The McGeough case raises worrying questions about the peace process. The SDLP are right to raise them

I cheer at the story of Sammy Brush’s self defence at the time and am of course very glad he survived. Gerry McGeough is very lucky to be alive. But the McGeough case appears to create a new doctrine of the peace process as it applies to terrorist crimes. Does it not greatly diminish the amnesty effect of the Good Friday Agreement – at least in theory and expose the exercise of very wide discretion by the Secretary of State ?

The royal prerogative of mercy did not apply to McGeough. He was not a prisoner in 1998.  He had been living openly in Co Tyrone for two years,  having served sentences in Germany and the US – which being foreign, were unaffected by the Agreement . At home though, the file on the Brush attempted murder was still open.  The proverbial dogs in the streets know – or thought they knew – that paramilitaries suspected of terrorist crimes committed before 1998 would be left alone. And nearly everything that has happened since that date confirms that view. Except the arrest of Gerry McGeough.

Why did the police  wait until 2007 to arrest him? Was the unspoken reason connected with republican dissidence? Is the wider exercise of  ministerial discretion now being exercised in the opposite direction- in favour of prosecution?

In overturning McGeough’s application for judicial review of his 20 year sentence the judge came to a decision which in my ignorance took me aback. He ruled

the Respondent submits that in the exercise of what was asserted to be a pure unbounded discretion for the purpose of correcting a small number of anomalies in the interests of securing a broader political resolution the Secretary of State is entitled to make fine judgments about the issuing of an RPM (Royal prerogative of mercy). The political background to those judgments underscores the fact that this exercise of executive power should, generally, be insulated from the supervisory scrutiny of the Court.

Discussion

[40] The exercise of the RPM by the Secretary of State in the comparator cases relied upon by the applicant was made at a different time and context. Through correspondence from the CSO the current Secretary of State has asserted his view that the applicant is not eligible for the RPM. Nor, in any event does he regard the comparators as being in a relevantly analogous position.

[41] The release of prisoners by an earlier Secretary of State over a decade ago in the context of that time inevitably will have involved considerations of policy. The refusal by the current Secretary of State in 2011 to exercise the RPM to remit the applicants lawfully imposed sentence is a separate exercise.

The SOS’s contention that the applicant is not eligible for the RPM is hardly surprising. The applicant’s contention of unequal treatment is in my view untenable. First, it overlooks the consideration that the exercise of the pure discretionary power was by another SOS a decade earlier and in a different context. It is noteworthy that in Corden Kerr J acknowledged that it was open to the SOS to allow political considerations to play a part.

The judge seems to be saying that the two year sentence applied to “considerations of policy” i.e. that as we know, they were political, in order to support  the ceasefires and the peace process in the aftermath of the GFA. But  these circumstances do not necessarily apply now. So when did ” circumstances” change?

Now of course the judge had to deal with the case before him. Presumably he cannot ask out loud why many more old terrorist cases have not come before the courts since 1998. His ruling does not dispose of the suspicion that McGeough was arrested because as an independent republican  he lacked the protection of Sinn Fein affiliation. There is a case for saying that his arrest in 2007 was as political as the Sentences Act of 1998 – only the circumstances have changed and the result is now the opposite – conviction rather than release or no action taken.

What will the effect of the judicial decision on former IRA or loyalist paramilitaries who still have a case to answer? Will McGeough set a precedent?  Or will the Historic Enquiries team continue to draw a blank?

It seems to me perfectly proper for the SDLP or anyone else to raise these as HR issues.

The case of Marian Price is different.  She is being held in connection with the Massarene Barracks murders.  Are her conditions in prison adequate? Does she have proper access to a lawyer and medical supervision and is she allowed visits?  I would guess she might have a human rights case if these conditions do not apply. Being held because she represents an increased threat is a different factor and smacks of internment but the DPP has stated the case against her is being pursued..

Criticism of the SDLP for making human rights points in these cases, whether they are entirely well founded or not, is not well founded. It implies that HR complaints should only be made for political reasons, which is quite wrong.  To accuse the SDLP of currying favour with dissident republicans at SF’s expense is unfair and bizarre. Dissident or independent republicans have rights.

The McGeough arrest and prosecution is odd because here was an independent republican who could be picked off because her did not SF protection or cover. The case to answer is this: why have not lots of old Provos been picked up in car parks down the years since the GFA and put on trial and sentenced to serve their two years?

Can we guess the answer?