On the Historical Investigations Unit…

Mick has noted the reaction to David Ford’s comment to David Funston that the Historical Investigations Unit “might at best produce one or two prosecutions,” which came a few weeks after a related piece by Lyra McKee, but this has been the elephant in the room ever since the HIU was proposed as part of the Stormont House Agreement – indeed, since the inception of the Historical Enquries Team.

The key problem is that the police’s powers are limited, not only by the Police and Criminal Evidence (NI) Order 1989 but by natural justice.  In short, Article 26 states that you may not be arrested unless a police officer has “reasonable grounds” to suspect that you are guilty of a particular offence.

On top of that, the police don’t have the power to compel anyone to give a witness statement.

The danger is that the Historical Investigations Unit will be unable to obtain much new evidence – forensic evidence this far on will be hard to obtain, and unless potential witnesses are willing to be interviewed and make a statement, the few prosecutions predicted by David Ford may be accurate.

The victims deserve better – it isn’t justice, but unless witnesses are willing to come forward, there might never be enough evidence to allow the HIU to arrest anyone and interview them under caution – for that reasonable suspicion, there needs to be something stronger than the word of an informer that a person was linked.

In addition, while all suspects are cautioned that “it may harm [their] defence if [they] do not mention when questioned something which [they] later rely on in court,” it still falls to the police (or in this case, the HIU) to establish to the satisfaction of the Public Prosecution Service that there is sufficient evidence for a reasonable prospect of conviction.  Even those actually prosecuted aren’t obliged to incriminate themselves or anybody else, which is why Mary McArdle, the only person convicted in connection to the murder of Mary Travers, couldn’t be rearrested or otherwise forced to be interviewed.

So that is the elephant in the room.  Unless new forensic evidence is uncovered, witnesses come forward willing to give evidence in court – the one place witnesses can be compelled to appear and give evidence – or, as is possible, the HIU discovers that the RUC failed to investigate a crime properly despite strong evidence with a decent prospect of conviction already existing, there will be few prosecutions.

So how do the victims and their relatives get any form of closure?

Well, for a start, the HIU has to be allowed to play out in full.  Victims and relatives deserve to know that the murders and other attacks have been investigated properly to the full extent possible, and after these controversies, the HIU is going to have to be seen to be exhaustive in its investigations in order to build confidence rather than being seen as a paper-shuffling exercise.

So what of those who will not agree to be interviewed by the HIU?

Suppose that statements made to the proposed Independent Commission for Information Retrieval were to be passed on to the HIU to aid in their investigations.  That would in principle result in convictions.

However, if witnesses and perpetrators are not prepared to give evidence on the record directly to the police, they won’t be willing to give the information to ICIR if that information is going to be passed to the HIU anyway.

So not only would the victims be denied justice, they wouldn’t get the truth at all.  Further issues arise with whether statements to ICIR would be anonymised before being passed to victims, because while victims would (rightly in my view) like to know who was responsible, there may be more information forthcoming if it were anonymous.

And that is the awful prospect that victims and their relatives face.

In Northern Ireland in 2015, the choice may be between the truth and closure without the justice of criminal conviction, or the worse injustice of permanent silence and never knowing.

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  • Lorcs1

    I think the Boston Tapes affair has put paid to any chance of most victims ever getting any sort of closure. Would anyone involved ever give up any information even under the promise of immunity?

    Also, the article covers paramilitary cases. What about victs of state violence? Would the government release alls its records from the troubles? Would it make its soldiers/agents/politicians give evidence?

    I think over the next generation, a large part of those involved in the events of the troubles will pass on, and with it the chance of any victims ever receiving any information/closure/justice. If theres a decision to be made, it’ll need to be soon.

  • Sergiogiorgio

    The time for a decision has long since passed Lorcs. Nobody in government, neither local nor national, wants this Pandora’s box opened. It’s all an exercise in window dressing. My heart goes out the families of the victims. Not enough that they lost their loved ones, but their grief is handily used by our non sitting ministers for political capital.

  • chrisjones2

    Agree. The victims and their families are just exploited and re-victimised – most of all by those politicians purporting to represent them but who in reality are just vote milkers

  • Catcher in the Rye

    Complaints that the police in the form of the HIU do not have sufficient powers to arrest people or compel witnesses to come forward seem to ignore the fact that the various legal provisions designed to protect human rights are where these limitations lie. How could we possibly have a situation where the police are allowed to arrest people without clear grounds for suspicion; and exactly how could witnesses be “compelled” to do anything they don’t want to do ?

    The real elephant in the room here is this. Victims are faced with a stark, and distressing, choice. They can either sign up to an amnesty which provides some hope that they might find out the truth about what happened to their loved ones; they might even get an apology. Or they can put their faith in the only legal way to bring prosecutions, namely through the HIU. Anyone suggesting there is a third way is, I’m afraid, guilty of selling false hopes to people who have been through deeply traumatic experiences. And it’s an indictment of our political class that nobody feels able to state this truth in public.

  • Catcher in the Rye

    The government doesn’t want the truth coming about about what soldiers did, and that suits the Shinners down to the ground; they don’t really want the truth coming out either.

  • NotNowJohnny

    The purpose of the HIU is to investigate. It is not to deliver justice (although it has the capacity to in a number of cases – a very small number in Minister Ford’s view). Those selling it or promoting it as a (or ‘the’) mechanism to deliver justice for victims do victims a disservice.

  • chrisjones2

    …or what the Shinners did as it might upset “the Process” (TM)

  • aquifer

    Better spend the money revealing the methods used by paramilitaries to plan murder, how these groups spied on people and recruited young people to do their bidding.

    Paramilitaries have killed people for revealing this information, so they must regard it as critical to their operations and damaging to their public relations.

  • Kevin Breslin

    Why waste money on public knowledge … you can easily Youtube a documentary on Irish republican dissidents youth organisation where their leaders are milking fears around Bloody Sunday 2 to draw up recruits.
    The big problem is there may be so much prejudice about what these organisations do to get recruits that these people looking for greater tricks techniques, simply don’t believe the truth, even rejecting good intelligence and the most obvious motivations searching for something that has ritualistic Black Masses with Devil Worship and Psychoactive Drugs.