The arrest and interrogation of two journalists suspected of stealing documents in connection with the making the film documentary No Stone Unturned on the Loughinisland murders, is a perfect example of how the current handing of the Troubles legacy is deeply unsatisfactory.
In the present vacuum, the PSNI, which still retains front-line legacy responsibilities, seems to feel bound to be seen doing something, even in cases where they look self interested, counterproductive and downright foolish. On the face of it the allegation of theft of documents is bizarre, as the film obviously benefited from the full participation of the Police Ombudsman Michael Maguire and his senior staff. The move smacks of a fishing expedition to appease a section of public opinion, like the arrest of Gerry Adams. It also suggests the journalists are proxy for their real target, the PO himself for exceeding his powers and allowing the documentary to film and name former and serving police officers suspected of collusion and worse. If so, this police pressure is doubly odd as the legal bid to quash the PO’s report into collusion over Loughinisland is still pending.
The disquiet undoubtedly felt by many unionists and in the police family over the handling of the Loughinisland case is part of the background to the mounting campaign against the draft Legacy Bill, currently hosted in the Newsletter. The legacy responsibilities of the PO would be taken over by the HIU.
A contributor to” Legacy” the book edited by Jeff Dudgeon fiercely attacking the draft Legacy Bill, has spelt out his reasons why the Bill is structurally biased and should be scrapped.
As the latest in the Newsletter’s series labelled The Legacy Scandal the solicitor Neil Faris argues as follows.
A draft Bill to implement the legacy proposals has been published.
It is strangely silent about the contents of the family reports, but it leaves readers to believe that the reports will be ‘comprehensive’: that all available ‘truth and justice’ will be revealed.
But I believe that victims are being cruelly deceived.
The HIU cannot be in a position to deliver verdicts of guilt against terrorists and others who may have committed crime in all the years of the sectarian conflict.
This is because there is an essential principle in our justice system: innocence until proven guilty beyond reasonable doubt in an independent court.
The problem is that in few enough of the re-investigated cases prosecutions can be brought successfully to establish such guilt in court ‘beyond reasonable doubt’.
However, the HIU will also have a power in the family reports to make ‘misconduct’ findings in of misconduct against the police in respect of their original investigations, however long ago.
Any such ‘findings’ will, because they relate to alleged ‘misconduct’, rather than to crime, will not of course amount to a verdict of criminal guilt.
So there will be no impediment to the police concerned (usually retired RUC officers) being so named (and inevitably shamed) in the family reports.
I repeat that we must respect and preserve, in all aspects of the legacy project, the essential principle of innocence until proven guilty beyond reasonable doubt in an independent court.
Information given to families of police or army misconduct may be prejudicial to security forces’s Right to Life contrary to the Human Rights Act.
Objections like Faris’s may be overstated in order to provoke answers to the fears of inbuilt bias in the criteria set for the HIU. In the Bill the HIU is of course required to be fully human rights compliant.
But Faris’s argument has force, in that the HIU investigations should not focus on security forces’ “misconduct” over deaths only, but probe further into wider activity by terrorists like conspiracy to murder. There is actually a wide measure of agreement on this point.
On the other side of the argument the Model Bill Team of transitional justice experts demand greater independence for the HIU and less discretion for the PSNI to withhold potential evidence of alleged collusion and matters relating to national security.
The consultation period on the draft bill is nearing its end and a long overdue debate on the legacy should follow immediately – not before time. Like so much else, allowing legacy procedures to fester for so long is only making their eventual resolution so much more difficult.
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