Can we get some things straight?

I’m getting a bit sick of reading nonsense about Loughgall.

Firstly, all that is new in the Belfast Telegraph is that the HET report is due out soon. If that report states that the IRA fired the first shot, that will simply be a regurgitation of the facts as detailed in the European Court of Human Rights judgment more than ten years ago.

It is also clear that some people have not read that judgment, and have no idea why the families were awarded compensation. It is true that the award was made because the UK failed to discharge it’s duties under Article 2 of the Convention (right to life), but that failure was nothing to do with the, frankly insane, idea that the Police and Army should have before opening fire, attempted to arrest a gang of heavily armed men with a large bomb in the bucket of a digger, who were quite quickly off the mark in spraying the scene with gunfire.

Para 94 of the judgment begins:

The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.

Paras 95 and 96 state:

For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence….The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances.

From para 114:

Even though it also appears that, as required by law, this investigation was supervised by the ICPC, an independent police monitoring authority, this cannot provide a sufficient safeguard where the investigation itself has been for all practical purposes conducted by police officers connected, albeit indirectly, with the operation under investigation.

And the Court concludes in paras 136 and 139:

The Court finds that the proceedings for investigating the use of lethal force by the security forces have been shown in this case to disclose the following shortcomings:
– a lack of independence of the investigating police officers from the security forces involved in the incident;
– a lack of public scrutiny, and information to the victims’ families of the reasons for the decision of the DPP not to prosecute any soldier;
– the inquest procedure did not allow for any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which might have been disclosed;
– the soldiers who shot the deceased could not be required to attend the inquest as witnesses;
– the non-disclosure of witness statements prior to the witnesses’ appearance at the inquest prejudiced the ability of the applicants to participate in the inquest and contributed to long adjournments in the proceedings;
– the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.
The Court finds that there has been a failure to comply with the procedural obligation imposed by Article 2 of the Convention and that there has been, in this respect, a violation of that provision.

All emphasis mine.

So, when Jeffrey Donaldson said at the time “I just can’t understand how they could conclude what they have. I think that this judgment demonstrates just how crazy the system has become and how upside down the whole process is.” I’m not really sure what part of the judgment he was referring to. The compensation was awarded for a procedural failure derived from reading articles 1 and 2 together. And why shouldn’t the families have a legitimate expectation to an independent investigation?

On this point, I do think there is a certain element of justification to the Republican argument. We should expect more from the legitimate agents of the state when exercising the state monopoly on force than we do from a gang of terrorists engaging in an illegitimate, sectarian, murder campaign. We should expect the forces of the rule of law to be above reproach. Of course demands that they calmly walk into a hail of bullets, in order that they either request that the criminal gang cease and desist, or place them under arrest are absurd. But that basis on which Kelly v UK was decided cannot really be in question in a liberal democratic state; the use of lethal force by the state must be under the controls of the values of the democratic system. However in this case, those controls have been ruled to have broken down not when the SAS opened fire, but when the events of that day were under investigation.

  • Had forgotten this. A very timely reminder.

  • Framer

    Loughgall was a case Strasbourg should have avoided judging and judging favourably not least as it brought the court into disrepute. It was not about fundamental human rights rather it was about procedures while damages should not have been paid to the families.

    It was plainly a case where Article 17 (Prohibition of abuse of rights) should have been invoked – “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

    The IRA were engaging in an attempt to deny life to another party therefore their own non-fundamental human rights should not be justiciable. The court was entitled to judge whether their own right to life had been breached which it ruled was not the case, as has HET a second time, at no little cost.

  • Mainland Ulsterman

    Investigations into these things probably should be independent of the police, the ECHR probably has a point there and I’m sure there were shortcomings. But lawyers do tend to obsess about procedures, it’s their raison d’etre. They are important but there is a bigger picture they can lose sight of. I think that’s what Donaldson was referring to.

    In particular here the ECHR, while being understandably scrupulous in its requirements of the inquiry process, seems to have been much less scrupulous in its concern for overall fairness, with the farcical result that of the families of terrorists killed in flagrante delicto receiving compensation payments. It’s the kind of thing that makes human rights law look perverse and ridiculous.

    I’m also not sure how much account was taken by the ECHR, in expecting a transparent inquiry process, of the lethal threat under which the terrorists hold the lives of anyone who crosses them, including routine murdering of members of the security forces and routine intimidation of witnesses.

    But the security forces could have done themselves a favour by having completely independent inquiries into state killings. There is no suggestion that the inquiry here was anything less than correct in its findings. But justice has to be seen to be done too and I guess that’s the ECHR’s point. A minor one in the big scheme of things though.

  • Mick Fealty

    I agree with Michael. Rigour is critical. And the State *must* be subject to the law. In the letter as well as the spirit. It is good to have such a precise understanding where the fault lay in law.

    The problem is not with the law, the fault lies in how the legal process has been so profoundly misrepresented in the public domain.

  • Alias

    The farce of the police investigating the police has long been pointed out in NI. But it has also long been pointed out that the corruption of genuine inquiries into alleged transgressions of legality transcends the parameters of the particular agency concerned. In this case, that the alleged shoot-to-kill practice was a policy sanctioned by the British government.

    There was other problems with treating security as internal to an agency when there are meta-agencies involved in directing them such as MI5. There is no doubt that the government nobbled any prosect of genuine inquiry with the Inquiries Act 2005 (just as Judge Cory).

    For those reasons, it matters little whether or not the police investigate the police, the military investigates the military, or some other state-appointed agent investigates instead since the outcome is likely to be the same, i.e. it was just “a few bad apples spoiling a beautiful bowl of fruit but lessons have been duly learned and it’ll never happen again, promise.”

    However, in this case, the SAS would have had little option other than to use lethal force since to do otherwise would have put their own lives in grave danger. No doubt their would have been other ways of arresting them but once the decision was made to let this compromised operation go ahead then that was a de jure death sentence for the PIRA gang concerned.

    All about clearing the way for the ‘historic compromise’ and all that…

  • Cynic2

    “the fault lies in how the legal process has been so profoundly misrepresented in the public domain”

    Which is because:

    1 SF misrepresent it for political purposes

    2 Unionist don’t engage in intellectual debate and don’t put the effort in to exposing the real issues

    3 Journalists in MSM don’t have the time or resources to explain a complex legal judgement that also runs against the ‘he says she says’ knockabout meme of political reporting here and the demands for balance in a 90 sec TV news slot

  • Cynic2

    PS we used to rely on newspapers to plug this gap with more erudite analysis – but have you seen them these days? Scary.

  • Michael Shilliday

    Journalists in MSM don’t have the time or resources to explain a complex legal judgement

    I’m sorry but that is nonsense. Journalists don’t have the time or resources to spend an hour familiarising themselves with the facts of what they are reporting? There is no reason WHATSOEVER that a journalist can’t spend 5 minutes looking up the case, another 5 looking at the last 2 paragraphs to fine out what the conclusion of the court was and 50 mins max reading the 30 or so paragraphs which set out the reasoning to the one argument they accepted.

  • TwilightoftheProds

    This is where Slugger comes in to its own…bloggers, in this case, Shilliday point out that the BT article isn’t really much in the way of news, and almost completely ignored (there was a tiny reference) the Courts actual decision on the article two violation. I guess they thought it was too complicated for us readers….but it meant that the ‘new info’ that the Provos fired first was likely to be misinterpreted by the readers as undercutting that decision.

    then Cynic2 hits the nail on the head with how this situation comes to pass. Stimulus-response debate and reporting that skips along the surface like a kid’s pebble. Good reporters have the ability and networks to ferret out the facts, but somewhere along the line a filter is filleting out any analysis. It needs to be put back in, cos the blogosphere will never have the ability to dredge up initial info. Until then our political level of discourse will remain at a level of ping ponging press releases.

  • Mick Fealty

    Amen to that last. Research costs money and/or time. None of us have infinite amounts of either…

  • Cynic2

    Michael

    Have you seen the quality of the Bel Tel these days, as just one example?

    It’s research seems to consist of one hack hamemring out as many FOI requests as it can then pouring over them to generate half backed ‘shock’ stories.

    The core of skilled journos just arent there any more and thetre is no money to pay them. All the papers lose money hand over fist or are clinging on by their fingertips. Even worse, I am afraid, a ‘Politican steals and lies’ story genrally wont get a look in against an attractive young woman with a large chest how has ‘miraculously’ landed a place on some third rate talent contest. Her story and cleveage will sell far more papers

  • Peter Taylor’s description of the three RUC officers in the barracks differs from the ECHR report:

    Taylor, May 8, 2001: “Three Special Branch officers from the RUC’s specialist anti-terrorist unit volunteered to remain inside the normally sleepy station as decoys to give the appearance of normality whilst the IRA did its ‘recce’. ‘Matt’, a veteran of such covert operations, was one of them.”

    The ECHR report gives the impression that local officers were used ie those who normally were in charge there:

    13.  Three members of the RUC, Constables A, B and C, were positioned inside the RUC station. The RUC station, which operated on a part-time basis only, was opened as normal at 9 a.m. on 8 May 1987. Police Constable A was in charge of the station, with B and C assisting him in the running of the station. The station was closed at 11 a.m., re-opened at 5 p.m. and closed again at 7 p.m.

    The attack also appears to have taken place shortly after the station would have been expected to be closed and the officers departed. Under such circumstances is it likely that the IRA unit opened fire first – or at all?

  • Mainland Ulsterman

    I agree with the points made about the need for journalists to do their research. Hate to play the ex lawyer card again but the misreporting or partial reporting of legal issues in the mainstream media has always been an issue.

    There is no excuse though – there are always plenty of lawyers happy to help journalists interpret legal judgments, which can trip people up. It’s what’s NOT said in the judgment that is the areas lawyers may get but a non-lawyer will be likely to miss, a bit like any specialist area.

    So hacks: you’re not expected to be experts in everything, but we do expect you to be able to call upon expertise and pull it together into readable form. Like every other walk of life, I suspect time pressure is getting more and more onerous and there is a temptation to get out something which is ‘good enough’ reporting. With complex stuff like legal judgments, they should have a warning light flashing: I may need some expert help.

  • Mainland Ulsterman

    On a separate more philosophical point though – and as any law graduate will testify as they will spent many hours reading about it – law and morality are of course not the same thing. When we look at how legal judgments are received in the wider population, it’s important to recognise that things that are technically legally correct (e.g. a killer getting off because his lawyer manages to find a minor procedural flaw in the prosecution) can offend people morally, even if they fully understand and appreciate the legal reasons for the judgment. It is quite normal and we shouldn’t be too damning of people in wider society who are morally outraged by judgments like that over Loughgall. They are entitled to be morally outraged by the result – to which the legal process has to be blind – while still accepting the legal process did what it was supposed to do. So don’t be too tough on Donaldson and others, their response was not wrong or unreasoned.

  • Michael Shilliday

    The state of the BT today isn’t really the point. I looked up the coverage of the judgment when it was handed down in May 2001, and it is no better. That coverage is where I pulled the Donaldson quote from. The Belfast Telegraph has, as far as I can tell, NEVER ONCE accurately reported the reason why the families were awarded compensation. It has NEVER ONCE reported that the court found as a matter of undisputed fact that the IRA fired the first shots at Loughgall.

    That just ins’t good enough for the mainstream media, and it doesn’t take infinite amounts of time and effort, particularly at the time in relation to the compensation. All it required was a little bit of directed reading, which is frankly what journalists are paid to do.

  • Cynic2

    “which is frankly what journalists are paid to do”

    If you had said “which is frankly what journalists should be paid to do” I would be 100% in agreement with you. In the current dispensation they arent.

    Furtehrmore in NI sectarian politics is such a turn off that any sensiobel members of the community – and the amore intelligent – ignore it all as incapable of reforrm

  • Mick Fealty

    I think we to get thee to a newsroom Michael.

  • Michael Shilliday

    They wouldn’t like me very much.

  • Cynic2

    The Journos might – the proprietors and editors wouldnt