Scotland’s Commissioner to investigate Gerry Kelly’s attendance and speech at Castlederg parade

With the Northern Ireland Assembly Commissioner for Standards, Douglas Bain, having recused himself from the investigation of the complaints that Sinn Féin MLA Gerry Kelly’s attendance and speech at the controversial Castlederg Parade in August this year was in breach of the code of conduct for MLAs “by glorifying terrorism and damaging community relations”  [Is he washing his hair? – Ed]  He’s a member of the Parades Commission…  ANYhoo…  As the BBC report, the NI Assembly today agreed to appoint Scotland’s Commissioner for Ethical Standards in Public Life, Stuart Allan, as an acting commissioner for the purposes of investigating “any complaint arising from the public assemblies in Castlederg on 11th August 2013”.

In the meantime, the NI Assembly Committee on Standards and Privileges have published their report on a complaint about comments made by Sinn Féin MLA Alex Maskey on the UTV Live Tonight programme on 14 January 2013 – following an investigation by the Northern Ireland Assembly Commissioner.  Here’s their conclusion

15. The Committee has given careful consideration to the evidence gathered by the Commissioner and the reasoning behind his conclusions. The Committee has given particular consideration to the circumstances of the public disorder that evening, the broader context to Mr Maskey’s comments and Counsel’s opinion. Having taken all of these matters into consideration the Committee is satisfied that Mr Maskey has not breached the Code of Conduct. The complaint is not upheld.

16. While the Committee recognises that in the context that Mr Maskey made his remarks, and only in this context, he did not breach the Code of Conduct according to the letter of the law, it wishes to highlight the Commissioner’s comments that Mr Maskey’s comments “were far from prudent”.

17. The Committee believes that the language used by Mr Maskey could have been interpreted by some as inflammatory and could have potentially exacerbated an already tense atmosphere at that time.

18. The Committee would therefore advise Mr Maskey, and all other Members, to exercise great caution in the language that they use when speaking as public representatives, particularly at times when public disorder is occurring or there is the risk that it might occur. [added emphasis]

Interestingly, and perhaps relevant to the Castlederg complaints, during his investigation into the complaint against Alex Maskey, MLA, the Northern Ireland Assembly Commissioner sought Counsel’s opinion “to determine whether the actions that Mr Maskey said he would have taken, in the given circumstances, would have amounted to a criminal act”.  From the Committee’s report

6. The Commissioner considered that the key issue in this complaint was whether the remarks in question were in breach of the public duty principle in the Code which states that Members have a duty to uphold the law and to act on all occasions in accordance with the public trust placed in them. The Commissioner stated that it was therefore crucial to determine whether the actions that Mr Maskey said he would have taken, in the given circumstances, would have amounted to a criminal act.

7. In order to inform his view on this matter, the Commissioner sought Counsel’s opinion. Counsel’s opinion is set out in document 6 of the Commissioner’s report. In essence, the opinion states that even when the throwing of stones results in either personal injury or damage to property it does not invariably follow that there has been a criminal act. There is a defence, in prescribed circumstances, of prevention of crime and protection of property to a person prosecuted for throwing stones. Counsel advised that it was not possible to say determinatively that any of the defences engaged in the circumstances of this matter would definitely have succeeded if prosecution of the stone throwers had followed. Nonetheless it is Counsel’s opinion that if a jury was satisfied that the residents had no other option to protect their homes but to throw stones, this would point towards the defences being successfully made out.

8. Given the facts established, and the advice received, the Commissioner was not satisfied that in the part of the interview that was the subject of the complaint Mr Maskey was condoning or supporting an act, namely stone throwing, that would, in the circumstances, have been criminal conduct. Consequently, the Commissioner was not satisfied that Mr Maskey failed to comply with his duty under the public duty principle to uphold the law. [added emphasis]

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  • FDM

    Pete and an article about SF.

    Some things change.

    Some things remain the same.

  • ArdoyneUnionist

    Remind me Kelly was the main speaker at the unveiling of a new illegal IRA memorial, and after the shinners/provos telling all in sundry that they must abide by the law.

  • redstar2011

    Yeah ardoyneunionist- that was the parade that you lot objected to because it glorified terrorists but had no probs with UVF parade recently and another one this weekend!!!!

    Laughable!!!

  • Pete Baker

    Focus, gentlemen…

  • FDM

    Focus Pete?

    Rather than FOCUS shouldn’t that just be ready, AIM, fire @SF?

    Its what happens when you have a long stream of mono-topic rants. People get bored.

    Hence they find something else to debate/talk/argue about.

    And there we have it.

  • Pete Baker

    “Rather than FOCUS shouldn’t that just be ready, AIM, fire @SF?

    Its what happens when you have a long stream of mono-topic rants.”

    FDM

    It might help if you actually read the original post…

  • Barnshee

    ” In essence, the opinion states that even when the throwing of stones results in either personal injury or damage to property it does not invariably follow that there has been a criminal act”

    There you go lads -convictions overturned on the spot

    (where do they get them from)

  • Mick Fealty

    If you look at the standard being imposed in the Maskey case, and then look at Kelly’s speech, there is at least grounds for the DPP investigating a charge under the Terroris glorification Act (a bad and practically unsustainable law, though it may very well be: http://goo.gl/gj0C2B).

    There’d be no straightforward defence for Gerry against the charge that he was “praising or celebrating” terrorism in a way that might encourage others to commit a terrorist act, other than an appeal to the power of the rhetoric elsewhere in the speech where he argues that terrorism was right then, but is wrong now.

    There is not really a case in law that can reasonably be made that he was in fact bidding to prevent greater harm.

  • Mark

    When it comes to Republicans , it seems laws are just made up willy nilly .

    What’s next ? The anti wearing of dark shades at Easter Act 2013 .

    Do you really think Gerry Kelly was bidding ( ?) trying to cause greater harm / encourage other Republicans to continue their war when he spoke at Castlederg ?

  • cynic2

    “When it comes to Republicans , it seems laws are just made up willy nilly .”

    With lawyers one gets the opinion one pays for and if you don’t like get another lawyer who will give you a different bone. The bottom line is though that lawyers advise and represent – others must DECIDE and at Stormont that is where the problem comes in – especially with the numptie count on most of the Committees

    Its great too to hear them today lamenting that “power sharing is in crisis”. Google translates English – Shinner turns that into as ‘we are not getting it all our own way’

  • cynic2

    “the DPP investigating a charge”

    Surely that’s a matter for the Police to investigate not the DPP Baggot is an honest man but with Kelly on the Policing Board and the Pastor’s tenure hanging on a thread after all the recent shambles will he dare?

    After GFA we were assured we were moving to a society governed by laws – yeah right.

  • Barnshee

    Barrister give “opinions” –the place for decisions is the courts -let them decide

  • FuturePhysicist

    If you look at the standard being imposed in the Maskey case, and then look at Kelly’s speech, there is at least grounds for the DPP investigating a charge under the Terrorist glorification Act (a bad and practically unsustainable law, though it may very well be: http://goo.gl/gj0C2B).

    There’d be no straightforward defence for Gerry against the charge that he was “praising or celebrating” terrorism in a way that might encourage others to commit a terrorist act, other than an appeal to the power of the rhetoric elsewhere in the speech where he argues that terrorism was right then, but is wrong now.

    There is not really a case in law that can reasonably be made that he was in fact bidding to prevent greater harm.

    It simply was/is a soapbox to issue his party’s propaganda to the masses after expediently getting through the “martyred dead” formalities. I do wonder though if these attacks against Kelly are done in the name of the inner peace of victims or the “cultural war effort” against Sinn Féin which does little more than agitate the agitated.

  • cynic2

    Has Slugger closed down this week?

  • BarneyT

    Sf are walking a tight rope between their past and the fact they govern within a British jurisdiction and set of institutions. That’s a hard balancing act for and anti treaty movement when you consider the above and the strengthening of the new IRA. Kelly is playing his hand here to show the party is still kind of, the same old party it used to be to give accusations of administering British justice a straight arm. It says, we know what we’ve done but can you just bear with us. If sf denied the republican past they’d be wiped out as that is a bridge too far…,, hence the juggling