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.

 

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London