Adams may dodge legal bullet on similar public interest grounds as the Paras…

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Excellent summary of the legal position from Joshua Rosenberg in the Guardian today, which points out that even if the PSNI have sufficient evidence to charge Gerry Adams, a public interest defence (not dissimilar to the one the Secretary of State has used to block the Ballymurphy and La Mon families), could see him walk away free from a criminal trial…

Once prosecutors have concluded that there is enough evidence, they must decide whether a prosecution is in the public interest. This time, the codes on both sides of the Irish Sea are broadly similar. But the dynamics are subtly different.

The DPP for England and Wales, Alison Saunders, operates under the superintendence of the attorney general, Dominic Grieve QC. Superintendence, a term first used in 1879, was left undefined by parliament. But Grieve made it clear in a speech last year that he would not tell the director what to do in an individual case “save very exceptionally where necessary to safeguard national security”. Before giving a direction, Grieve said, he would consult his colleagues in government – though the decision would be one for him alone.

Since the devolution of policing and justice powers to the assembly four years ago, Northern Ireland has had its own attorney general, John Larkin QC. But unlike Grieve, Larkin does not superintend the DPP. Barra McGrory QC, who was appointed to the post by Larkin in 2011, exercises his powers independently, although he must consult the attorney general in some circumstances and the two lawyers may consult each other more generally. Some powers were not devolved in 2010 and these are retained by Grieve as advocate general for Northern Ireland.

And…

Adams made it clear that the police questioned him about his alleged membership of the IRA, itself an imprisonable offence. He has always denied having been an IRA member and the charge is notoriously difficult to prove. But if the police have evidence to support this allegation – or if Atchison thinks it can be obtained – she might have to consider whether it would be in the public interest to charge Adams with IRA membership. In my view, it would be entirely proper for Atchison to take account of the public interest in maintaining the peace process and the effect that charging the Sinn Féin president would have on the future of power-sharing in Northern Ireland.

Similar considerations must come into play if evidence emerges linking Adams to McConville’s abduction or murder. He has consistently denied involvement. The law may require Atchison to favour pragmatism. And she need look no further than the code under which she operates to find the famous principle expressed by Sir Hartley Shawcross, the Labour attorney general and former Nuremberg prosecutor.

“It has never been the rule in this country,” he told parliament in 1951, “that suspected criminal offences must always be the subject of a prosecution.” Prosecutors, he added, must have regard to “the effect which a prosecution, successful or unsuccessful as the case may be, would have on public morale or order”. [emphasis added]

So there you go. Given how grateful the Secretary of State seemed to be that Gerry had put the PSNI bunny back in the box, I would not bet against this line of reasoning eventually emerging from the DPP’s office.

Nor should it’s relevance to those seeking justice for victims of State murder be underestimated. As Rosenberg observes of Shawcross’s argument:

These are wise words. And they apply equally to those on the other side of the Troubles.

They already have Joshua, they already have…

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  • tacapall

    And there we have the square peg fitting neatly into the round hole. Im sure the Irish people will breathe a sigh of relief knowing that the Irish government will be safe from civil actions if the present trend of Sinn Fein continues and Adams ends up Taoiseach.

  • Mick Fealty

    In the terms of Shawcross’s argument that’s perfectly legitimate…

  • mr x

    Pretty terrible thing that Shawcross said. So he agreed with the Nazis then

  • Mick Fealty

    No.

  • http://www.thedissenter.co.uk thedissenter

    Seems public interest though is a double edged sword. Any sense being given that despite enough evidence being available Gerry gets out of jail free and the DUP would be under immense pressure. Other way and SF goes ape. Neither scenario ends well. Suppose it depends on who hasn’t gone away…

  • cynic2

    If the law only applies to Unionists why should they obey it or support the continued existence if Stormont

  • mr x

    This law was used in the 1970′s to prevent dockers being arrested under Heath’s trade union laws. Didn’t end well for anyone.

  • Morpheus

    Joshua Rozenberg is quite right when he quotes the the Northern Ireland prosecutors’ code: “The test must be how an impartial jury or judge is likely to conclude.”

    IF an impartial jury or judge concludes there is sufficient evidence to convict Gerry Adams then he should be convicted, simple as that. IF an impartial jury or judge concludes that there is enough evidence to convict the Paras then they should be convicted, simple as that. Convicted criminals facing the consequences of their actions IS the public interest.

    In the case of Gerry Adams every effort is being made to find the evidence at all costs so it can be presented to the impartial jury or judge but in the case of the Paras the evidence is being actively suppressed by the State – the impartial jury or judge is not getting the opportunity to decide if there should be a conviction.

    It makes a mockery of our legal system to think that the Paras should be protected because the State cannot find the evidence to convict Gerry Adams.

  • Mick Fealty

    With respect, that’s a distraction Morph. As he points out in the post. Now, back to the point: Public Interest Defence.

  • http://nalil.blogspot.com Nevin

    As per usual, the public will be the last to be considered when it comes to accessing what is in the public interest. Victims will continue to be traumatised as the various decision makers and shakers protect vested interests. Many victims didn’t have the option of ‘dodging legal bullets’.

    ‘There is a general public interest in promoting transparency, accountability, public understanding and involvement in the democratic process’ but this will be ignored by the assorted vested interests. Is it any wonder that so many voters have walked away from the ballot box?

  • Brian Walker

    You scooped me today Mick, well done! I would add..

    Has the Adams interrogation set a precedent for more rigorous legal investigation or strengthened the view that the public interest should to left a a legal officer only to apply case by case?

    While it now seems to be purely technical point, Joshua has given a pretty wide definition of the public interest” which the deputy director of prosecutions has to consider. But just consider the burden of decision on a single official if the police file on Adams contained anything substantial. Is this really acceptable?

    It’s worth repeating what the two top legal officials have said about the future of prosecutions. A year ago the DPP Barra McGrory gave his view of the choice facing society. The Adams case underlines it.

    “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,” he said.
    “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.”

    The Attorney General John Larkin’s view is controversial but the reasons behind it requires closer examination.

    “More than 15 years have passed since the Belfast Agreement, there have been very few prosecutions, and every competent criminal lawyer will tell you the prospects of conviction diminish, perhaps exponentially, with each passing year, so we are in a position now where I think we have to take stock.”

    Would more rigorous investigation including police interviews like Gerry Adams’ produce more results?. Away from all the wrangling over politics and ethics, this empirical question is the one that matters when considering any new system for dealing what the legacy of violence.

    Can the parties make a choice or would it be even more destabilising for them to try? I believe the Haass proposals on the past are politically and practically realistic and could deliver a win all round provide they are decoupled from the more immediate issues of flags and parades.

  • Kensei

    Just to clear – they aren’t looking to prosecute Adams with anything connected to a particular criminal case but rather with membership of the IRA? In the 70s?

    That seems like a spectacular waste of time, if so.

  • Mick Fealty

    If so, I agree. But we don’t yet know. I suspect that may come from Adams own interpretation which he shared at the media conference… http://goo.gl/yS6UI6

  • http://nalil.blogspot.com Nevin

    “Gerry had put the PSNI bunny back in the box”

    Only yesterday, Gerry backed Martin’s attack on the police and followed it up with an attack on the Taoiseach:

    “When Martin McGuinness spoke about the danger to the process coming from the ‘dark side’ within the PSNI the Taoiseach’s response was to suggest he should make a complaint to the Ombudsman! This is about the future of the political process and the Taoiseach suggests a complaint to the Police Omudsman! What about his responsibility?

    This attack is endorsed in the Soapbox piece by Daithi McKay.

  • Delphin

    The public interest test is applied to all prosecutions. DPP guidance is available on line
    (this is for England and Wales the NI legal guidance pages are ‘under construction’ but are unlikely to be that different)

    http://www.cps.gov.uk/publications/docs/code_2013_accessible_english.pdf

    I have picked out two sections which I think are particularly relevant

    What is the impact on the community?
    The greater the impact of the offending on the community, the more likely it is
    that a prosecution is required. In considering this question, prosecutors should
    have regard to how community is an inclusive term and is not restricted to
    communities defined by location.
    Do sources of information require protecting?
    In cases where public interest immunity does not apply, special care should
    be taken when proceeding with a prosecution where details may need to be
    made public that could harm sources of information, international relations or
    national security. It is essential that such cases are kept under continuing
    review.

    In a community as divided as ours what is in the public interest is not, and cannot be clear cut, so it’s back to the politicians to sort something out.

  • Turgon

    Brian Walker quotes Barra McGrory above. However, I think his (McGrory’s) position is simply incorrect at least from a unionist perspective. I suspect not investigating and prosecuting crimes of the past is actually now helping destabilise the political institutions and process. There are many toxic foundations of the current system but one of them is failure to investigate and prosecute especially on the most serious of offences (be that Bloody Sunday or La Mon etc.)

    I suspect a public interest reason not to prosecute Adams over IRA membership would be accepted with relatively little angst by many here. A decision on public interest grounds not to prosecute over Jean McConville if (and I agree it is a big if) there was enough evidence for a reasonable likelihood of conviction would, however, be a much more controversial decision. That would endanger the political process perhaps just as much as a decision to prosecute.

  • Coll Ciotach

    or he may dodge the bullet on the grounds he did not murder McConville unlike the Paras who did murder

  • Brian Walker

    I’m asking for more explanation of Larkin’s view that available evidence is fast declining. Might more be uncovered by more zealous pursuit and compulsion of witnesses?

    The transitional justice academics have produced worrying evidence of sloppy procedure which can only partly be explained by the huge burden of the caseload. These are empirical questions and empirical questions are unpopular with the morally convinced.

    Whether political stability is threatened by a failure to prosecute is a different question. It would be as well though if it were based on some evidence rather than blind conviction. There are different responses to different cases. Some want truth which the evidential test for prosecution arguably impedes. Others want nothing to impede the quest for Justice whether reasonable grounds for prosecution exists or not.

    One question is whether NI parties can agree on whether there is a single public interest or several. Whether moral cases exist for or against amnesty or not, it is clear that a clean sweep of the record cannot happen. It is therefore up to politicians to set an acceptable framework of investigation which facilitates evidence -gathering and for the legal officers to apply the evidential tests. This is is almost certain to require some level of immunity, a factor which apples to all reputable justice systems.

    We have three main problems today with the present system – the HET is officially partly tarnished and OPNI was but now isn’t. The PSNI want out of the Past. Should there be a new independent single system as recommended in Haass?

    Two the problem of the silence of many state actors and paramilitaries exposed in inquiries. Should they be interrogated like Adams? What do we do if they refuse to answer?

    And three. There are claims that many convictions perhaps up to 300 are unsafe. Reading the judgments of a couple which were overturned, you might wonder how they were ever convicted ( I don’t claim this applies to all).

    There is a lack of transparency about the outcomes of the criminal justice system and executive discretion that should be addressed. For example we’ve just heard about 150 cases of the royal prerogative of mercy. The system is piecemeal and appears random. It I therefore highly vulnerable to political exploitation and public misunderstanding. In such circumstances where there are strong and often opposing public sentiments we need a better system that tries to address public opinion but accords with what is possible.
    ,

  • Mick Fealty

    I think the case on this less pragmatice than public interest Brian. There’s a trope going round that there were 3000 unsolved murders, in fact 20k prisoners were actually sentenced during the conflict. The figure of those still looking for basic justice is much lower than that.

    [I'm still rumaging in the attic for some hardish figures on that...]

  • http://www.thedissenter.co.uk thedissenter

    Haven’t any precise figures, but on murder lists think it is 60% of deaths caused by loyalist terrorists have had someone charged/convicted, 10% republican. Anyway, a lot of cases remain open.

  • Brian Walker

    Mick,
    The original remit of the HET was broadened from reviewing the 2,000 “unsolved murders” of the conflict to a total of 3,268 cases. The stated grounds for this expansion to include cases where individuals had in fact been convicted is that, even in such cases, there may be others involved in such murders who avoided arrest. ( Professor Lundy).

    On the subject of 300 cases of potentially doubtful convictions, the record seems broadly favourable to the courts.

    “As of last month The UK Criminal Cases Review Commission has so far received 367 applications from Northern Ireland since1997. Of the 316 cases now closed, 39 cases have been referred to the NI Court of Appeal. Of the 34 cases decided, 30 have resulted in convictions being quashed or sentences reduced while convictions were upheld in four cases. One summary conviction was quashed by the County Court. 38 On 23 May 2012, the Northern Ireland Court of Appeal handed down

    The judgment in the cases of R v Brown, Wright, McDonald and McCaul [2012] NICA 14. These cases, referred by us in 2009, concerned admissions made by defendants who were 15 or 16 years old at the time of their arrest and interview in the 1970s. None of the applicants had access to a solicitor during detention before making admissions and none was accompanied by a parent or independent person during interview.

    The Court quashed the convictions of Messrs McDonald and McCaul but upheld those of Messrs Brown and Wright. Following the judgment, the Commission was able to progress a number of other“youth confession” cases which could not be reviewed until the outcome of those cases was known. In all but two of those cases a decision was made not to refer; the two cases remain under review.”
    ( Criminal Cases Review Commission to the Commons Justice Committee)

    Prisoners Release Scheme

    As of March 2013, 640 applications for release were made by prisoners, the majority around 1998-1999. Of these applicants, 482 have been released (314 fixed term and 168 life sentence prisoners).26 Only 21 have had their licence revoked (4 fixed term and 17 life sentence prisoners)27 which represents 4% – a fraction of the normal 47% reoffending rate in Northern Ireland within two years.28 In transitional justice terms, this scheme was a conspicuous success.

    Responsibility for killing
    Responsible party No.

    Republican Paramilitary Groups 2055
    Loyalist Paramilitary Groups 1020
    Security Forces 368
    Persons unknown 80

    Most of those killed were civilians (1855) or members of the security forces (1123), with
    smaller groups of victims identified with Republican (394) and Loyalist (151) paramilitary
    groups. Due to the secretive nature of paramilitary organisations it is often disputed
    whether or not some civilians were members of paramilitary groups and indeed the
    families of some of those killed would strongly dispute such allegations.” (Eames/Bradley)

    You may have noticed that the Chief Constable and ACC Hamilton told the NI Select Committee of MPs this afternoon that 95 out of 228 republican OTRs who received comfort letters were linked to murders. 18 of 350 who received the royal prerogative of mercy were similarly linked. The MPs will be given the names in confidence. I wonder why use they’ll make of them? The complex accounts of the senior policemen left me convinced that the DUP couldn’t be blamed for not realising what was going on. Neither did the Chief Constable until May 2013.And NIO officials altered some police drafts in a way that might have suggested amnesty, it turns out.

    All of the above I’d say supports my case for much greater transparency over outcomes, when dealing with the legal legacy,

  • tacapall

    All your facts and figures seem perfectly balanced Brian but unfortunately not accurate, should read -

    As of last month The UK Criminal Cases Review Commission has so far reviewed 367 applications from Northern Ireland since1997.

    Taking into account the charge of joint enterprise the security force figures should be far higher than 368.

  • BarneyT

    GA and SF are in a good place. They should be kept there. That is in the public interest.

    If the loyalist political representatives progress and engage, separating themselves from the unsavoury events in Belfast, they too should be maintained on a political path.

    As I see it, there is little risk of the “old” IRA re-emerging as they once did. There is also little chance of SF advocating a path of insurrection in the current climate, especially with the ROI carrot dangling large.

    A conviction that would generate unrest, create division within the “moderate” republican ranks and force a withdrawal of support for the police and other NI institutions is not in our interest. Hard decisions have to be made.

    For me inquests should be held if there is substantial information to uncover. We should ask, what do we not know. If the state is involved in a bombing, execution of civilians, then its hard to not press for a proper investigation. I apply this to both state actors over here.

    We largely know what the IRA\INLA\UVF\UDA did. Their actions take on a different spin when its alleged that there is some state initiate behind the deeds or subsequent misinformation.

    We need to stop the bull and understand that not pursuing a case in the public interest is heading down the path of an amnesty. We need to entertain this notion quickly, which I know will be painful and will discount the victims, but as we’ve seen, the state is prepared to take that approach, in the public interest, and write off “crimes” as they see fit. I might just work if we can draw a line under all of this and continue the path of politics and all kinds of discussion.

  • Politico68

    Mick,

    Your piece above is founded on the basis that GA is guilty but because it might not be proved the outcome will have to be either no charge due to insufficient evidence or no charge in order to protect the public interest.

    How can anybody reasonably argue that the judicial system is undermined because GA can’t be jailed when that analysis itself is based on the notion that the judicial system must be ignored, twisted and undermined in order to secure a jail term for him??

    Crazy stuff !!

  • Politico68
  • Seamuscamp

    “It has never been the rule in this country,” he told parliament in 1951, “that suspected criminal offences must always be the subject of a prosecution.”

    Is this saying: “Sometimes we prosecute on the basis of suspicion” – a proposal actually advocating unlawful acts? Or is it saying: “We always need persuasive evidence of an offence to bring a prosecution” – which has demonstably not been the case in many instances

    I would like to see a case brought against GA in respect of his behaviour in respect of his niece’s travails. I don’t know if there is sufficient evidence for a conviction, but at least there is some evidence from living people.

    In the current case, there seems to be no public evidence at all except for recorded statements by dead people who wanted the peace process to fail. That of itself wouldn’t be enough for conviction in a normal court; but perhps it would in a single-judge court – where one pribcciple has allways been preservation of state interest. Someone might even be bright enough to invent evidence; perhaps a broken matchstick with GA’s DNA, found on a beach

    More intriguing is the allegation that much of GA’s interrogation was related to membership of IRA. With all the surveillance personnel and equipment available in the 70′s and 80′s didn’t throw up enough evidence,
    what sort of genius interrogator do they have at Antrim PSNI Station to drag out enough for a reasonable chance of conviction?