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.
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.