Another conference, another raking over old ground? Perhaps – but the DPP Barra McGrory made an interesting speech at the well-cast transitional justice conference in Belfast.
“I think society has got to make a choice. Either it decides now to go down the route, the very difficult route, of determining that we are going to forego the investigation and prosecution of the past in favour of embedding the political institutions or the peace process, or between that and deciding whether or not the peace process is best served by continuing to prosecute the past…” .
“If it is going to be the latter then I think there needs to be a very clear investigative structure established with very clear lines of definition and with significant resources and if that is going to be done it needs to have terms of reference which will cover all criminality from all sides.
“The prosecutorial aspect of this will have to be significantly resourced as well. That has not yet happened.”
This sounds appropriately even handed. And yet McGrory knows like everybody else that likelihood of the local parties – and the British government – agreeing “ terms of reference.. to.. cover criminality on all sides” are just about nil. And resources are something else. Westminster signaled long ago that not an extra penny more will be provided for this; indeed the budget is being progressively reduced.
It’s true of course that Stormont’s legal responsibility is limited ; there are other stakeholders, other DPPs, police forces , two sovereign governments , all have a role. At the moment Westminster shrugs, a mite disingenuously, saying that all depends on Stormont. Not over the Army and MI5 it doesn’t. Their favoured approach remains, which is to open the heavily redacted closed cases archive 30 or 40 years after the crime.
In one sense McGrory as an independent prosecutor needs little guidance. He can prosecute if there is more than a 50% chance of securing a conviction. What’s keeping him? He has access to the Stevens report on collusion; he can order cold paramilitary cases to be reopened. We can draw our own conclusions. In many cases the evidence may be cumulatively damning but in individual cases the evidence is not strong enough to stand up in court. Omerta prevails on all sides.
McGrory knows that for all their bluster none of the political parties has the slightest interest in exhuming old sins and no leverage exists to make them do it – except that from members of the criminal justice system like Barra McGrory. . And as I read it,McGrory is telling axe grinding politicians and the campaigners that he aint going to do anything much on his own.So the argument is circular and the deadlock is complete.
By itself this is a dangerously arbitrary situation which leaves far too much power to the operational independence of this or any police service or prosecutor. Sinn Fein have made their inevitable protest against the arrest and charging of John Downey.in the tradition of their objections to the arrest and conviction of Gerry McGeough. Everyone also knows surely that if such prosecutions proliferate they could have destabilising potential and diminish whatever faint hopes remain of former republican paramilitaries coming clean, local pressures notwithstanding.
We await PSNI action on the Boston College tapes. Anything new on the Stevens and de Silva reports anyone? A formal amnesty is rejected. So deadlock remains, smothered in verbal chaff. There are two choices: let the whole business run on and on and on until the campaigners are exhausted and the public wish to move on is finally exposed : or the two governments give public advice jointly that further prosecutions are not in the public interest. This would have no legal status but might send a powerful signal to the independent enforcers. For the Republic there would be the little matter of the clearing up the Dublin and Monaghan bombs first..
Dealing with the Past is intractable. It should be decoupled from dealing with parades and protests, the rubbing points of today which need to be tackled . But for all of this, the time for ending humbug and hypocrisy is long overdue. There is danger in delay.