Slugger O'Toole

Conversation, politics and stray insights

Before Haass reveals his recommendations, the practical issues of dealing with the past

Wed 18 December 2013, 6:17pm

Proposals for dealing with the past could be drowned out by flags and parades when the Haass proposals are published. So let’s take a look now at the informed speculation on this issue by Mark Devenport:

On the past, it is understood there will be a single investigative body bringing together work currently carried out by the Historical Enquiries Team (HET) and Police Ombudsman and possibly the coroner’s courts.

There is also a proposal for an independent information recovery body that would have the power to offer limited immunity covering information brought to it.

People providing information could not have their own testimony used against them in court, but they could be open to prosecution on the basis of evidence from elsewhere.

The proposal a for single investigative body is relatively uncontroversial. A “single mechanism “favoured by Amnesty International and the Committee for the Administration of Justice (CAJ) now looks on the cards and would answer demands for greater investigative independence. But apart from that  it  would do little more than rearrange the furniture. Investigations of historic cases have to be reviewed by people with policing and legal skills recruited from somewhere.

The prospects for progress will greatly improve if the position of the DUP in particular is softening on conditional immunity. Before politicians take final decisions on dealing with the past they need greater clarity on a number of interrelated issues.

Strong criticism from impartial bodies has been made against the HET and the Police Ombudsman  for  unduly favouring  police evidence.  It is  unclear  – although unchallenged –  if it  was in the public  interest for Her Majesty’s Inspectorate of Constabulary (HMIC) to criticise the HET for applying the inferior standards of the time to police evidence rather than the more rigorous human rights standards of today.  This is what the Diplock Courts  did all the time.   Criminal case reviews have already found a small number of convictions “unsafe” but hundreds more may  be affected. Might there also have be hundreds which should have been prosecuted? Is this the route we want to go down? Or is Professor Kieran McEvoy’s conclusion accepted, that there is:

 bluntly, no prospect that scores ( of fresh prosecutions) will be successful. To date the Historical Inquiries Team has reviewed over 2,200 cases and only two successful conflict-related prosecutions have been achieved.

These are powerful questions which have barely figured in political debate. Some of them should be answered more fully by the prosecuting  authorities.who should suspend their normal discretion in these exceptional circumstances.

Opening the full HET record for a review  by a team of experts is surely another important  step. They should also  be able to see the HET reports of closed cases already given to families. They would need to know the degree of access to the full  case record.  What evidence can be released if prosecutions can still result?

If the conditions for archive access were ideal the next question is, would paramilitaries and police officers take part in “truth recovery” – that is, agree to talk? Reports from the archives periodically realised on themes such as interrogation and the use of informers – and their alleged results  – would produce a wealth of material calling for replies. These should be made under closed inquiry conditions  of truth recovery. If  no reply came from paramilitaries and from the police and other state agents under fire, the archive report would constitute the published account.

The best result for dealing with the past therefore would be to revert to the main elements of Eames- Bradley for a legacy commission: “to review and investigate historical cases; conduct a process of information recovery and examine linked and thematic cases emerging from the conflict,  but with an agenda and time scale which would  cost considerably less than £ 100 million -  a budget which would have to come out of the Northern Ireland block grant.

Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on Delicious Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on Digg Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on Facebook Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on Google+ Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on LinkedIn Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on Pinterest Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on reddit Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on StumbleUpon Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on Twitter Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on Add to Bookmarks Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on Email Share 'Before Haass reveals his recommendations, the practical issues of dealing with the past' on Print Friendly

Comments (16)

  1. tmitch57 (profile) says:

    Those giving testimony or information on unprosecutable legacy crimes should be given limited immunity indemnifying them from prosecution on the basis of their information. The main goals should be for historians to get as accurate a record as possible as a basis for writing future histories of the conflict and for families to get closure about the deaths of their loved ones.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  2. Alias (profile) says:

    Professor McEvoy’s argument is nonsensical. He claims that criminals would confess to their crimes if they were provided with an amnesty that meant there was virtually no chance of a successful prosecution but then claims that there is virtually no chance of a successful prosecution anyway (“2,200 cases and only two successful conflict-related prosecutions have been achieved”). Why would criminals bother to avoid an outcome via a truth recovery process (a horrible phrase) that they can clearly best avoid by saying nothing?

    Yes, Helen Keller would be able to solve more than two out of 2,200 unsolved cases but only if she wasn’t instructed not to effectively investigate any of them as part of the de facto amnesty that is already in place for these protected criminals deemed useful to British national interests.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  3. So you have one body looking at building a legal case, meanwhile if it looks like a prosecution is imminent a character can go to another body, fess up and raise two fingers to the investigation. Stuff of nonsense. No amnesty, no immunity. Leave it to the Rule of Law. If £200 million can be spent on one inquiry, no reason not to properly resource a full HET or equivalent. Justice may be blind, but should not be made to look ridiculous for any reason let alone scant imagined political advantage of a few.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  4. tmitch57 (profile) says:

    “So you have one body looking at building a legal case, meanwhile if it looks like a prosecution is imminent a character can go to another body, fess up and raise two fingers to the investigation.”

    @dissenter,

    Apparently you didn’t bother to read the article. The immunity would only be on the basis of information from the confession. If that information could be gathered from another source the prosecution would go through.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  5. Frustrated Democrat (profile) says:

    Immunity is a non starter, the message it would send out to the people like those who set the Victoria Centre or the Cathderal Quarter bombs would be disastrous.

    That message would be ‘it is OK do what you want, kill who you want in the end you will get immunity as what you are doing will be re written into a glorious struggle for freedom.’

    That is not a route that will reduce their activities on the contrary it will give them encouragement and leave us in a much worse place.

    Let us never go there, let us treat murder as murder even if there is no prospect of a conviction, to do otherwise blurs the distinction between right and wrong.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  6. “The immunity would only be on the basis of information from the confession. If that information could be gathered from another source the prosecution would go through.”

    So I say I held the gun and fired… Fingerprint evidence, nullified, DNA, nullified because I’ve said I was there and that is not in question. Other ‘sources’? Legal minefield no prosecutor would want to enter. Sounds so simple, practically it is unworkable and total immunity.

    From the other end, why would I give evidence that might give the ‘investigators’ the heads-up that might open a door to another ‘source’ of evidence.

    Either way the idea sucks.One of those bright ideas that is simply impractical.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  7. Alias (profile) says:

    “The immunity would only be on the basis of information from the confession. If that information could be gathered from another source the prosecution would go through.” – tmitch57

    And why will this encourage criminals to tell the truth? It might make sense if, as thedissenter probably meant, that any self-incriminating testimony they volunteer to such a process would disqualify any collaborating evidence. But as that is not how it would work, all that the criminal would be doing is putting himself in the frame for further investigation outside of the process. Why would a self-incriminating guilty person heretofore – supposedly – unknown as a suspect in a particular case testify that he should be the sole or primary person of interest? There is no logic at all there.

    McEvoy cites the Saville tribunal as an example of where such an amnesty was used but doesn’t cite any example from the tribunal to support his assertion that it was indispensable to ascertaining the ‘truth’ and nor does he mention that one of the beneficiaries of amnesty, Martin McGuinness, actually lied to the tribunal so that directly contradicts his claim.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  8. Alias (profile) says:

    “Let us never go there, let us treat murder as murder even if there is no prospect of a conviction, to do otherwise blurs the distinction between right and wrong.”

    Amen to that. Apart from the fundamental damage to society in general, it is an appalling and unforgivable insult to the victims and their families in particular..

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  9. This is one of those rare occasions where I agree with Alias. Murder is, quite rightly, considered to be the most horrible of crimes. Those who have committed it and not been brought to justice should always have to look over their shoulders in fear of apprehension.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  10. tmitch57 (profile) says:

    “So you have one body looking at building a legal case, meanwhile if it looks like a prosecution is imminent a character can go to another body, fess up and raise two fingers to the investigation.”

    @dissenter,

    So how would the perpetrator know that a prosecution is imminent? Most of the offenders being prosecuted would be from paramilitary organizations and they would have to rely on leaks to politicians. The loyalists are probably more disadvantaged in this regard, but even Sinn Fein probably could not help provide much of a warning to former IRA members.

    “Those who have committed it and not been brought to justice should always have to look over their shoulders in fear of apprehension.”

    @Mister Joe,
    Thanks to the GFA all any of the murderers will have to fear is two years behind prison. If real life prison sentences (effectively 10-12 years during The Troubles) weren’t a deterrent to political murder then, how is a two-year sentence going to be a deterrent to future political murder?

    In Seattle, Washington when the Green River killer was caught in 2001, the lead detective in the case convinced the families of the victims to allow him to take the death penalty off the table in exchange for Gary Ridgeway’s assistance in recovering the bodies of the victims that hadn’t been found yet and in exchange for confessing to all other murders that he had committed. The families agreed because they understood the importance of closure to the families provided by being able to bury a body. In NI there are many fewer unaccounted for bodies, but many families want to know that their loved ones did not suffer greatly before dying or just want some details so that they can mentally place the death in context. This is a competing interest. Obviously there are competing interests in opposition. It will be up to prosecutors to make victims groups aware of these competing interests and to put in the balance the likely value of no immunity versus the value of immunity.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  11. “So how would the perpetrator know that a prosecution is imminent? ”

    What sort of investigation would it be if a key subject of that investigation were not to be interviewed – under caution perhaps, but without charge?

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  12. BarneyT (profile) says:

    So as someone who was pro truth and reconciliation and who received the attorney generals amnesty call as worthy of consideration…I have changed my mind. I had some interesting chats tonight with a Slovak and a Polish guy, in particular about atrocities, where they are now and how they moved on. The histories are different, and the checz\slovac is very much the reverse (separation rather than unification). The slovacs were dominated by Hungary and the checzs by Austria….so even though they reformed as two entities, they had a working federation within the soviet era. Excuse spellings

    I am increasingly of the view that we need to draw a line under this, introduce an amnesty, forget truth and reconciliation as that will be manipulated and somehow try to find a new start. it will be painful but I think we have to.

    But, we’ve compromised by different goals for the ultimate solution which has to be unification with harmony and total shared cultures and all that goes with it ..perhaps even a new semi-culture.

    Anyhow brothers and sisters of this island, look at our new flag :-) I don’t have a name for it and the Y for Yes, although cowped, is appropriate.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  13. RegisterForThisSite (profile) says:

    BarneyT, I actually find Bangladesh a more interesting comparison to NI. Several decades after independence they are finally getting around to putting pro-Pakistani soldiers and politicians on trial. Nationalists already believe there is an unspoken amnesty for soldiers and police in NI. If a united Ireland appears on the horizon in our lifetime I imagine HMG will be very keen to deal with this officially before it becomes the responsibility of the Irish Govt.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  14. babyface finlayson (profile) says:

    If there have only been 2 prosecutions from the HET reviewing over 2000 cases, I fail to see how an offer of immunity could do any worse.
    In cases where the families come forward and say it is their wish then who would deny them the chance at finding the truth?
    Few participants may be willing to take up the offer, as they will reckon their chances are good of never being prosecuted anyhow, but a few would be better than zero would it not?
    An imperfect solution, but it would at least give the families of victims a choice,another option, a little hope.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  15. Greywind (profile) says:

    “Forget truth and reconciliation as that will be manipulated.” Barney T is right, truth recovery is manipulative. For some families of victims, information is important, knowing what happened to a loved one is better than not knowing, it can bring closure, even when it does not lead to a conviction.
    Beyond that, truth recovery only reveals one of two (or more) competing versions of what happened, and for the clearest example of that, look at the differences between Widgery and Saville. Truth recovery can only serve as a political tool to grant ‘official’ status to one version or another of a particular incident. Very often, that’s the game that is played out – making sure that its our version, and not their’s, which becomes accepted. So beyond the level of closure-granting information (and I’m not belittling that because for many it has been the very stuff of getting life back on the road), truth recovery is a non-event.
    Something which is definitely not a non-event is reconciliation. Of course, it has become a buzz word, a quick fix, an easy-peasy forgive and forget. It has been presented as the place everybody wants to live, but no-one wants the long, hard journey to get there. But reconciliation is actually a two thousand year old Christian belief to which Catholics, through perhaps St. Ireneaus, and Protestants, through perhaps John Calvin, have signed up, but seem to have done so without realising that they have signed up to the same thing. It is a long hard journey because along the way you have to leave entrenched positions, surrender cherished but false perceptions of ‘themmuns’ and run the risk of rejection as a deserter. Eames-Bradley made much of this only to those their way with a £12000 bullet in the foot. Forget the own goal of the ex-gratia payment, and forget the hidden agenda of truth recovery and get back to the costly and humbling business of reconciliation.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0
  16. tmitch57 (profile) says:

    “What sort of investigation would it be if a key subject of that investigation were not to be interviewed – under caution perhaps, but without charge?”

    @dissenter,

    The logical suspects would have already been interviewed at the time of the original murder or crime. Any new prosecutions would be on the basis of new technologies such as DNA technology or from a new witness coming forward.

    What do you think?
    (Log in or register to judge or mark as offensive)
    Commend 0

Leave a Reply

You must be logged in to post a comment.

Copyright © 2003 - 2014 Slugger O'Toole Ltd. All rights reserved.
Powered by WordPress; produced by Puffbox.
96 queries. 0.681 seconds.