Those wanting a formal amnesty might start by having the honesty and the decency to ask out loud…

Yesterday was notable for people in the British press taking notice of the Attorney General’s unpopular intervention with his suggestion of an amnesty that isn’t quite an amnesty. David Aaronovitch (pointing out that the Old Bailey trial of John Downey is about to commence on January 14th) had this to say in his column in The Times:

There is something odd about an Attorney-General, for whatever motives, not defending the process of justice. Politicians have to make shabby compromises, but we don’t expect our law people to suggest them.

When we bend the rules we must only do it to save people and protect society. Anything else means a slide into arbitrariness. Northern Ireland, 15 years into peace, surely can do without this slither.

Well quite.

Con Coughlin writes on defence and foreign policy for the Daily Telegraphy which is probably the UK newspaper closest in temperament and outlook to the British Army. On the eve of last night’s Panorama, he asked “Why doesn’t Panorama investigate the IRA’s secret hit squads?”

The glib answer is that the BBC is unlikely to find three former IRA men who would open up in that strangely admirable and candid way those ex soldiers did last night. [Erm, you got pinged on this on Twitter. What about The Disappeared Mick? – Ed]

Nevertheless, the question exposes to public light some of the softer agreements which surround the 1998 and 2006 agreements around the way a compromising past is dealt with.

As Denis Bradley pointed out on The View last night (and since he has pretty much spoken to every player in the current political game, he should know):

… people tell lies around this all the time. The people who want an amnesty keep saying they don’t want an amnesty. And the people who say they want the truth don’t want to tell the truth.

As Seamus Mallon pointed out earlier on BBC Radio Four’s World at One:

“If you don’t bring these prosecutions and if you don’t try to ensure that the law is there for everyone to answer, then you’re actually negating the whole thesis of law within society and that is, I’m afraid, what has been happening in instances such as this.”

The problem is not just the resolution of the past. Rather it is the slither into arbitrariness which Aaronovitch correctly identifies as the real and abiding problem. Law and justice become affectations rather than something politicians believe applies to them.

For more mundane proof of just how lightly Northern Irish politicians routinely treat the law, after nearly two years of hyperbole and all manner of accusations illegality from DUP and SDLP Ministers and Sinn Fein spokesmen, the Red Sky issue has finally been resolved, with a report saying that there was no evidence of fraud, just poorly managed contracts by the NI Housing Executive, which included instances of undercharging as much as overcharging.

The law and the legal system are one of the citizen’s few methods of redress against the established powers, public and private.

Somewhere, the salami slicing of law has to stop, not least since it is making dishonest fools of almost anyone choosing to get involved with NI politics. And, as Brandon Hamber said last night, ‘if we spend our time saying can we find the one thing that will help us deal with the past, I don’t think we are going to find that one thing…’

Sacrificing the rigour of the justice system may also mean sacrificing the needs of the future to suffocate the ghosts of the past.

Will the one way traffic against the state continue? It’s clear the cops are not best pleased at being made the primary fall guys in this process (having inflicted 55 fatalities to the Provisional’s 1700).

And yet, without a formal amnesty the way forward remains something of an unpredictable swamp for those directly involved in a mass campaign of murder and mayhem. If there is a possibility of getting one, they might start by having the honesty and the decency to ask out loud.

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  • Mainland Ulsterman

    Larkin’s bizarre intervention this week has had a positive effect – the consensus against closing the book on Troubles crimes has been heartening. And it shows people value the ‘truth’ element in ‘truth and reconciliation’ more than some in the political establishment realise. One isn’t possible without the other. The fuzzy logic that says, we all move on by fudging our moral judgments about what happened, seems to be getting exposed now. This is a profoundly good thing.

  • DC

    Sacrificing the rigour of the justice system may also mean sacrificing the needs of the future to suffocate the ghosts of the past.

    The justice bit isn’t going to happen easily if at all due to the burden of proof element and the amount of time passing making it very difficult to prove things using due process, which is what actually differentiates past crimes from the stuff happening in the present, post 98.

    Plus I think the criminal justice system of yester year around the troubles period had been polluted in part, state interference, pro british state judiciary – therefore the two systems are not a like for like today’s is in better health you might say. Personnel and mindsets have changed, the culture has changed.

    In my opinion what also helped pollute the criminal justice system were clever solicitors (with centres named after them) who had the ability to make judge and jury ‘suspend disbelief’.

    http://www.newsletter.co.uk/news/regional/jean-mcconville-killer-is-named-1-5670723

    The criminal justice system has changed and i think today’s solicitors code of practice might have something about it being an offence not disclosing to the police terrorist activity of clients:

    http://www.lawsociety.org.uk/advice/practice-notes/anti-terrorism/#ou3

    Anti-terrorism
    24 October 2011

    These offences are covered by the following sections of the TA 2000:

    Disclosure of information: duty – s 19
    Failure to disclose: regulated sector – s 21A
    Failure to disclose: information about acts of terrorism – s 38B
    Top of page

    3.1 Disclosure of information: duty
    Under section 19 of TA 2000 it is an offence for a person not to ‘disclose to a constable as soon as reasonably practicable’ his or her belief or suspicion, and the information on which it is based, that another person has committed an offence under sections 15 to 18 of the TA 2000, when that belief or suspicion is based on information coming to him or her in the course of a trade, profession, business or employment.

    The offences referred to are fund raising (s 15), use and possession of terrorist property (s 16), funding arrangements (s 17) and money laundering (s 18).

  • DC

    In fact as soon as I heard the Pat Finucane Centre was against it that itself helped me think again about things.

  • Raymonds Back

    This is a serious question to which I would like a factual answer (ie not an opinion): my understanding is that if a former IRA member, or UVF member or INLA member or UDA member were to be convicted of a crime commited pre-1998, he would be sentenced, go to jail and then walk straight back out through a revolving door because his organisation is still on ceasefire. Is this correct? If it is correct, what would be the point of the conviction, apart from the recent development of barring him from being appointed as a Special Advisor?

  • Raymond,

    My understanding was that they would be incarcerated but would serve a maximum of two years. That’s what happened with the GFA early releases. Not all were released immediately. For those sentenced to life, of course, they would be released on parole only and were subject to recall. That has happened to some, Michael Stone for example before his latest conviction.

  • Raymonds Back

    Thanks for your opinion Joe – any sources? To my way of thinking, the biggest winners from a possible amnesty/not an amnesty would be members of the British Army, RUC and UDR: as their organisations are not on ceasefire, there would be no revolving door for them, after two years or whenever.

  • Henry94

    I support an amnesty but it will never happen for the very reason I think it should. It would free people to speak without the fear of implicating others. Or themselves.

    The threat of legal consequences keeps people in line and keeps the truth from emerging from the bottom up. The alternative to Amnesty is not justice. It is to keep talking around in circles until everybody who might have something to say is dead. That is the policy of the British and of Sinn Fein as I see it.

    What about this as an alternative. Let victims families have the option of allowing an amnesty in their case. In the end who else has the right to make the call.

  • Johnny Boy

    However unpalatable, things like an amnesty, or drawing a line, should form part of the debate on dealing with the past.

  • Charles_Gould

    “What about this as an alternative. Let victims families have the option of allowing an amnesty in their case. In the end who else has the right to make the call.”

    Doesn’t really work. Its never up to the victim of a crime (who may feel pressured by the decision) whether a crime should be investigated.

    I don’t agree with an amnesty but I do have an alternative: that people who are guilty can be released early. Then they could speak up, be convicted, and be released early, say after a couple of years in prison. The closure is in the conviction.

  • BarneyT

    Mick, I was sure you would see some positives in the prospect of an amnesty….rather than continue prosecution after prosecution?

    I think an amnesty is the right way to go….but only as a precursor to a full enquiry type truth and reconciliation effort.

    The response from the MOD to the WRF and Panorama does not give me much hope that truth would emerge from the British government. I think they will sacrifice their own and they indicated this by passing the buck to the police service, rather than start the necessary naval gazing process that is necessary. The MOD is responsible for the actions of the secret unit and its convenient to write it off as a renegade going literally off book. This had to be strategic. But we have to expose this first.

    Until the British open up and admit that they played this situation, setting the IRA and UVF against each other (get the natives to fight amongst themselves) at times, then we will get nowhere.

    Amnesty, real truth and freedom from prosecution must go together. I don’t know how a truth and reconciliation process would react to blatant lies? Must we accept everything that comes forward?

    Going back to the main article and the Daily Telegraph….they are creating a parity between the state and the IRA. The IRA were not officially representative of any state, however the reaction force were. Don’t get me wrong, if there is universal acceptance that a war was being fought, then we have action\reaction across the board, then they may have a point. But that’s not how it was. It was loosely speaking, an oppressed community fighting against a dominant invading oppressor. I am using that to put this in context and highlight the telegraphs simplicity, not justify all actions taken.

  • cynic2

    “response from the MOD to the WRF and Panorama”

    Yeah that calling in the police to investigate alleged murders …its just not enough. What they need is to send out a hit squad to target the hit squad

    ” The MOD is responsible for the actions of the secret unit” – one one level it carries the buck but organisations don’t do these things, people do. So lets see where the evidence leads

    ” an oppressed community fighting against a dominant invading oppressor”

    Ah yes. MOPE again. And PS ….. an Army cannot invade the territory of its own state

  • DC

    Good call Henry, generally in support but i think blanket amnesty has to stand to make it work. Below has its flaws.

    What about this as an alternative. Let victims families have the option of allowing an amnesty in their case. In the end who else has the right to make the call.

    What if they change their mind after having found out the truth and think this isn’t good enough now, more needs done, what about justice? It’s a bit like an abortion in terms of the pressure at least from deciding and then having to deal with the consequences a lot of pressure on the person, just one person, which person? Or will it be wider family, might it be the wife / widow who is allowed to decide, take control or the son and daughter as well? The decision – all those doubts, changing of minds – big pressure on the victims is it not?

    Also it might work OK for those killed by IRA UVF etc but victims might change their mind if amnesty is applied and then rogue state forces and personnel come out and say we did this x y z would this be OK to say fair enough to and let it go? ‘The disappeared’ and the way bodies were recovered is one way of doing it but would it work say for the state?

    Middle ground politicians say the rule of law should stand and be applied to all and never melt away over time but what if the state broke the law even as the exception not the norm, what if underhanded stuff had happened across the range stuff such as state interference in rule of law, interfering with witnesses, judges, judiciary etc to get its way to protect state actions. All done in support of maintaining the NI state against terror. Or as you can see above justice was supposed to have happened in court as Patrick McGeown walked free. Justice was supposed to have been done in court when that MRF soldier was charged with opening up on the Glen Road but walked free acquitted June 1973 – despite evidence to the contrary. So even some of the stuff that made it into court at that time didn’t even deliver justice arguably.

    This might be the only way to clear the air and get info out – so i back Henry’s call.

    I actually think it – an amnesty – wont draw a line under the past but in fact do the opposite bring it to life if managed correctly.

    A compromise might be blanket amnesty for killings between 70-76 say when allegedly the state had misbehaved the most and when troubles were at their worst and given the time and period unlikely to be any evidence around for sound convictions?

  • Brian Walker

    Mick,
    The point to grasp is that an end to prosecutions would by no means amount to forgetting that the murders ever occurred in the first place. On the contrary it would be a quid pro quo for setting up a satisfactory extra-judicial process. We are told repeatedly by those who work in the criminal justice system that in most cases legal process is exhausted. I’ve asked this before – is this actually true? If it is true, it is a cruel deception on victims to keep banging on about “justice” in the high sounding manner of those who wallow in self deception and infinitely prefer the shadow to the substance and call it “principle.”

    Only the radical campaigners most of them republicans I note, actually challenge this conclusion, Amnesty International excepted, in a long document which ducks explicitly demanding a wholesale review of Troubles justice. Nevertheless the case requires re-examination.

    Has the HET become so tainted that all or most of its conclusions need re-visiting? Maybe people are afraid to voice the question because they know a restart from square one will never happen – and perhaps they even baulk at it themselves.

    But at the very least we’re owned a public audit of the HET’s work on which so much hangs, including an explanation of why ( I believe ) around 60% of families are satisfied with their conclusions. That leaves 40% dissatisfied or not knowing. The duty of the lawyers such as John Larkin and the DPP is to give a public audit of the HET’S work which has hitherto been limited to families and researchers – don’t let’s forget – such as Anne Cadwallader.

  • babyface finlayson

    Henry94
    “Let victims families have the option of allowing an amnesty in their case.”
    Agreed. I’ve been arguing the same myself.
    It may not be a perfect solution, but if it brought resolution to some more cases that can only be good.
    And though it is true as Charles_Gould says that victims do not as a rule decide whether crimes are investigated or not I do not see why it could not be legislated for in our particular circumstances.

  • Charles_Gould

    It seems to put an undue pressure on victims to “forgive”.

  • mr x

    There’s been quite a lot of publicity here in England about relatives of victims of the IRA bombing in Birmingham being against an amnesty.

  • babyface finlayson

    Charles_Gould
    “It seems to put an undue pressure on victims to “forgive”.”
    Admittedly it might.But the default position should still be to seek prosecution. Only if the family make a request, to a truth commission say, would an amnesty be offered to those who come forward with relevant information.
    It seems better to me than the other 2 options;
    1. General amnesty. Leaving some families feeling betrayed by the state in their search for justice, and
    2. No amnesties. Leaving families who now want only to know the truth,with no real hope.
    Maybe some of the sharper tooles in Slugger’s box could tell us if there would be any legal difficulties that could not be overcome. Mr Hutz?

  • Charles_Gould

    babyface finlayson

    It’s certainly an intriguing conundrum. I await Haass’s thoughts on the issue with great interest.