence upon which the conviction was based.

[18] In much more restricted circumstances non-jury trials continue to be held under the Justice and Security (Northern Ireland) Act 2007.47 Every two years the relevant sections are renewed by the Secretary of State.48 Unless renewed they will expire at the end of July this year.49 In a written answer the Secretary of State said that less than two per cent of trials in the Crown Court are now heard without a jury; in comparison to the 1980s when the number was of the order of 329 per year.50

[19] There has been much written by academics and others about what has become generally known as “Diplock trials”.51 Although Lord Diplock chaired the Commission52 it is often overlooked that among the other members was the distinguished academic Professor ARN Cross.53 In 1975, another committee, chaired by Lord Gardiner, a former Lord Chancellor and noted defender of human rights, said that trial by jury should be restored as soon as this became possible,54 but concluded that the right to a fair trial had been respected and maintained and that the administration of justice had not suffered.55

[20] As I have presided over many criminal trials when sitting without a jury, my observations on the subject cannot be regarded as being objective. With that warning I venture to make a few general observations. Firstly, it is not always appreciated that, in Northern Ireland, members of the security forces and prison officers are also tried by a judge sitting without a jury when charged with a scheduled offence.56 Secondly, as a judge sitting without a jury has to give reasons for his decision, it is easier to succeed on appeal than from the verdict of a jury (that does not give reasons). Thirdly, from my experience in another jurisdiction, where an accused can elect to be tried by a judge sitting without a jury, it is noticeable how in many cases — especially where identification evidence is crucial — the accused often exercises the option to be tried by a judge sitting alone.

[21] As far as possible the non-jury trial procedures follow those of a trial with a jury. For example, in 1978 a blast incendiary device was exploded at a hotel on the outskirts of Belfast and 12 people were burned to death.57 During the trial within a trial, or voire dire58 — to decide on the admissibility of a statement by the accused, Edward Manning Brophy — he admitted that he had been a member of the IRA. Subsequently, he did not give any evidence during the substantive trial. However, when the substantive trial resumed, evidence was given that during the voire dire he had admitted, under oath, that he had been a member of the IRA; consequently, he was convicted of membership of the IRA — a proscribed organisation.59 On appeal, the Court did not agree with the trial judge’s view — that it would be unjust for a judge in a non-jury trial not to act on evidence freely given and not relevant to the issue at the voire dire — and quashed the conviction. The House of Lords, agreeing with the Court of Appeal, also found the evidence was inadmissible.60 Following this, where a confession is admitted into evidence after a voire dire, the trial judge must recuse himself before the trial continues in front of another judge. This is on the basis that the judge, who is also the jury, has heard evidence that would not have been before the jury in a jury-trial. Another example of the usual procedure having to be modified, is when hearing pre-trial applications for disclosure. Instead of the trial judge dealing with these applications, these are heard by another judge. If during the trial there is a development, regarding disclosure, that may require further consideration, the parties may return the matter to the pre-trial disclosure judge. The reason for this, again, is that the jury would not have seen the material (that was not required to be disclosed), which may be prejudicial to the trial proceedings.

[22] If terrorism is to be treated as a criminal offence and, therefore, dealt with by the criminal courts, obviously convictions may only follow if there is admissible evidence. In 1971, it was accepted, by the European Court of Human Rights, that there existed in Northern Ireland a public emergency threatening the life of the nation; and that a notice of derogation, by the devolved government, from the European Convention on Human Rights61 satisfied Art 15(1) of the Convention.62 On 9 August 1971 the devolved government exercised the Draconian powers given to it under the Civil Authorities (Special Powers) Act (Northern Ireland) 192263 to order the arrest and detention of some 340 people.64

[23] Of these, 14 men — 12 in August 1971 and a further two in October of that year — were subjected to (what is often described as) “interrogation in depth”; ie, wall standing, hooding, white noise, sleep deprivation and a diet of only bread and water.65 These techniques had been used in a number of places in the past, such as Palestine and Aden. The detainee, dressed in a boiler suit, was required to stand in a fixed position for a lengthy period of time, causing severe disorientation and distress. It was designed to make the person more pliable during interrogation. When reports of this treatment appeared in the press a commission was appointed under Sir Edmund Compton to inquire into allegations of physical brutality.66 It found that there had been ill-treatment but no physical brutality.67 This was a finding too far for the Prime Minister, Mr Heath, who in a memorandum said of the Report that: "It seems to me to be one of the most unbalanced, ill-judged reports I have ever read."68

[24] A Committee of Privy Counsellors under Lord Parker of Waddington was then appointed to consider authorised procedures for the interrogation of persons suspected of terrorism.69 Although the Committee stated that its remit was to inquire quite generally into the interrogation of persons suspected of terrorism in the future, ie, not specifically in connection with Northern Ireland,70 it carried considerable weight when the events of 1971 were being examined. The majority considered that although the procedures could amount to criminal assaults — subject to the intensity with which they were employed and certain safeguards — they could be used in accordance with the highest standards of our society. These safeguards included the presence of both an army officer and a doctor with psychiatric training.71 The Committee recorded that, as a result of the two operations, of August and October 1971, important new information had been obtained — such as the identification of 700 members of both IRA factions and their positions in the organisation. Details were also discovered of possible IRA operations and it was made possible to identify the individuals responsible for 85 incidents that had been hitherto unexplained.72 It was said, except in a few cases, that the information quickly proved to be correct. The majority concluded: “There is no doubt that information obtained by these two operations directly and indirectly was responsible for the saving of lives of innocent citizens”.73 Lord Gardiner, a member of the Committee, did not agree and in a minority report he said:

“The blame for this sorry story, if blame there be, must lie with those who, many years ago, decided that in emergency conditions in colonial type situations we should abandon our legal, well tried and highly successful wartime interrogation methods and replace them by procedures which were secret, illegal, not morally justifiable and alien to the traditions of what I believe still to be the greatest democracy in the world.”

74 The United Kingdom Government accepted Lord Gardiner’s minority report and paid compensation to the men who had been interrogated in this way.75


[25] In Ireland v UK, the European Commission of Human Rights held that the techniques that were used amounted to torture.76 However, when the Irish Government referred this decision to the European Court of Human Rights, the Court differed from the Commission and held that it was not torture, but degrading and inhuman treatment.77 This case may (even now) not be over, as the Irish Government is currently seeking to have it reopened on the ground that correspondence has been found — in which a British Government minister refers to the use of the techniques as torture — which, the Irish Government claims was not disclosed at the original hearings.78 To say that valuable information was obtained, whether as a result of torture or I would suggest, degrading or inhuman treatment, is not the issue for, as Lord Rodger of Earlsferry said in A v Home Secretary (No 2):

“Information obtained by torture may be unreliable. But all too often it will be reliable and of value to the torturer and his masters. That is why torturers ply their trade. Sadly, the Gestapo rolled up resistance networks and wiped out their members on the basis of information extracted under torture. Hence operatives sent to occupied countries were given suicide pills to prevent them from succumbing to torture and revealing valuable information about their mission and their contacts. In short the torturer is abhorred as a hostis humani generis not because the information he produces may be unreliable but because of the barbaric means he uses to extract it.”79


[26] It has to be said that, it is now generally accepted that, the arrests on 9 August 197180 alienated a considerable section of the population as — due to the lack of intelligence about the IRA — a number of those arrested were innocent and were known in their community to be of a non-violent disposition. Growing resentment increased when reports of the method of interrogation that was employed appeared in the media. All this only led to increased support for the terrorists and an increase in the violence. It demonstrates the importance, however grave the situation may be, of adhering to the rule of law.

[27] In Ireland in particular, few would regard those involved in the Easter Rising of 191681 as being terrorists. However one choses to define it, the reaction of the Government to the uprising serves as yet another example of the importance of observing the rule of law.

[28] A few days after the Easter Rising,82 General Sir John Maxwell83 was sent to take command in Ireland. Mr Asquith84 sent with him 2nd Lieutenant Alfred Bucknill (later to become Lord Justice Bucknill)85 to ensure that everything was done legally.86 Bucknill found that the Defence of the Realm Act87 did not provide for armed rebellion and decided to charge the rebels with taking “part in an armed rebellion and in waging war against His Majesty the King … with the intention and for the purpose of assisting the enemy”.88 Martial law was proclaimed — suspending the right of a British subject to a trial in a civil court by a jury and making certain offences triable by court martial.

[29] General Maxwell decided that it was not practicable to have the formality of a general court martial so he convened field general courts martial,89 presided over by three commissioned officers. He decided that, for reasons of public safety, the trials should be held without the press or public being present. The accused were not allowed representation — although they were permitted to bring a friend, who was allowed to advise them, but not to address the court. Following trial in this way, 15 of the rebels were executed at dawn by firing squad.90

[30]. Mr Asquith warned General Maxwell that “anything like a large number of executions would … sow the seeds of lasting trouble in Ireland.”91 He was correct because the rebels, who had at the outset been seen by many as villains, soon became heroes. In the next election Sinn Fein92 swept to power with a manifesto for Ireland to become a republic.

[31] It is easy to look at these events out of context. The First World War was still raging and this was a most unhelpful diversion with extra troops, badly needed elsewhere, having to be brought in. Moreover, as the Royal Commission on the Rebellion in Ireland, under Lord Hardinge of Pensehurst,93 concluded:

“the main cause of the rebellion appears to be that lawlessness was allowed to grow up unchecked and that Ireland for several years past has been administered on the principle that it is safer and more expedient to leave law in abeyance if collision with any faction of the Irish people could there by be avoided.”94

The Commission emphasised the, “cardinal rule of government which demands that the enforcement of the law and preservation of order should always be independent of political expediency”95


[32] As for the decision to hold the trials in secret, this was possibly the worst mistake that was made. A unionist journalist — in trying to explain to a friend how many people felt — wrote, possibly rather too graphically, of “a stream of blood dripping under a closed door”96

[33] The most effective means of defending the public from terrorism is likely to be intelligence and, compared to the 1970s, there are now much more sophisticated means of obtaining information. The paid informer is often himself engaged in terrorist activity; frequently he has a criminal record and — as the so called “supergrass” trials97 showed — when giving evidence and under cross-examination, the informer is usually exposed as being unreliable, as he attempts both to recollect events long since past and to present himself as having played only a minor role. Once exposed in public as an informer he is no longer of any value to the police. The sophisticated methods used for recording conversations, tracking the movements of individuals and other means of detecting terrorist activity cannot be revealed in court — as terrorist organisations are always anxious to discover the various methods being used, so that they may take avoiding action. Information obtained through intelligence is not, therefore, always capable of being used in a criminal court.

[34] In an ideal world, the intelligence gathered by these methods offers the authorities the opportunity to arrest the terrorist in the act of being in possession of a firearm or explosives. What if the information reveals that the person is highly dangerous and there is insufficient evidence to be presented in court? Lord Gardiner’s committee in their Report in 1975 observed:

“While the liberty of the subject is a human right to be preserved under all possible conditions, it is not, and cannot be, an absolute right because one man may use his liberty to take away the liberty of another and must be restrained from doing so. Where freedoms conflict, the state has a duty to protect those in need of protection.”98


[35] The United Kingdom ratified the European Convention on Human Rights in 195199 and gave it domestic effect by the Human Rights Act 1998.100 A person’s right to liberty and security under Art 5 of the Convention101 ensures that no one is deprived of his liberty in an arbitrary fashion.102 The effect of this is that detention is not an option unless the Government lodges with the Council of Europe103 a notice of derogation under Art 15 of the Convention.104 It may only do so in time of war ,or other public emergency threatening the life of the nation, and only to the extent strictly required by the exigencies of the situation. The measures taken must be proportionate to the need for them and of a temporary nature. For example, the extended powers of arrest and detention in the Anti-terrorism, Crime and Security Act 2001,105 passed by Parliament in response to the crimes committed in the United States on 11 September 2001,106 required a notice of derogation that ceased to operate in 2005 when it was withdrawn.107 It is therefore only in the gravest circumstances that detention, which is unknown to the common law, may be introduced. It is an executive and not a judicial process and quite separate from the normal criminal procedure. When the Government introduced a procedure for detention in Northern Ireland in the 1970s108 most of the Commissioners, to whom the cases for detention beyond 28 days were referred, were Sheriffs, English Circuit Judges or part–time Recorders who sat at the Maze Prison.109 This was important as it helped to make it clear that it was a procedure unconnected with the normal judicial process.

[36] In the 1970s firearms experts were called upon to give evidence, based on striations left by rifling, to identify the weapon from which a bullet had been fired. Furthermore, chemists developed the ability to identify traces of components used in making improvised explosive devices on a suspect’s clothing. Now, it is over 30 years since DNA was used for the first time to convict a murderer.110 We have seen, and will continue to see, such scientific advances which will prove invaluable in providing evidence that can be presented in court and will allow the ordinary law to be applied.

[37] I mentioned earlier the importance of intelligence and, as citizens, I believe that we have to be prepared to accept a degree of intrusion into our privacy, if terrorist activity is to be prevented. I acknowledge the importance of the right under Art 8(2) to respect for private and family life.111 However, it is not an absolute right and it may have to give way to restrictions aimed at protecting national security, that are in accordance with the law and necessary in a democratic society.

[38] An example of where such an invasion of privacy has been found to be unjustified is in Secretary of State for the Home Department v Tom Watson and Others,112 a recent decision of the Grand Chamber of the Court of Justice of the European Union (Grand Chamber).113 The Data Retention and Investigatory Powers Act 2014 (DRIPA)114 gave the Home Secretary power to require providers of communications to retain certain types of data for a year.115 The data involved was not the content, but rather who made the communication and when and where they made it. If a person was identified as a terrorist, this power could be used to discover the identity of those with whom he had been in communication. Case studies contained in a report by the IRTL (David Anderson QC) of his Investigatory Powers Review from June 2015 show how these powers have been used to advantage in preventing attacks.116

[39] The Grand Chamber in Watson117 decided that DRIPA118 was incompatible with the EU Charter of Fundamental Rights119 and in it’s judgment went rather further than the case law of the European Court of Human Rights.120 In the judgment, the Grand Chamber said that DRIPA: “exceeds the limit of what is strictly necessary and cannot be considered justified, within a democratic society”.121 The case has now been referred back to the Court of Appeal in England. DRIPA has already expired, but the Investigatory Powers Act 2016 provides for powers in some respects even more extensive than those of DRIPA.122 Unlike decisions of the European Court of Human Rights — that will continue to bind the United Kingdom — those of the Court of Justice (CJEU) will, it is likely, only do so until such time as the United Kingdom leaves the European Union.

[40] In May last year, the BBC showed footage of drugs and mobile phones being dropped into a prison in England by an unmanned aerial vehicle or drone (as they are more commonly known).123 If Amazon claims to be able to deliver packages weighing up to 5 lbs by drone,124 how easy will it be for a terrorist to deliver an explosive device or drop chemicals on a crowded football stadium by the same means? The restrictions imposed by the Air Navigation Order 2016125 provide very limited protection against such an event, even though the Civil Aviation Authority successfully prosecuted a man who flew a drone over a BAE Systems nuclear submarine testing facility in Cumbria.126 In January of this year the Attorney General stated that — where there is an imminent terrorist threat by “non-state actors”— pre-emptive drone attacks by the RAF may be authorized in self-defence.127 The Government recently launched a consultation on the safe use of drones128 and no doubt we will learn in due course what steps are to be taken to prevent their misuse.

[41] Last year the (former) Director of GCHQ warned that terrorist groups, and ISIL129 in particular, were looking at the technological advantages to them of cyber-attacks on the nation’s infrastructure;130 one can only imagine what would happen if air traffic control, power stations and hospitals were the subject of an attack.

[42] We live in an ever-changing world and — just as the law had to respond to the discovery of dynamite compound in the past — so today, if society is to be protected from terrorism, it must be ready to respond to the danger of misuse that accompanies many of the advances being made in science, technology and other fields. If it is to provide stability, the law must continue to move with the times.



*Sir Anthony Campbell PC, is a former Lord Justice of Appeal of Northern Ireland and was Chairman of The Fingerprint Inquiry, Scotland (2011) (Information about the inquiry can be accessed at: (accessed 14 March 2017) and The Inquiry into Crown Decision-Making in the Case of the Murder of Surjit Singh Chhokar, Scotland (2001). The report is available at: (accessed 14 March 2017).

1 Barak, A, “Some Reflections on the Israeli Legal System and Its Judiciary”, Electronic Journal of Comparative Law, (2002), Vol 6.1, Pt 8 Judiciary, (6). [online] Article available at: (accessed 14 March 2017). See also, “The Role of a Supreme Court in a Democracy”, (2001) 53 Hastings L.J., (2001-2002), 1205, at 1215. Available at: (accessed 14 March 2017).

2 The Irish Republican Brotherhood (IRB) or Fenian movement, was a small, secret, revolutionary body, committed to the use of force to establish an independent Irish Republic. See further, BBC, 2014, The Irish Republican Brotherhood (IRB). [online] Available at: (accessed 14 March 2017).

3 The Ribbon Society was principally an agrarian Catholic secret society; membership was denoted by the wearing of a green ribbon as a badge in a button-hole.

4 Collectively, these bombings formed part of the Fenian Dynamite (or Bombing) Campaign (1881–1885) by the Fenian Brotherhood, an Irish-American paramilitary organization. See, Whelehan, N, The Dynamiters: Irish Nationalism and Political Violence in the Wider World, 1867-1900, (Cambridge University Press, Cambridge, 2012), Chronology, 1867–1900, pp xiii–xiv. See further, Kenna, S, "The Fenian Dynamite Campaign and the Irish American Impetus for Dynamite Terror, 1881-1885."Inquiries Journal/Student Pulse 2011, Vol. 3 No.12. [online] Available at: (accessed 14 March 2017).

5 Alfred Nobel (1833-1896), Swedish chemist, inventor, engineer, entrepreneur and business man acquired 355 patents in total worldwide. See further, List of Alfred Nobel's Patents. [online] Available at: (accessed 14 March 2017).

6 See the Bill’s First Reading, Hansard, HC vol 277, col 1841–1864. Available at: (accessed 14 March 2017).

7 Explosives Act 1875, 38 & 39 Vict cap 17.

8 Sir William Harcourt, supra, note 6 at col 1843. Available at: (accessed 14 March 2017).

9 Ibid, at col 1842. Available at (accessed 14 March 2017).

10 Ibid, at col 1855–1858. Available at: (accessed 14 March 2017).

11 The professorship was established, by William Whewell in 1868, with a view to devising, “such measures as may tend to diminish the causes of war and finally to extinguish war between nations”; Maine, HS, The Whewell Lectures, International Law, A Series of Lectures Delivered before the University of Cambridge, 1887 (John Murray, London, 1888), p 1. Available at: (accessed 14 March 2017).

12 supra, note 6 at col 1849–1850. Available at: (accessed 14 March 2017).

13 Explosive Substances Act 1883 46 & 47 Vict cap 3.

14 Prevention of Violence (Temporary Provisions) Act 1939 2 & 3 Geo 6 cap 50 [1939 Act].

15 These outrages were executed as part of the “S” Plan (or Sabotage Campaign) 1939–1940; an Irish Republican Army (IRA) campaign to paralyze all official activity in England. See further, Hansard, HC vol 350 at col 1048–1050, available at: (accessed 14 March 2017); and, on the IRA generally, see further, Encyclopaedia Britannica, Paul Arthur, P and Cowell-Meyers, K, 24 November 2015, Irish Republican Army (IRA), Irish Military Organization. [online] Available at: (accessed 14 March 2017).

17 Ibid.

18 The Birmingham Pub Bombings took place on 21 November 1974 after the Provisional IRA (see infra, note 26) planted bombs in two Birmingham pubs; the Mulberry Bush and the Tavern in the Town. See further: BBC, 1 June 2016, Birmingham pub bombings inquests to be reopened. [online] Available at: (accessed 14 March 2017).

19 Hansard, HC vol 882, col 35. Available at: (accessed 14 March 2017).

20 Hansard, HC vol 882, col 642. Available at: (accessed 14 March 2017).

21 Prevention of Terrorism (Temporary Provisions) Act 1974 cap 56 [1974 Act].

22 Prevention of Terrorism (Temporary Provisions) Act 1976 cap 8.

23 Terrorism Act 2000 cap 11 [2000 Act].

24 ie, Prevention of Terrorism (Temporary Provisions) Act 1984 cap 8, Prevention of Terrorism (Temporary Provisions) Act 1989 cap 4 [1989 Act] and numerous consequential Orders and Regulations.

25 Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1976 by the Rt. Hon. Earl Jellicoe, [Jellicoe Report] Cmnd 8803 (1983) (HMSO, London, 1983), p 7, para 18.

26 The Provisional Irish Republican Army (IRA or PIRA) — the main Irish Republican paramilitary organization — emerged in 1969 and sought to remove Northern Ireland from the United Kingdom. See further, BBC, Provisional IRA: war, ceasefire, endgame? [online] Available at: (accessed 14 March 2017).

27 See further, the Guardian, Harvey, P and Hoggart, S, 9 March 1973, Ten held after Provo bombs blast London. Available at: (accessed 14 March 2017).

28 Hansard, HC vol 882, col 634–752. Available at: (accessed 14 March 2017).

29 House of Lords Select Committee on the Constitution, Constitution Committee 15th Report. Fast-track Legislation: Constitutional Implications and Safeguards. Volume II: Evidence, HL 116-II, (2009) (TSO, London, 2009) [Constitution Committee 15th Report] Written Evidence, Memorandum by Professor Clive Walker, School of Law, University of Leeds, p 178, at para 8. Available at: (accessed 14 March 2017).

30 1989 Act, supra, note 24.

31 Dickson, B. "The Prevention of Terrorism (Temporary Provisions) Act 1989." (1989) NILQ Vol. 40(3) 250, at 267. See also, Constitution Committee 15th Report (supra, note 29), Memorandum by Brice Dickson, Professor of International and Comparative Law, p 84. Available at: (accessed 14 March 2017).

32 Ibid, Dickson, (1989) NILQ Vol. 40(3) 250, at 267.

33 Prevention of Terrorism Act 2005 cap 2 [2005 Act].

34 The Joint Committee on Human Rights is a permanent Joint Select Committee consisting of members from both Houses who meet and work as one committee. See further, Joint Committee on Human Rights [online]. Available at: (accessed 14 March 2017).

35 The IRTL post, currently held by Max Hill QC, is completely independent from government. See further: (accessed 14 March 2017) and, on the history of the post see, Anderson, D, “The Independent Review of UK Terrorism Law”, New Journal of European Criminal Law, (2014) Vol. 5, Issue 4, 432. Available at: (accessed 14 March 2017).

36 Inquiry into Legislation against Terrorism by the Rt. Hon. Lord Lloyd of Berwick, Volume One, Cm 3420 (1996) (HMSO, London, 1996) [Berwick Report].

37 Ibid, p 24, para 5.15.

38 2000 Act, supra, note 23.

39 Ibid, Introduction, “An Act to make provision about terrorism; and to make temporary provision for Northern Ireland about the prosecution and punishment of certain offences, the preservation of peace and the maintenance of order”.

40 Ibid, Part VII, Northern Ireland, Duration of Part VII, s 112.

41 Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland by Lord Diplock, Cmnd 5185 (1972) (HMSO, London, 1972) [Diplock Report]. See further, Jackson, JD, Quinn, K and O'Malley, T "The Jury System in Contemporary Ireland: In the Shadow of a Troubled Past (The Common Law Jury)", Law and Contemporary Problems (1999) Vol 62, No.2, 203, IV The Northern Ireland Jury and the “Troubles”, 218 ff. Available at: (accessed 14 March 2017).

42 Ibid, Diplock Report, p 17, para 36.

43 Ibid, Diplock Report. nb, In Northern Ireland (Ulster), a “Loyalist” is someone wishing to retain Ulster’s link with Britain. Whereas, a “Republican” is someone who believes that Northern Ireland should not be ruled by Britain, but should become part of the Republic of Ireland.

44 supra note 41, Diplock Report, p 3, para 7(g).

45 Northern Ireland (Emergency Provisions) Act 1973 cap 53 [1973 Act] (repealed). See now, Justice and Security (Northern Ireland) Act 2007 cap 6 [2007 Act].

46 Ibid, 1973 Act. See now, Ibid 2007 Act, s 5(6), (9).

47 Ibid, 2007 Act, s 1.

48 Ibid, 2007 Act, s 9(1). See also, eg, The Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2015 (SI 2015/1572) [2015 Order], art 2.

49 Ibid 2007 Act, s 9(1), and the 2015 Order. The effect of this Order is that the non-jury trial provisions will expire on 31st July 2017.

50 Rt Hon James Brokenshire MP, Secretary of State for Northern Ireland, Public Consultation: Non-Jury Trial Provisions in Northern Ireland: Written statement–HCWS258, 16 November 2016. Available at: (accessed 14 March 2017).

51 See eg, Jackson, J, and Doran, S, Judge without Jury: Diplock Trials in the Adversary System (Clarendon Press, Oxford, 1995) and, by the same authors, Independent, 12 September 1995, “Diplock courts: a model for British justice? Available at: (accessed 14 March 2017). See also, BBC, Coleman, C, 12 January 2010, The debate behind holding a criminal trial without jury. [online] Available at: (accessed 14 March 2017); and The Irish News, 30 December 2015, Howe ‘astounded' when Soviet counterpart raised case of IRA prisoners in the north. [online] Available at: (accessed 14 March 2017).

52 supra, at note 41, Diplock Report.

53 Professor Rupert Cross (1912–1980), who was completely blind from the age of 1, is best known for his seminal work, Cross on Evidence (1st ed, Butterworth, London, 1958). See further, Hart, HLA, Arthur Rupert Neale Cross, 1912-1980 (1985). [online] Available at: (accessed 14 March 2017).

54 Report of a Committee to consider, in the context of civil liberties and human rights, measures to deal with terrorism in Northern Ireland. Chairman: Lord Gardiner, Cmnd 5847 (1975) (HMSO, London, 1975) [Gardiner Report], Ch 2 Trial Procedures, p 10, para 26.

55 Ibid, at para 29.

56 Ibid, Scheduled Offences, paras 58–63. The current position is that an indictable offence is tried without a jury if the Director of Public Prosecutions issues a certificate, which he may do if certain conditions contained in the 2007 Act are met. See, 2007 Act (supra note 45), s 1.

57 ie, The La Mon House Hotel bombing. See further, Belfast Telegraph, Thornton, C, 17 February 1998, The story of a bombing that still strikes terror. Available at: (accessed 14 March 2017) and Hansard, HC vol 399, col 1126 ff, Mrs Iris Robinson (Strangford), Oral Answers to Questions [13 Feb 2003], La Mon House Hotel Bombing. Available at: (accessed 14 March 2017).

58 [Norman French: to speak the truth] An enquiry conducted by the judge in the absence of the jury into the admissibility of an item of evidence (eg, a confession).

59 See eg, 2000 Act, supra note 23, ss 3, 11 & Sch 2.

60 R v Brophy [1981] 2 All ER 705; [1982] AC 476. See further, Meehan, RM, P Shields Chief Inspector v Dillin Martin [2004] NIMag 1, (Ruling on Voir Dire) at 9:

“Indeed, one notes here the observations made by the House of Lords in R v Brophy [1981] All ER 705 at 709…;
‘It is of the first importance for the administration of justice that an accused person should feel completely free to give evidence at the voir dire of any improper methods by which a confession or admission has been extracted from him, for he can almost never make an effective challenge to its admissibility without giving evidence himself. He is thus virtually compelled to give evidence at the voir dire.’”
Available at: (accessed 14 March 2017).


61 The Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950; 213 UNTS 221; TS 71 (1953); Cmd 8969 [ECHR]. See further, European Convention on Human Rights as amended by Protocols Nos. 11 and 14 supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13 (in force 1 June 2010). Available at: (accessed 14 March 2017).

62 Ibid, ECHR, Art 15 Derogation in time of emergency.

63 Civil Authorities (Special Powers) Act (Northern Ireland) 1922 12 & 13 Geo 5 cap 5 (N.I.).

64 This was the first day of “Operation Demetrius”, the British Army name for the internment arrest operation. See further, BBC, 2005, Internment, August, 1971. [online] Available at: (accessed 14 March 2017); and BBC, 2008, 1971: NI Activates Internment Law. [online] Available at: (accessed 14 March 2017).

65 These techniques are known as “the five techniques”. See further, Newbery, S. "Intelligence and Controversial British Interrogation Techniques: The Northern Ireland Case, 1971-2." Irish Studies in International Affairs, (2009), Vol 20, 103. Available at: (accessed 14 March 2017).

66 Report of the enquiry into allegations against the security forces of physical brutality in Northern Ireland arising out of events on the 9th August, 1971 by Sir Edmund Compton Cmnd 4823 (1971) (HMSO, London,1971) [Compton Report].

67 Ibid, p v, para 14: “The more serious allegations which the Committee were able to investigate relate to the subsequent interrogation in depth … the Committee have found no evidence of physical brutality, still less of torture or brain-washing.”

68 Memorandum from the National Archives. See further, BBC, Reynolds, P, 2 January 2005, Internment report led to fury. [online] Available at: (accessed 14 March 2017).

69 Report of the Committee of Privy Counsellors appointed to consider authorised procedures for the interrogation of persons suspected of terrorism, by Lord Parker of Waddington, Cmnd 4901 (1972) (HMSO, London, 1972) [Parker Report]. The Committee were unable to agree on their findings and accordingly submitted two reports (within the one Command Paper): I The Majority Report of the Chairman and Mr. Boyd-Carpenter and, II The Minority Report of Lord Gardiner.

70 Ibid, Parker Report, I The Majority Report, paras 2, 39 & 41.

71 Ibid, para 2.

72 Ibid, para 20.

73 Ibid, para 24.

74 supra, note 69, Parker Report, II The Minority Report, para 21.

75 See, Ireland v UK [1978] ECHR 5310/71; (1978) 2 EHRR 25 (the Hooded Men Case), Separate Opinion of Judge Zekia, [1978] ECHR 5310/71 p 91:

“The fourteen persons who have undergone the ordeal of the five techniques were awarded compensation by way of settlement ranging from £10,000 to £25,000 sterling each. Surely the amounts awarded constitute a strong indication of the degree of severity and the intensity and length of the suffering caused to the recipients.”
Available at:{"appno":["5310/71"],"itemid":["001-57506"]} (accessed 14 March 2017). See further, on the role of the European Court of Human Rights (ECtHR), The Court in brief. [online] Available at: (accessed 14 March 2017).


76 Ireland v UK (App Nos. 5451/71 & 5451/72) (1972). Available at:{"appno":["5451/72"]} (accessed 14 March 2017).

77 supra, note 75 Ireland v UK.

78 The request to reopen the case was made on 4 December 2014. See Communicated Case, Ireland v the United Kingdom, 22 March 2016. Available at:{"itemid":["001-162006"]} (accessed 14 March 2017).

79 A v Home Secretary (No2) [2005] UKHL 71; [2006] 2 AC 221 at para130.

80 ie, as part of “Operation Demetrius”, supra, note 64.

81 The Easter Rising (24 April–29 April 1916), so called because it occurred around Easter 1916, was a rebellion (organized by the IRB, supra, note 2) to overthrow British rule in Ireland. Some 450 people were killed, 2,614 injured, and nine others were reported missing. The Government response — execution of 15 leaders; the arrest of 3,000 suspected “supporters”; and the deportation of some 1,800 people to England, where they were imprisoned without trial — fuelled public resentment and built support for the movement for Irish independence.

82 Ibid.

83 General Sir John Grenfell Maxwell, a British Army officer and colonial governor was appointed Commander in Chief Ireland on 28 April 1916. Operating under martial law, he gained infamy from his grave mishandling of the shooting of the rebellion’s leaders.

84 HH Asquith, Prime Minister 1908–1916.

85 ”2nd Lieutenant Alfred Bucknill, an admiralty barrister. … [who] was not attached to the office of the Judge Advocate General and had no independent powers”: Enright, S, Easter Rising 1916: The Trials (Merrion Press, Newbridge, 2013), Abbreviations, Explanations and Biographies.

86 See generally, Marshall, RD, “Lieutenant W. E. Wylie K.C.: the soldiering lawyer of 1916” in Dawson, N, Larkin, F, (eds) Lawyers, The Law and History: Irish Legal History Society discourses and other papers, 2005-2011 (Irish Legal History Society (Series); v.22). (Four Courts in association with the Irish Legal History Society, Dublin, 2013) — an essay on the career of 2nd Lieutenant William Wylie, King’s Counsel, member of the Officer Training Corps based at Trinity College Dublin, who reluctantly prosecuted many of the prisoners.

87 Defence of the Realm Act 1914 cap 29 (DORA). This emergency legislation (enacted without debate on 8 August 1914) was passed four days after the outbreak of WW 1. It allowed the Government a wide range of powers during wartime, thus making it open to interpretation.

88 See, eg R v Lewis Prison (Governor) ex parte Doyle [1917] 2 KB 254. See also, eg, FGCM No. WO71 354, Connolly, James (prisoner 90), 9 May 1916. Available at: (accessed 14 March 2017).

89 Field general courts martial (FGCM) were a simplified form of court martial, often used in wartime, with the authority to sanction the death penalty. However, there was little protection for the accused, and in the Easter Rising trials, there was no Judge Advocate appointed by the office of the Judge Advocate General to provide legal advice.

90 See generally, McGarry, F, The Courts-martial of the 1916 leaders. [online] Available at: (accessed 14 March 2017).

91 Ibid, IV Aftermath, para 2.

92 Sinn Fein [Irish: ourselves or we ourselves] was founded, in 1905, as a nationalist pressure group committed to passive resistance. It is the largest Republican party dedicated to the reunification of Ireland.

93 Report of the Royal Commission on the Rebellion in Ireland, under Lord Hardinge of Pensehurst, Cd 8279 (1916) (HMSO, London, 1916).

94 Ibid, at p 12.

95 Ibid.

96 Wells, WB, An Irish Apologia: Some thoughts in Anglo-Irish Relations and the War (Maunsell & Co, Dublin, 1917) p 66. Available at: (accessed 14 March 2017).

97 “The term ‘supergrass’ was first coined by journalists in the early 1970s to describe those 'grasses' (informers) from the London underworld who testified against their alleged former associates in a series of high-profile mass trials. It is said that the nickname 'grass' for informer derives from the Cockney rhyming slang 'grasshopper' for 'copper' (policeman), but it may also owe something to the popular song 'Whispering Grass' and to the phrase 'snake in the grass’”: Greer, S, Supergrasses: A Study in Anti-terrorist Law Enforcement in Northern Ireland. (Oxford University, Oxford, 1995) p 1. See further, BBC News, Jess, M, 22 February 2012, History of the supergrass system in Ireland. [online] Available at: (accessed 14 March 2017).

98 supra, Gardiner Report note 54, para 15.

99 ECHR, supra note 61.

100 Human Rights Act 1998 cap 42.

101 ECHR, supra note 61, Art 5, Right to liberty and security.

102 Engel v Netherlands [1976] ECHR 3; (1976)1 EHRR 647 at para 58.

103 The Council of Europe (CoE), established in 1949 in Strasbourg, is an organization of 47 European countries, whose core mission is to promote democracy and protect human rights and the rule of law in Europe. CoE was home to the European Commission of Human Rights until it was “merged” (in 1998) with CoE’s best known body, the ECtHR. On ECtHR, see supra, note 75.

104 ECHR, supra note 61.

105 Anti-terrorism, Crime and Security Act 2001 cap 24 [ACTSA], Pt 4 Immigration and Asylum, Suspected international terrorists, ss 21–32 (repealed).

106 See further, BBC History, The 9/11 terrorist attacks. [online] Available at: (accessed 14 March 2017).

107 ie, the notice of derogation implemented by The Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644) which was withdrawn on 16 March 2005, following the repeal of the relevant sections of ACTSA (supra, note 105), on 14 March 2005, by the 2005 Act (supra, note 33) s 16(2)-(4).

108 eg, Under the 1974 Act, supra note 21.

109 HMP Maze (Maze Prison or The Maze) was opened in 1971 on the site of Long Kesh Detention Centre, south-west of Belfast. Until it’s closure on 30 September 2000, it held some of the most notorious paramilitary prisoners. Latterly, it was to be redeveloped as a peace centre, but this was abandoned in 2013. See further, BBC, 2005, Inside The MAZE: A history. [online] Available at: (accessed 14 March 2017).

110 R v Pitchfork, the Times, January 23, 1988. See further, the Guardian, Cobain, I, 7 June 2016, Killer breakthrough — the day DNA evidence first nailed a murderer. Available at: (accessed 14 March 2017).

111 ie, ECHR, Art 8 Right to respect for private and family life. See further, supra note 61.

112 Joined Cases C-203/15 and C-698/15, Tele2 Sverige AB v Post-och telestyrelsen, Secretary of State for the Home Department v Tom Watson and Others (Grand Chamber, 21 December 2016) [Watson].

113 The Grand Chamber of the Court of Justice of the European Union [Grand Chamber CJEU] sits with 15 judges, when this is justified by the legal complexity or importance of the case. See further: (accessed 14 March 2017).

114 Data Retention and Investigatory Powers Act 2014 cap 27 [DRIPA].

115 Ibid, DRIPA, s 1(1), (5).

116 Anderson, D, Independent Reviewer of Terrorism Legislation, A Question of Trust, Report of the Investigatory Powers Review (June 2015).[online] Available at: (accessed 14 March 2017). See para 7.27 & Annex 9.

117 ie, the Grand Chamber CJEU, supra note 113. See Watson, supra note 112.

118 DRIPA, supra note 114.

119 ie, The Charter of Fundamental Rights of the European Union which sets out the basic rights that must be respected both by the European Union and the Member States, when implementing EU law. See further, The Charter of Fundamental Rights of the European Union. [online] Available at: (accessed 14 March 2017).

120 ie, the ECtHR. See supra, note 75.

121 supra, Watson note 112, at para 107. See also, IRTL, 21 December 2016, CJEU judgment in Watson. [online] Available at: (accessed 14 March 2017).

122 DRIPA, supra note 114, expired on 31 December 2016: DRIPA, s 8(3). See now, Investigatory Powers Act 2016 cap 25.

123 See, BBC, 16 May 2016, Footage shows drone delivering drugs to prisoners. [online] Available at: (accessed 14 March 2017).

124 See, U.S. News & World Report, Risen, T, 26 July 2016, Amazon to Test Fly Drone Delivery in UK. [online] Available at: (accessed 14 March 2017).

125 Air Navigation Order 2016 (SI 2016/765).

126 UK Civil Aviation Authority (CAA) v Robert Knowles, unreported, 1 April 2014, Furness and District Magistrates’ Court. Knowles was found guilty and fined £800 plus costs of £3,500. See also: the Guardian, Arthur, C, 2 April 2014, UK's first drone conviction will bankrupt me, says Cumbrian man. [online] Available at: (accessed 14 March 2017).

127 Rt. Hon. Jeremy Wright QC MP, Attorney General, Attorney General’s Speech at International Institute for Strategic Studies, The modern law of self-defence, 11 January 2017. Available at: (accessed 14 March 2017). See also, Bethlehem, D, "Self-defense against an Imminent or Actual Armed Attack by Nonstate Actors." American Journal of International Law (2012) 106, no. 4, 770. Available at: (accessed 14 March 2017).

128 Lord Ahmad of Wimbledon (Parliamentary Under Secretary of State for Transport), Unlocking the UK’s high tech economy: consultation on the safe use of drones in the UK: Written statement — HLWS396, 21 December 2016. Available at: (accessed 14 March 2017).

129 "Isil" is the acronym of "Islamic State in Iraq and the Levant". However, the group has used the name "Islamic State" (IS) since June 2014. See further, BBC, Irshaid,F, 2 December 2015, Isis, Isil, IS or Daesh? One group, many names. [online] Available at: (accessed 14 March 2017).

130 Hannigan, R, For Your Eyes Only: the Secret Life of GCHQ, 7 June 2016, Cheltenham Science Festival. See further, the Telegraph, Bodkin, H, 9 June 2016, Terrorist groups acquiring the cyber capability to bring major cities to a standstill, warns GCHQ chief. Available at: (accessed 14 March 2017).

About the lecturer

Sir Anthony Campbell PC

Sir Anthony Campbell PC, is a former Lord Justice of Appeal of Northern Ireland and was Chairman of The Fingerprint Inquiry, Scotland (2011) (Information about the inquiry can be accessed at: (accessed 14 March 2017) and The Inquiry into Crown Decision-Making in the Case of the Murder of Surjit Singh Chhokar, Scotland (2001). The report is available at: (accessed 14 March 2017).