Lord Carswell, judge who presided in Northern Ireland’s ‘Diplock courts’, which operated without a jury – obituary
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Lord Carswell, who has died aged 88, was Lord Chief Justice of Northern Ireland from 1997 to 2004, and for 20 years presided over “Diplock courts”, trying terrorist cases without a jury.
The Diplock system, under which judges in Northern Ireland not only preside over cases but deliver verdicts, was introduced in the early 1970s in response to a report by Lord Diplock: juries were suffering intimidation by paramilitaries, and there was the perception that some jurors might be inclined to deliver perverse verdicts due to their political beliefs, however watertight the evidence.
The Justice and Security (Northern Ireland) Act 2007 ended the automatic use of the courts for scheduled offences but they are still used on certification by the Director of Public Prosecutions on a case-by-case basis.
For judges in the Province, quite apart from the restrictions on the freedom resulting from the high level of security they had to put up with (Carswell was almost blown up the night before he started as a judge), the Diplock process was a very heavy responsibility, both morally and in terms of workload.
“It’s very testing. It’s very tiring, and, at the end of the case, there’s not the catharsis of the jury verdict,” Carswell told the Telegraph’s then legal editor Joshua Rozenberg in 2005. “Everybody just goes home. And then the really hard work starts.
“Unless it’s a very obvious case, the judge has to go through all the evidence, go through all the arguments, do any necessary reading or research and then write a judgment – with nobody else to lean on. Jurors have each other, [judges in] the Court of Appeal have a couple of other members to discuss the case with, but the non-jury trial judge is on his own.”
Inevitably the system caused huge controversy. One of Carswell’s most contentious cases concerned three men, Patrick Kane, Michael Timmons and Sean Kelly, the so-called “Casement Three”, whom he sentenced to life imprisonment in 1990 for the murder in 1988 of corporals David Howes and Derek Wood, two off-duty British soldiers who at a time of high tension in the Province had taken a wrong turning and found themselves in the midst of an IRA funeral.
Initially thought by the crowd to be Protestants intending to attack the mourners, the men were dragged from their car and beaten. They were then hauled into nearby Casement Park, stripped to their underwear and beaten again before being thrown over a wall, loaded into a taxi and taken to a vacant lot where they were shot dead. The whole incident was filmed in harrowing detail by a British Army helicopter hovering overhead.
The three defendants had not been present when the soldiers were shot; two other men, Alex Murphy and Harry Maguire, who had played a leading role in the killings, had been found guilty of the murder in 1989 in a separate trial. In finding the three guilty Carswell relied on the doctrine of “common purpose”, under which defendants not directly involved in a murder or other crime may be found guilty if they are judged to have given implied approval of the crime.
Carswell found that the defendants were in Casement Park and took part in the attack; two of them admitted they had kicked the soldiers. He reasoned that they must have contemplated murder as one possible outcome of their “joint purpose”, and since murder was the result, they were found guilty.
Defence lawyers and civil liberties campaigners argued that Carswell had stretched the law of common purpose beyond its intended meaning, pointing out that none of the accused was alleged to have conspired with the actual killers and none had been present when the killings occurred. There were calls for the Diplock system to be disbanded.
But in 1991 the Northern Ireland Court of Appeal confirmed the verdicts and the sentences, though the panel of judges had some difficulty with some of Carswell’s findings of facts in the case of Sean Kelly, and in 1997 his conviction was quashed after the Appeal Court ruled that his mental and psychological state undermined the admissibility and reliability of confessions made to police.
Robert Douglas Carswell was born on June 28 1934 to Alan and Nance Carswell and was educated at the Royal Belfast Academical Institution and Pembroke College, Oxford, where he graduated with Firsts in Mods and jurisprudence in 1956. Two years later he graduated from the University of Chicago Law School.
Called to the Bar of Northern Ireland in 1957 and later, in 1972, to the English Bar by Gray’s Inn, he served as Counsel to the Attorney-General for Northern Ireland in 1970–71, taking silk in 1971.
From 1974 to 1984 he was Senior Crown Counsel in Northern Ireland, in which capacity he represented the Northern Ireland Office at the inquest into the deaths of 10 Provisional IRA and INLA hunger-strikers at the Maze prison.
In March 1984, a day before taking up his appointment as a High Court judge in Northern Ireland, he spotted a bomb attached to his car in the driveway of his home. It was subsequently defused.
Carswell presided over several high-profile terrorist cases, including the 1985 trial and convictions, on charges ranging from murder to kidnapping to firearms and explosive offences, of 27 men arrested on the evidence of a Republican “supergrass”, and the 1986 conviction of four INLA killers, two sisters and two men, for the murders of 17 people in a no-warning bomb attack on the Droppin’ Well disco bar in Ballykelly, Co Londonderry, in 1982.
In 1992 Carswell was appointed a Lord Justice of Appeal at the Supreme Court in Northern Ireland. When he succeeded Sir Brian Hutton as Lord Chief Justice of Northern Ireland, an unnamed source quoted in Lawyer magazine described him as “a lawyer’s lawyer”, adding: “He has a sharp brain and he tends to be one step ahead of counsel. He runs a tight ship in court and is admired, rather than liked, for that. Sometimes it can be a challenge to appear before him.”
When Carswell was appointed a Lord of Appeal in Ordinary (Law Lord) in 2004, Marcel Berlins in The Guardian recalled that there had been suggestions that his role in a constitutional controversy of 2000 might have scuppered his promotion prospects.
This was a reference to a row over two nationalist barristers who had been appointed QCs but had refused to swear an oath of allegiance to the Queen. When Carswell refused to allow them to practise as QCs unless they made the declaration, the pair took the case to judicial review in the Northern Ireland high court and won. The judge who ruled against Carswell on that occasion, Sir Brian Kerr, succeeded him as Northern Ireland Lord Chief Justice.
Carswell was knighted in 1988, sworn of the Privy Council in 1993 and served on the cross-benches of the House of Lords until his retirement from the upper house in 2019.
In 2009-10 he chaired an inquiry into the roles of Jersey’s Crown Officers which recommended that the Bailiff’s dual role as leader of the States of Jersey (the island’s parliament), and of the legal system, should end and that the Bailiff should stand down as the President of the States of Jersey and be replaced by an elected speaker.
Lord Carswell married Romayne Ferris in 1961. She survives him with two daughters.
Lord Carswell, born June 28 1934, died May 4 2023
