Proposals for dealing with the past could be drowned out by flags and parades when the Haass proposals are published. So let’s take a look now at the informed speculation on this issue by Mark Devenport:
On the past, it is understood there will be a single investigative body bringing together work currently carried out by the Historical Enquiries Team (HET) and Police Ombudsman and possibly the coroner’s courts.
There is also a proposal for an independent information recovery body that would have the power to offer limited immunity covering information brought to it.
People providing information could not have their own testimony used against them in court, but they could be open to prosecution on the basis of evidence from elsewhere.
The proposal a for single investigative body is relatively uncontroversial. A “single mechanism “favoured by Amnesty International and the Committee for the Administration of Justice (CAJ) now looks on the cards and would answer demands for greater investigative independence. But apart from that it would do little more than rearrange the furniture. Investigations of historic cases have to be reviewed by people with policing and legal skills recruited from somewhere.
The prospects for progress will greatly improve if the position of the DUP in particular is softening on conditional immunity. Before politicians take final decisions on dealing with the past they need greater clarity on a number of interrelated issues.
Strong criticism from impartial bodies has been made against the HET and the Police Ombudsman for unduly favouring police evidence. It is unclear – although unchallenged – if it was in the public interest for Her Majesty’s Inspectorate of Constabulary (HMIC) to criticise the HET for applying the inferior standards of the time to police evidence rather than the more rigorous human rights standards of today. This is what the Diplock Courts did all the time. Criminal case reviews have already found a small number of convictions “unsafe” but hundreds more may be affected. Might there also have be hundreds which should have been prosecuted? Is this the route we want to go down? Or is Professor Kieran McEvoy’s conclusion accepted, that there is:
bluntly, no prospect that scores ( of fresh prosecutions) will be successful. To date the Historical Inquiries Team has reviewed over 2,200 cases and only two successful conflict-related prosecutions have been achieved.
These are powerful questions which have barely figured in political debate. Some of them should be answered more fully by the prosecuting authorities.who should suspend their normal discretion in these exceptional circumstances.
Opening the full HET record for a review by a team of experts is surely another important step. They should also be able to see the HET reports of closed cases already given to families. They would need to know the degree of access to the full case record. What evidence can be released if prosecutions can still result?
If the conditions for archive access were ideal the next question is, would paramilitaries and police officers take part in “truth recovery” – that is, agree to talk? Reports from the archives periodically realised on themes such as interrogation and the use of informers – and their alleged results – would produce a wealth of material calling for replies. These should be made under closed inquiry conditions of truth recovery. If no reply came from paramilitaries and from the police and other state agents under fire, the archive report would constitute the published account.
The best result for dealing with the past therefore would be to revert to the main elements of Eames- Bradley for a legacy commission: “to review and investigate historical cases; conduct a process of information recovery and examine linked and thematic cases emerging from the conflict,” but with an agenda and time scale which would cost considerably less than £ 100 million – a budget which would have to come out of the Northern Ireland block grant.