Dealing with the Past. The lawyers must join John Larkin in speaking out

The first thing to remember about John Larkin is that he’s an advocate.  Barristers make ingenious cases whether they believe in them or not.  In 2002, he was the Peter Robinson’s counsel before the law lords arguing – unsuccessfully as it happens – that the election of the FMDFM was legally invalid after the Alliance party temporarily changed designation and arguably saved the Assembly and perhaps the Agreement. It was a good thing that Larkin lost and he might well privately agree.   Last year he sought to prosecute Peter Hain for being very rude about a judge. Today ironically Larkin and Hain are now the same side in recommending an end to Troubles prosecutions.

It’s hardly surprising that John Larkin has acquired a reputation as a loose cannon, for trying out an idea  to jolt the massed ranks of  the complacent out of their well-worn tramlines. Nor does he seem too bothered by consistency.

Liam Clarke has drawn attention to Larkin’s recent change of heart after he had earlier championed  inquests as a forum for helping families to get to the truth of how their relatives were killed.  In the Belfast Telegraph today Clarke has also written a fantasy account of how the Larkin idea might develop  after an Act of Completion  ended prosecutions. Appeals would still follow to the Supreme Court, the European Court of Human Rights and perhaps more doubtfully the International Criminal Court.

The gap between the status quo over prosecutions and calling a halt to them is not as wide as the sound and fury implies.  David Davis the right wing senior Conservative MP, no friend of any terrorist and a former SAS officer makes the measured case in the Guardian:.

The Good Friday agreement incorporates the 1997 arms decommissioning law, which states that weapons surrendered by paramilitary groups cannot be forensically tested for use in criminal prosecutions. Similarly, any information that leads to the discovery of the “The Disappeared” – the bodies of people murdered by paramilitary groups and buried in unknown locations – can only be used to identify remains, not in criminal trials.

This means that crucial forensic evidence, pivotal to securing convictions, cannot even be obtained, let alone used in court. As a result, the chance of victims’ families getting justice in the form of a criminal conviction is low and getting lower.

However, it is hard to see what can be achieved for victims’ families by summoning former soldiers, many just teenagers in the 1970s. With forensic evidence almost non-existent and 40-year-old witness accounts usually unreliable, the prospects of securing convictions look remote at best. Any investigation, inquest or inquiry would be a fruitless exercise in opening up old wounds.

A decade ago I was approached by the Police Service of Northern Ireland to give evidence in a trial. The defendant stood accused of being an IRA targeter – a role crucial to the success of any terrorist campaign. The PSNI wanted me to sign an affidavit, and go to court to give evidence in person.

The IRA had a track record of intimidating witnesses to stop trials, so the PSNI was anxious about my appearing there. After years of preparation the trial finally took place. The defendant was convicted. Under the terms of the Good Friday agreement, he was then immediately released. This was intensely irritating, but entirely understandable. For his crimes, the targeter should have spent the rest of his life in jail. Yet in the broader context of keeping the peace in Northern Ireland, releasing him was the right thing to do.

I have had my differences with Larkin, but on this occasion his is the course of wisdom. No one is asking victims’ families to forgive, and certainly not to forget. However, there comes a time when we should accept that no matter how many more investigations we hold, or how many witnesses we call, or how much money we spend , they are unlikely to achieve anything more of use. That time has come.

The key argument is that victims families and the rest of us  stand a better chance of getting closer to the truth than by holding out hope that the courts can deal with it. Is this actually right? Much would depend on  the extent of access to the archives.

John Larkin is pretty much unique in Northern Ireland,  an  man of academic bent seized by ideas and even rarer, a  lawyer prepared to speak out. This time he sounds as if he’s not a hired gun but means what he says sincerely.  But there is a danger in his perceived isolation and his brothers and sisters whose profession he heads should come to his aid. He is the Attorney General whose duty, now that he’s raised it, is to go further and gather opinion to promote  a sensible  debate once the initial reaction has died down.  Privately he is not  alone.  It’s time for the  lawyers of Northern Ireland who kept their heads down throughout the Troubles to come out of their holes and take part.

The next step is for senior  lawyers like Mr Larkin and the DPP Barra McGrory whose job it is to weigh the public interest  to provide analyses of the chances of further prosecutions based on the HET reports. McGrory has already called for  decisions which leaves further prosecutions an open question  . 

I think society has got to make a choice. Either it decides now to go down the route, the very difficult route, of determining that we are going to forego the investigation and prosecution of the past in favour of embedding the political institutions or the peace process, or between that and deciding whether or not the peace process is best served by continuing to prosecute the past,” he said.

At the same time as part of the Haass process or otherwise,  the opening of archives should be freely discussed.  Which  archives and on what terms?

To satisfy the reasonable demands of clarification, would  prosecutions have to cease or would  the de Silva terms of reference suffice?

“Drawing from the extensive investigations that have already taken place, to produce a full public account of any involvement by the Army, the Royal Ulster Constabulary, the Security Service or other UK Government body in the murder of Patrick Finucane.

The Review will have full access to the Stevens archive and all Government papers, including any Ministry of Defence, Security Service, Home Office, Cabinet Office or Northern Ireland Office files that you believe are relevant. The account should be provided to the Secretary of State for Northern Ireland by December 2012, for the purpose of its publication.”

If the gap between the status quo and an end to prosecutions is not so wide, could it just be that these archives could be opened without legally ending prosecutions? We need technical answers.

Over to you too, Dominic Grieve, the UK Attorney General.

 

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  • Its likely that John Larkin was expressing his own views, possibly his advisors views and I would suggest the Law Library.
    The views of any professional….lawyer, economist, health professional should be detached. Necessarily the views of a Politician and Joe Public are different.
    But if he resigns…and in many ways his statement reads like a resignation….then the successor is likely to hold views that are not very much different.
    To be clear, I think he is saying two very different things.
    On the subject of Trial and Conviction, it sems highly unlikely that there will be anybody from any background, Republican, Unionist or Britiish who will be prosecuted or even convicted for anything.
    To pretend otherwise is just cruel to victims.
    There might be some closure in HET teams deciding on a conclusion to an investigation but really there is no hope of anyone appearing in a court room over McGurks, Kingsmills and Bloody Sunday (to name but three hopefully balanced atrocities).
    To that very precise…legalistic….point …I think John Larkin is right.
    Even without the politics and the alleged primacy of the Good Friday Agreement, any decent lawyer would submit, the passage of time, faulty forensics, poor memories, deceased and infirm witnesses, secret documentation…and any decent judge would throw the case out.
    It might have been possible in 1998….but no way would anyone on the three sides of the Conflict have signed up to it. Creative Ambiguity …and what a false God it is….obliges us to ignore the fact that there has been an undeclared amnesty.
    Does anyone doubt it?
    To their credit the “No” side in 1998 warned about this.
    Those of us on the “Yes” side cant claim that we thought it to be different.
    Arguably the undeclared amnesty guaranteed the behaviour of IRA-Sinn Fein in the immediate years afterwards but after 2007 and becoming the main nationalist party, the prospect of prosecutions was passed.
    Where Larkin seems to go too far…beyond his brief …is to talk about “drawing” a line. Thats not his call., Thats a call for the victims. Some have. Some will. Some will never draw a line. THEIR call?

    We have no right to talk about Broader Truth.
    We have mostly Peace. But its an untidy end.
    None of the three sides, now on Stormont benches or medal-holding military-police or OBE civil servants in superannuated retirement want Enquiries.
    Some political parties…will genuinely find that …offensive.
    But the loudest shouts will come from political parties…who will shamefully pretend to be offended on behalf of “their” side.

    Depressingly we are where we are. We let Post-Conflict pass us by. If it was a Victors Peace, the war criminals (on one side of course) could be prosecuted right into their 90s.
    But an “Agreed Peace” will never bring prosecutions across the board.

    Its not so much about anyone calling for a line to be drawn.
    The line was drawn years ago.

  • willieric

    Excellent post fitzie. My point is simpler. The pop of NI is approx. 1,800,000. If a public meeting of victims and their families were called it would struggle to fill the waterfront hall. The tail is wagging the dog in this country, as was ever the case. Everyone who has lived in NI is a victim, some more victimised than others.
    I suggest that the fools on the hill arrange for a referendum on the main suggestion, and perhaps research opinions on the viability of a genuine opposition in Stormont.

  • David Crookes

    Larkin is talking sense. Whether you call it an amnesty or not doesn’t matter. There is an obscene arbitrariness about the idea of hoking away at the past for the next forty years. Everyone knows what will happen. Those with organizational muscle will get some redress, and those without will get none. Above all, the rising generation will be forced to pay in money and boredom and poisoned civic relationships for the deeds of their grandparents. Journalists will emotionally wind up readers of their own ‘sort’, and lawyers will get even bigger yachts.

    Move on. Why must we pollute the next forty years? In forty years everyone with a directly troubles-related grievance will be dead.

  • Well…Mr Crookes has a point of course.
    But again, I dont think he …like Larkin…can simply say “move on”.
    I am not of course saying that Victims…and some are more “reasonable ” than others. …have a veto.
    But they have earned the right to be “unreasonable”.
    We have the bizarre situation where some victims like Alan McBride mor the late Mrs McCartan are universally admired.
    And others, who are held in almost contempt by one side or the other.
    Trauma is strange…affects people individually…some cope better but more likely if you lived in West Belfast than North Down. More likely to affect a police officer than a librarian.
    In terms of numbers….two years ago, I heard someone say that only 600,000 people then alive had lived thru or substantially lived thru the Troubles.
    Necassarily numbers decline. Wounds heal ….or fester.

    But really there are very few mysteries remaining.
    Bloody Sunday really did happen in much the way the relatives said.
    There WAS collusion.
    There was a force within a force.
    There was mass killing by car bomb.
    But realistically the fate of most of nearly 4,000 people is known.
    And for the remainder….let us say 1,000….their killers can be named, or their likely killers.
    It is not nearly as big a job or as expensive as people claim.

  • @Brian,

    Excellent post. The basic problem stems from a confusion by London as to which of two fundamental counter-terrorism strategies to apply to Northern Ireland. One school claims that terrorism should be treated as a crime and pursued through the courts. The other says that it is a form of insurgency or warfare and to be countered through the security forces. The legal approach has the advantage of reducing damage to non-involved civilians. The problem was that the criminal justice system was designed to deal with criminals motivated by a profit motive or ordinary murderers with personal motives, not to deal with a significant portion of the population rebelling for political reasons. Britain switched over to the legal strategy in 1976 and made the RUC the primary security force with the army in an auxiliary position. Then during the peace process London reversed itself and acted as if all the paramilitary prisoners were detainees or prisoners of war rather than convicted felons. The paramilitaries also changed their characters during The Troubles. During the mid-1970s the loyalist groups became mainly criminal protection and drug dealing rackets who did the odd reprisal murder. This then changed again in the early 1990s. After the final ceasefire the republican groups became mainly criminal organizations.

    So in 2013 should London suddenly reverse itself again and deal with this as a legal matter? One possibility would be to allow individuals to pursue wrongful death claims under civil law for monetary damages. The problem is that most ordinary terrorists doing the killings are not financially well off. Except for those who can prove that some terrorist godfather was connected to the murders, victims will not collect much. Just look at the Nicole Simpson and Ron Brown families in the U.S. who are still waiting to collect much from O.J. Simpson. If London wanted to pursue this route, special legislation comparable to the American RICCO law would have to be passed to allow criminally-acquired assets to be seized.

  • Alias

    “This means that crucial forensic evidence, pivotal to securing convictions, cannot even be obtained, let alone used in court. As a result, the chance of victims’ families getting justice in the form of a criminal conviction is low and getting lower.”

    Those making that case should support it by showing the exact percentage of successful prosecutions for terrorist murders in Northern Ireland where ballistics evidence was “crucial” to conviction. It would then be possible to make an informed opinion about the percentage of cases that could not be process through the criminal justice system due to the State deliberately destroying evidence of crime. Is it 2% of cases or 20%?

    The fact that they don’t have any figures to show indicates that it is simply used a propaganda to enable the State to continue to protect the guilty.

  • Randal Brown

    The Dayton Accords of 1995, which brought to an end the war in Bosnia, granted amnesty to those involved in the violence, with exception of perpetrators of atrocities which amounted to violations of international law (war crimes). Consequently, the pursuit of Karadic, Mladic, etc, continued. The AG’s proposal amounts a de facto amnesty, but exceptions are required. It is popularly believed that at the head of the chains of command responsible for the murders of, inter alia, Patrick Finucane and Jean McConville, there stood figures who held at the time, or hold today, high office in public life. Such matters should not go uninvestigated. Further, there remains the possibility that those responsible can take advantage of a de facto self-serving amnesty on the pattern of Chilean amnesty of 1978 which was ratified by the courts of that country, granting immunity to General Pinochet and his Junta. There is a real danger that the rule of law within the UK would be seriously undermined, as it was in Bosnia and Chile, if such matters are not pursued rigorously through the courts. It is obvious that, in the Finucane and McConville cases at least, this has not happened, and there is evidence that blocking mechanisms are at work. Read again the Belfast Telegraph article “Mystery Intervention against Pat Finucane Inquiry”, Oct 19, 2011. The thought that it is possible that some of the most respected and senior figures in Britain and Ireland have given orders to kill civilians is personally disturbing and politically and socially destabilising. It is certainly true that degradation of evidence creates an impossibility for a general judicial process regarding the past, but we need these exceptions to the proposed de facto amnesty, and clear policies and procedures to determine which events should continue to be investigated.

  • Alias

    “Over to you too, Dominic Grieve, the UK Attorney General.”

    Larkin may well be ignorant of the implications of case of McCann and Others v. United Kingdom for the interpretation of Articles 1 & 2 of the ECHR but it is highly unlikely that Grieve shares his ignorance.

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

    It is not within the scope of powers enjoyed by Larkin or Grieve to set aside the binding duties imposed on the UK by international law in the various treaties it has committed to.

    In regard to the state-sponsored murder gangs, these were also controlled by “agents of the State” so it is not even a case that they can close down the judicial systems for the victims of the murder gangs but not for the State’s other agencies.

    No doubt the choreography from Northern Ireland’s Attorney General, Director of Public Prosecutions, and from the head of its police service advocating that the international law be set aside is intended to secure an outcome that will close down the judicial systems for victims de facto if not de jure.

    What a disgusting little backward statelet, eh?

  • If war is too important to leave to the generals, why would we leave this matter to the lawyers?

  • Alias

    Joe, when Larkin said “take the lawyers out of it” he actually meant ‘take the judicial system out of it’. He simply used lawyers as propaganda as lawyers are not held in high esteem among the public so the fallacy there is to lure the public into supporting the latter proposition while thinking they’re supporting the former.

    The British State regular uses public dislike of paying lawyers’ fees to avoid public enquiry in Northern Ireland. It was cited as a key reason for The Inquiries Act 2005 when the actual reason was to block effective enquiry. There is nothing new or unusual in British State employees such as the Attorney General, the Director of Public Prosecutions, or the Chief Constable of the PSNI repeating that British State propaganda.

  • cynic2

    This seems to have been a home run by Larkin that was politically and practically shambolic.

    The Attorney Generals role is defined (in part) as

    “Chief legal adviser to the Northern Ireland Executive for both civil and criminal matters that fall within the devolved powers of the Northern Ireland Assembly

    To protect the public interest in matters of law”

    I assume that he thought he was acting in the second role when he made these announcements but to have taken that political stance on a matter of such public controversy how can he now give fair impartial and open advice to FM and DFM? . He has committed himself publicly on this issue and apparently even without any notice to FM or DFM . Is he now not a busted flush?

  • Charles_Gould

    Would it be fair to say that St Marys — the school that Larkin went to — draws its students almost exclusively from very deprived neighbourhoods?

    Might this biographical detail explain his approach to the use of public resources?

  • I doubt it, Charles. To me, it seems that he has a politician persona buried in his psyche and he firmly believes that he knows best, given this and his other forays.

  • Charles_Gould

    Mr Joe you are probably right; I just get a sense that people from St Mary’s tend to be outspoken.

  • Haass has spoken on the reaction to the Larkin intervention but the Irish Times headline doesn’t fit the story 🙂

    Haass says Larkin proposal ‘instructive’

    er

    “I thought the scale and the intensity of the reaction was instructive,” said Dr Haass, adding that it was “crystallising” how important was the issue of the past. ..

    “Intentionally or unintentionally what John Larkin said contributed to that crystallisation,” said Dr Haass. ..

    “We leave here with a better understanding of where the parties stand and with a clear sense of the areas of agreement and the areas where agreement has not been found,” he said.

    The canny Haass has embraced the local maxim, “Whatever you say, say nothing”. 😉

  • An interesting theory Mr Gould.
    In the 1960s there were only two Catholic Boys Grammar Schools in Belfast. St Malachys and St Marys.
    There was a “capital” fee of £3 per year for going to St Marys….and as I recall it was £5 for the other lot.
    The catchment area of St Marys (then) was obviously the Falls Road…which you may not know…is actually a series of parishes, effectively villages and as a general rule, these “very deprived neighbourhoods” (as you call them) were progressively less deprived the further up the Falls Road you went.
    But St Marys drew pupils from Short Strand, the Markets, Upper Ormeau, and of course Malone Road.
    There were some pupils from the New Lodge and Ardoyne, even though they had to pass St Malachys to go to St Marys.
    The pupils who were from the leafy Upper Antrim Road had generally speaking gone to a CBS primary school near Belfast Zoo.
    There were also pupils from Bangor! Portaferry, Glenavy and even Moira and Lurgan.
    This of course was the 1960s.
    ST Marys was probably affected by the Troubles and other grammar schools opening.
    But I find the notion that St Marys pupils have a reputation of being “outspoken” as being extremely bizarre.
    I think you might be basing this on an unfortunate incident in a cinema during a school performance of the movie ” A man For All seasons” in 1968.
    Yes ….punches were thrown. But surely thats normal inter-grammar school rivalry.

  • Charles_Gould

    Fitzjameshorse, I was not basing it on the St Mary’s cinema fracas of 1968. Rather, it was based on my experience at an inter-school discussion day where pupils from St Mary’s took part. We had to go into break-out groups to discuss issues and then the group would report back to the plenary meeting, etc. The pupils from St Mary’s were in my opinion compared to other pupils quite outspoken – gave of their views with confidence and without hesitation or guard. And when Larkin spoke as he did, it reminded me of those St Mary’s pupils and it made me wonder if there is something about St Marys that results in a tendency to be outspoken, perhaps the demographic of the area rather than the school teaching. But it’s only a theory, and probably wildly off the mark – bizarre. I had no idea St Marys had such a large and wide catchment, thank you for filling me in on that.

  • It wasn’t a fracas….it was very enjoyable.