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?


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

  • Mc Slaggart

    I wish it was.

  • Zig70

    Innocent till proven guilty seems to be lost in all this.
    No main media journalist seems to bring up the point that lack of evidence means you can’t be sure they a person did it.

  • Mick Fealty

    For me, it’s been a tough couple of weeks trying to figure what’s been going on and reviewing past actions against some of the revelations in Mr Justice Sweeney’s judgement.

    I’m hoping to pull back from it a little and let matters unwind over the longer term. But I see the same imbalance you do Brian.

    The point about the state being less well investigated has been well made over time. But there’s a negative presumption here that belies the reality of the conflict.

    It would be useful to have a chart which looks at the proportions of successful convictions for Loyalists, Republicans and state forces.

    I’ve a feeling that they run down in roughly that order, but without figures I don’t want to guess. There’s a school of thought that the state should face the toughest test because it is important to maintain broad public confidence.

    But this sort of fails to recognise that those forces were put under extraordinary pressure during the conflict, whilst for the most part trying to prevent death or injury.

    For instance, according to figures collated by Chris Ryder, some 30% of RUC deaths were caused by Loyalists (who seem to be getting off scot free in all these discussions).

    Between 1968 and 2000, some 9800 RUC men and women were injured with a range of injuries from blindness to trauma, quadriplegia, etc. The figure for the Republic in the same time was 650.

    Over a hundred RUC families had to move because of Loyalist intimidation between the Anglo Irish Agreement protests and then the bulk had to move during Drumcree 96 and 98.

    The point is that I know what the Loyalists were doing in that time. They were doing not much more than pumping terror into the Catholic population.

    Some of them will try to tell you to this day they took out IRA men, but the one guy they got in Holywood was anything but.

    He was a warm decent friendly individual who was caught in the wrong place at the wrong time. He did not deserve the terrible end he met.

    Turning to Lost Lives, Security Forces suffered 1012 (roughly 50/50 police and army) fatalities. Republicans 395. Loyalists had just 167 killed. Civilians were by far the largest group of victims and probably the most under represented in this post conflict debate, 2087.

    Security forces killed 367, and the RUC 51.

    I wonder if the rigid public focus on the state’s actions is commensurate with what actually happened during the ‘war’. I cannot see what’s wrong with going after wrongdoers and the Paras stick out like a sore thumb. Mark Thompson highlights some of the more gruesome activities of the SAS for proper mention too.

    But if there’s to be a sustainable transition to peace what’s also needed is some affirmation of the principle of ‘equality before the law’.

    That can hardly amount to giving into the ‘sling another cop on the fire’ urge when in terms of the overall damage they took much of the blast and created so little of the fire.

    Outrage, it seems to me, is a suboptimal way of building a new society. Whatever way we decide to go forward, I’d like to see a more predictable accountable and even handed approach to prosecutions.

    In terms of fresh evidence, if that’s the road we all decide we want to go down, then let the DNA do the talking? But let there be no politically expedient exceptions.

  • Barnshee

    “Turning to Lost Lives, Security Forces suffered 1012 (roughly 50/50 police and army) fatalities. Republicans 395. Loyalists had just 167 killed. Civilians were by far the largest group of victims and probably the most under represented in this post conflict debate, 2087.

    Security forces killed 367, and the RUC 51.”

    NO– NO –your arithmetic MUST be wrong It would mean that the “Security Forces” caused some 11% of the deaths whilst the murder gangs caused 89% ? Can`t be -sure the security forces caused it all -An enemy of the peace process that`s what you are

  • megatron

    I think the main problem is that going the justice route inevitably means a small number of people pay the price for all the unsolved cases.

    I still think the time has come (20 years after ceasefires) to draw a line under the whole lot. Personally I think even the truth would be a bad idea at this stage. Given another 10 years and the peace process politicians will have shuffled off the stage and there will be a dwindling number of people still alive.

    In addition equality before the law would be nice but it is not achievable or in my view even desirable. That is probably always true unfortunately.

  • Neil

    NO– NO –your arithmetic MUST be wrong It would mean that the “Security Forces” caused some 11% of the deaths whilst the murder gangs caused 89% ?

    We know the numbers ffs. How many arrests and imprisonments did they make up? Let me save you some time: close to 0%. Therein lies the problem.

  • Mick Fealty

    I’ll dig it out so we’ve got something concrete to go on Neil.

  • Neil

    Cheers Mick. For the record as I’ve said in the past, I agree with Megatron:

    I still think the time has come (20 years after ceasefires) to draw a line under the whole lot.

    Not a popular point of view in my neck of the woods, or elsewhere. But truth recovery is also key.

  • Mick Fealty

    I know. I’ve been talking to some of them on Twitter. But just remember, when all the red rage clears. We worked it out on Slugger first. 😉

  • Brian Walker

    But Mick politics is bound to come into it – and a good thing too. The pure human rights approach is a hard one to deny in principle. Practicing lawyers accept that the standards of Diplock court convictions were lower than they would be today. The courts of the time were following the will as well as the legislation of Parliament, and applied the lowers standards of proof of the Judges Rules that prevailed for much of the period.

    Adopting today’s ECHR standards however does not mean all Diplock judgments stand to be overturned.

    Talking of analyses, It would be good to have the full analysis of the convictions quashed ( eg Danny Morrison) and compensation paid (eg Raymond McCartney MLA). Radicals may campaign for a wholesale review of the administration of justice through the Troubles while some of their critics accuse them of being a republican front or stooges. But the interesting thing is that unless they’re compelled to join a controversy Sinn Fein are on the whole quite content with things as they are – piecemeal results , eventually petering out .Why is that? Because their honour (if I can call it that) is broadly satisfied with the extent of case review and they tacitly admit that justice was generally done.

    This attitude is another subterranean aspect of the peace process, this time implied rather than conceded. If radical campaigners were to win greater traction Sinn Fein would come under greater pressure to go militant in favour of (one sided ) justice and draw the inevitable wrath of unionism, to the detriment of stability and probably, justice itself.
    Unionists have not got a dog in the fight to the same degree, being more detached from loyalism on the one hand and the police on the other , than is Sinn Fein from violent republicanism.

    Where are the politicians on either side who are leading campaigners for a wholesale review of the criminal justice system? Against that the OTR controversy is small beer.

    That’s what I mean by politics. And for once I believe that the political approach is better than the legal approach in spite of the side deals.

  • Gopher

    Loyalists killed around 1000 and Republicans around another 2000 so 3000 deaths were murders. The Security forces (including Irish) killed 367. Of those 367 deaths one could argue all day how many would actually constitute murder, accidents or justified. As for collusion someone fingered a large proportion of those 3000 murdered a number far in access of the combined Loyalist and Republican death toll and we arnt investigating them. So when you are looking at conviction ratios you need the right statistics to start off with.

    Im sure if Loyalists embarked on a bombing campaign they would have lost more than 167 men dead

    Interestingly the UDR killed 8 and lost 196 serving and 40 ex members. That kinda puts the nature of the conflict in perspective

  • Mick Fealty

    OTRs are, or should be, small beer in the larger picture Brian. But it’s resolution may have usefully destabilising effect on the current impasse. BTW, I think Diplock is still being used with little protest from Stormont against dissidents.

    Never mind political activism on the law I don’t see many parties taking policy seriously.

  • Morpheus

    Isn’t that nice of the SoS to reiterate exactly what both the recipients and now the public knew all as it was contained in the letters

    Basically all she needed to do was say what she has already been saying and it’s now acceptable and lapped up.


  • Gopher

    Brian I’m not sure I follow it has become somewhat obvious that rather than a tacit agreement the production of the Downey letter means SF have accepted the benevolent majesty of crown justice. This acceptance only applies to limited numbers of their own which is what rankles from victim through to their own who did not get the benefit of benevolent majesty. Gerry Kelly supporting the Chief Constable yesterday over something in one breath is described as only tacit whilst has substance in demonstrative and practical terms stretches the credulity of the party.

    Imagine if anyone else outside SF had dropped a very public case against the PSNI and then came out in the chief constables support. Perhaps the crown demanded a confidence building measure also.

  • Mick Fealty


    “politics is bound to come into it – and a good thing too…”

    I’ve been giving this some thought, and I think you put your finger on it. It’s the very absence of real politics from this taboo zone that’s been causing a lot of the problem.

    On the DUP side we have had a lot of posturing (and I don’t just mean since this ‘crisis’ broke. There’s been a lot of displaced energy not going into scrutiny of what kind of police or justice system we want.

    On the SF side, well let’s just use the coverall and say there’s been an awful lot of unshared secrets. Neither help us move forward. But at least the crisis has brought out what was previously concealed and it may allow people to move off positions that are simply untenable in the long run.

  • Brian Walker

    Mick says: “OTRs are, or should be, small beer in the larger picture Brian. But it’s resolution may have usefully destabilising effect on the current impasse.”

    By “useful effect “ I presume you mean that the OTR row is shock therapy to encourage politicians to end the pretence that they are really in favour of reopening as many old wounds as possible and admit the public benefit of an end to prosecutions. And by so doing, to stop playing games over the past and turn to the present and future.

    It doesn’t look like it in the short term does it?

    Westminster on their high horse is an obstacle. On their own agenda they can hardly encourage official forgetting for the Irish when they have is so much dirty linen to wash of their own.

    Turning back to the own situation, for as long as running sores aren’t staunched such as Finucane and perhaps Ballymurphy, Sinn Fein can still get mileage out of insinuating that the illegalities of collusion and shoot to kill were responsible for IRA – shall we call it? – containment and that the State was no better than they were. And yet if those causes celebres were satisfied would there not always be others to follow?

    And what about our victims, so much the pawns in the game?

    The best hope of progress on the dirty deeds of the Troubles it seems to me, lies in the Haass proposal for an Independent Commission for Information Retrieval (ICIR) which would encourage testimony under conditions of no self incrimination and no access by the justice system. One could see a dynamic (which might be objected to) of potential witnesses seeing the ICIR as a preferable alternative than being compelled to appear before the enhanced powers of a Historical Investigations Unit and the Police Ombudsman. Out of “information retrieval” might come as much of the “story telling” which is all the victims are likely to get beyond what they’re already being told by the HET. For that happen we’re back to the square one of immunity.

    Maybe it could work and help change the political climate…….

  • Brian Walker

    Gopher.. SF accepted what you quaintly call the majesty of Crown justice a long time ago. They can hardly be expected to do other than play the system to their advantage. They have the benefit of law like anyone else. And you are entitled to point out the irony of that, Now where do we go from there?

  • Mick Fealty

    Short term, definitely not. But we’ve been trying to make peace at a rigged table. Unwinding the effects of that may take a while. The process of righting matters may provide the motivation for people to start contemplating just doing the right thing.

    Or perhaps provide the motivation for others with a better idea of how to proceed to take a more leading role. The vision to do something positive is what’s missing here. A point well illustrated by this side show in City Hall last Monday night.

  • Gopher

    A Parliamentary act of Indemnity and Oblivion is where we go from here. A compensation for relatives of all killed except those who were members illegal organizations. HET team to rule on any disputed membership all to be wrapped up within 2 years of passing.

  • Barnshee

    ” Parliamentary act of Indemnity and Oblivion is where we go from here. A compensation for relatives of all killed except those who were members illegal organizations.”

    And who pray will “pay” the compensation for those killed by “Illegal organisations” ?

  • streetlegal

    In their on-going campaign for parity of esteem for all ex-combatants, Provisional Sinn Fein are seeking a pension for all ex-provos, along the same lines as the generous pensions that ex-RUC members received.

  • Gopher

    @Barnshee, The government will pay to cement the act, Illegals and rogue staters get the pardon the victims get the compensation. Everyone gets an equal share so their is no hierarchy of victims. Bloody Sunday becomes equal to Bloody Friday, not to everyones taste I know but the relatives of some 600 terrorist dead get nowt.

  • son of sam

    Street legal
    I thought the proceeds of the Northern Bank robbery were supposed to provide the pension pot for ex-Provos !

  • “Independent Commission for Information Retrieval (ICIR)”

    Sounds like mission impossible to me. Who can we expect to be candid? Government ministers and paramilitary godfathers, past and present, even when they’re not telling porkies or dissembling, are unlikely to be at the head of the candid queue; they will not be role-models of contrition.

  • Gopher

    Absolutely no point in looking back with ICIR or a truth commission as a/ you won’t get any truth and b/ the various parties will us it as a weapon. Draw a line, compensate the victims equally and pardon the pre GFA wrong doers with a universal act and move forward.

  • IanR

    A new search for fresh evidence was going on before the latest hoo-har over the OTRs letters ‘scheme’, as evidenced by the successful prosecution by the HET last year reported here:

    The ‘revelations’ of the last couple of weeks, and Villiers’ pronouncements on the non-amnesty, are entirely irrelevant (except in so far as they relate to the Downey case).