Is Villiers’ warning to OTRs the cue to launch a whole new search for fresh evidence?

Theresa Villiers has delivered her solemn warning  to recipients that their comfort letters are not get out of jail cards.

They will not protect you from arrest or from prosecution and if the police can gather sufficient evidence, you will be subject to all the due processes of law, just like anybody else.

The letters do not amount to any immunity, exemption or amnesty something that could only ever be granted by legislation passed by Parliament. They were statements of fact at the time regarding an individual’s status in connection with the police and prosecuting authorities.

It was on that basis that when the current government took office and was made aware of these arrangements that we allowed the list of names submitted to our predecessors – by that stage coming towards its end – to continue to be checked.

This is not quite in accord with the explanation of the scheme given by Dominic Grieve the Attorney General of England and Wales in the Commons just after the collapse of the Downey trial.

 The test applied by the Public Prosecution Service and approved by my  predecessors in office was not simply whether the evidential test was no longer met, but whether it could no longer ever be met. Only in those circumstances would an individual be told that they were free to return.

No talk of fresh evidence there. So if fresh evidence was available against John Downey ( such as say from a grass),  could he be rearrested and tried? Somehow I doubt it.

Nevertheless Villiers’ categorical statement opens up in theory at least  a whole new avenue of action. Why not try harder to obtain fresh evidence not only against old OTRs but everyone suspected of lawbreaking during the Troubles?

Here a spotlight falls on the Historical EnquIries Team,  much criticised by among others Amnesty International  which has collated  a great deal of  research done by NI transitional  justice experts. Expert evidence submitted to the Haass  team  is full of detail about  inadequate powers and  sloppy evidence gathering .Since it began its work in January 2006 the HET had  by April 2013,  completed 1835 reviews but referred only  39 cases  for possible future prosecutions.

The Amnesty Report “ Time to Deal with the Past” catalogues the  cursory nature of some HET investigations and concludes they often need a big push from families with the help of  expert advisers before they do a decent job.

Their powers are limited too. The HET cannot question past decisions by prosecution authorities and has no power to compel people to give testimony or produce documents. This means members of loyalist or republican armed groups linked to particular attacks, or those higher up in the chain of command, cannot be ordered by the HET to appear and provide information about the motivation for, planning, and execution of an operation. (The PSNI can do so of course but they want to get shot of the whole business while at the same time still investigating Bloody Sunday).

Similar restrictions apply to the Police Ombudsman who cannot compel retired  police officers to give evidence.

In my book the weakness of the Amnesty report is that its analysis concentrates more on cases against state actors more than against paramilitaries. It is as if  they’ve largely given up on the viability of  paramilitary prosecutions  or else have tacitly accepted that the paramilitaries’ record of imprisonment shows uneven treatment in favour of the State which should be redressed. If the former, it would be helpful if they’d say so frankly.

Nevertheless their conclusions could be adopted to make a powerful case for a wholesale new initiative to look for fresh evidence. The Haass document is almost as emphatic in creating a Historic Investigations Unit much stronger than the HET. As the independent legal watchdog  the Committee for the Administration of Justice says:  (Haas) recognises the failures of current institutions, especially the HET, and proposes an alternative to elements of them”.

The HIU would conduct formal investigations, “a power not given to HET,” and would have “investigative powers and arrangements identical to those of the PSNI. Such powers will enable it to conduct investigations that are Article 2-compliant” (that is,  the implied duty on government to pursue investigations into suspicious deaths).

There’s some doubt about whether Stormont with its justice powers or Westminster which is  responsible for  the catch-all of national security is the relevant legislature for creating  stronger  mechanisms for  legally investigating the past, against the agents both of  terrorism and counterterrorism. But once some of the dust has settled about alleged side deals, it’s worth  considering if this the direction of travel  we want to go down. Politicians’ rhetoric  suggest yes. Or has the time come to call bluff?