Excellent summary of the legal position from Joshua Rosenberg in the Guardian today, which points out that even if the PSNI have sufficient evidence to charge Gerry Adams, a public interest defence (not dissimilar to the one the Secretary of State has used to block the Ballymurphy and La Mon families), could see him walk away free from a criminal trial…
Once prosecutors have concluded that there is enough evidence, they must decide whether a prosecution is in the public interest. This time, the codes on both sides of the Irish Sea are broadly similar. But the dynamics are subtly different.
The DPP for England and Wales, Alison Saunders, operates under the superintendence of the attorney general, Dominic Grieve QC. Superintendence, a term first used in 1879, was left undefined by parliament. But Grieve made it clear in a speech last year that he would not tell the director what to do in an individual case “save very exceptionally where necessary to safeguard national security”. Before giving a direction, Grieve said, he would consult his colleagues in government – though the decision would be one for him alone.
Since the devolution of policing and justice powers to the assembly four years ago, Northern Ireland has had its own attorney general, John Larkin QC. But unlike Grieve, Larkin does not superintend the DPP. Barra McGrory QC, who was appointed to the post by Larkin in 2011, exercises his powers independently, although he must consult the attorney general in some circumstances and the two lawyers may consult each other more generally. Some powers were not devolved in 2010 and these are retained by Grieve as advocate general for Northern Ireland.
Adams made it clear that the police questioned him about his alleged membership of the IRA, itself an imprisonable offence. He has always denied having been an IRA member and the charge is notoriously difficult to prove. But if the police have evidence to support this allegation – or if Atchison thinks it can be obtained – she might have to consider whether it would be in the public interest to charge Adams with IRA membership. In my view, it would be entirely proper for Atchison to take account of the public interest in maintaining the peace process and the effect that charging the Sinn Féin president would have on the future of power-sharing in Northern Ireland.
Similar considerations must come into play if evidence emerges linking Adams to McConville’s abduction or murder. He has consistently denied involvement. The law may require Atchison to favour pragmatism. And she need look no further than the code under which she operates to find the famous principle expressed by Sir Hartley Shawcross, the Labour attorney general and former Nuremberg prosecutor.
“It has never been the rule in this country,” he told parliament in 1951, “that suspected criminal offences must always be the subject of a prosecution.” Prosecutors, he added, must have regard to “the effect which a prosecution, successful or unsuccessful as the case may be, would have on public morale or order”. [emphasis added]
So there you go. Given how grateful the Secretary of State seemed to be that Gerry had put the PSNI bunny back in the box, I would not bet against this line of reasoning eventually emerging from the DPP’s office.
Nor should it’s relevance to those seeking justice for victims of State murder be underestimated. As Rosenberg observes of Shawcross’s argument:
These are wise words. And they apply equally to those on the other side of the Troubles.
They already have Joshua, they already have…