Dealing with the Past in Northern Ireland: Law, Prosecutions and Truth Recovery
by Charlotte MANSON for Northern Ireland Foundation
21 May 2013
Amnesties, prosecution and truth recovery present many questions that pose political, legal and social challenges, but that does not take away the fact that such questions cannot be discussed in a pragmatic and peaceful way.
This was how Professor Sally Wheeler welcomed those attending a daylong conference co-organised by Queens University Belfast (QUB), the Transitional Justice Institute (TJI) at the University of Ulster, and the organisation Healing through Remembering (HtR).
“As scholars who both live and work in the community of Northern Ireland, we would like to make a difference – which is where this co-operative project stems from.”
A primary focus of the conference was to examine the viability of Northern Ireland deploying a transitional justice mechanism or a combination of many?
Dawn Purvis (Chair, HtR) stated, “There is a need for a common goal of how to deal with the past, as a common lack of mistrust exists in Northern Ireland between communities and the political process.”
She explained the background of the QUB-TJI-HtR joint project and the financial support received from the Arts and Humanities Research Council (AHRC). Those involved in project, she explained, have drawn upon international comparative research in South Africa, Argentina, Uruguay, Uganda and Bosnia-Herzegovina on causes, operations and impact of amnesties.
Ms Purvis outlined the project’s relevance to Northern Ireland’s transition from conflict to peace: “Despite the uncomfortable discussions that may proceed, we need to have them.”
Louise Mallinder (TJI) explained the project as being designed to inform the debate and let people make decisions from a position of knowledge. Activities undertaken by the three participating bodies will be gathered into a final report, which will be made publicly available.
In her presentation, she explained that the core element of amnesty is to remove criminal liability for categories of offences or offender, which are often conditional (e.g. linked to weapons disposal or groups breaking up). Dr Mallinder then spoke of the Amnesties and amnesty-like measures in Northern Ireland, including the 1969 Amnesty issued by the Stormont Executive, Decommissioning from 1997, and the Early Release Scheme of 1998.
The issue of incentivising testimony in Northern Ireland was also discussed in the context of the Bloody Sunday inquiry (any written or oral evidence given by witnesses could not be used against them – but could prosecute others) and the Location of Victims’ Remains (immunity from prosecution exchanged for evidence on ‘disappearances’).
Dr Mallinder concluded, “Almost all transitional jurisdictions at different times have deployed a combination of amnesties and prosecutions so part of our job with regard to Northern Ireland is to explore the difficulties and advantages of both.”
Investigating the past
Attorney General John Larkin began by stating, “Northern Ireland does not have a common narrative of the past that we all, collectively identify with. We now have an obligation to our living and dead.”
He spoke of the unparalleled burden and challenge, in the United Kingdom, that the Police Service of Northern Ireland carries in trying to “police in the present and looking at the past”.
The Attorney General further questioned if the dual process of examining the state and of illegal organisations in historical prosecutions would produce an enlightenment of knowledge:
“The maximum amount of law brings maximum amount of harm. If we were to take the coronial law away from our state, then faith, culture and good sense can work freely and creatively. This space cleared by law can then allow truth recovery can occur.”
Dealing with the past while creating a new reality for the future
The Police Ombudsman of Northern Ireland (OPONI) carries out independent, impartial investigations of complaints made against the police. In 2010, as current Police Ombudsman Michael Macguire explained, the OPONI established the Historical Investigations Directorate to investigate complaints made relating to the period 1968-1998.
Mr Macguire believes that the Historical Investigations Directorate delivers a public service with impartial reports that cannot be blamed for overlooking certain factors, as the Ombudsman’s’ work provides only one piece of a much larger jigsaw. “You cannot shoot the messenger,” he said.
In his concluding remarks, Macguire acknowledged the extremely critical position of the Ombudsman vis-à-vis the police in Northern Ireland. He made further comment on the trauma of re-living the past for victims and those affected but with regards to criminality, Macguire stated there is no alternative to inquests. “Historical prosecutions,” he said, “may not be the best way for victims, or indeed for the defendant as the law is cold in historical inquests”.
The work of the Historical Enquiries Team
The Historical Enquiries Team (HET) was established in 2005 with an original remit of four years, but the project continues to operate today as a unit of the Police Service of Northern Ireland, investigating the large number of unresolved murders committed during the Troubles.
Dave Cox spoke of the initial optimism towards the HET as “in post conflict situations, there is often an over optimism of a resolution”. Moreover, he discussed the initial challenges facing the HET, as there was no official database of deaths recorded as an offence readily available to consult. The complexities in setting up such a database were aided by Lost Lives, a separate publication produced in 2004.
Since 2005, the Historical Enquires Team has held regular meetings with NGOs to receive advice on a case-by-case basis. Family liaison support forms much of the HET’s work, as families “are more often than not, uninformed with a significant lack of knowledge in relation to their case”.
Cox explained the HET’s approach in avoiding the re-traumatisation of society and families and managing the expectations of all affected: “Closure is frequently replaced with resolution as many questions cannot be answered.”
The role of the Independent Commission for the Location of Victims’ Remains (ICLVR)
The Commission’s remit and structure follow its creation in 1998 to identify and repatriate victims from the Troubles period and to provide reports to both Westminster and Dublin. With many outstanding cases, Geoff Knupfer spoke of the “enormously disappointing” outcome for many families.
In relation to conference, he discussed the ICLVR’s role vis-à-vis truth recovery and criminal prosecutions of the Troubles period. He said, “There is a prohibition on the use of evidence, or a ‘firewall’ against evidence obtained by the ICLVR in criminal proceedings and remains are not subject to forensic examination.”
In conducting such work Geoff gave an insight into the difficulties posed by time passing and variations in environment that often impact historical witness accounts. With the WAVE trauma centre, the ICLVR also provides support to families who are involved in a case.
Finally, Mr Knupfer spoke of a potentially transferable ‘Ireland model’ of the ICLVR in other contexts of conflict following discussions with the United Nations at a conference in Geneva in April.
Reviewing the past from a prosecutorial perspective
Barra McGrory QC (Director, Public Prosecutions Service for Northern Ireland) began by outlining the wide-scale impact of the Troubles, as 43% of the Northern Irish population were either injured or directly affected by the loss of someone. In terms of prosecutions, he said, “The criminal justice system is for acquitting the innocent and prosecuting the guilty”.
He importantly raised the issue of truth recovery and criminal prosecutions as a choice of society: “If prosecuting the past is a service that is expected of us that we are to forego, then resources to conduct such complex investigations, with clear lines of definition are crucially required”. He also reiterated the difficulties of the passage of time since the Troubles with impaired memories, limitations in DNA and other developments.
Mr McGrory concluded, “Our society is drifting along in a vacuum of uncertainty whereby we cannot deny a victim of true justice — which the Public Prosecutions in Northern Ireland will continue to do in current circumstances”.
The Criminal Case Review Commission perspective on conflict-related cases
Since 1995, the Criminal Case Review Commission (CCRC) has operated as an independent, non-departmental body working to amend miscarriages of justice. Since 1997, the CCRC has dealt with 335 cases from Northern Ireland, of which 250 are ‘Troubles’ related and 33 were referred to the Court of Appeal. Paul Mageean commented that this high rate of referral at 11% in comparison with the rest of the UK cases is around 3.5%.
With regards to the 250 Troubles’ related cases, Mr Mageean explained the vast majority of referrals are cases of interrogation of suspects, mainly young men from holding centres. As part of Emergency Provisions issued during the conflict in Northern Ireland, many young people held in custody were prohibited from legal or adult support during questioning.
What is ‘the public interest’?
In the final session of the conference, Gordon Anthony (QUB) spoke of the “limitations in the judicial role concerning prosecution decisions, as this work is entrusted to the office of Public Prosecutions Service”. Anthony, then, noted that the PPS is a public body and should, in that broader sense, be motivated solely by serving ‘the public interest’: “Decisions taken may be (politically) controversial, but this does not mean that the decisions are unlawful.”
However, in the particular setting of prosecutorial decisions, ‘the public interest’ also plays a much more elaborate role”. It is here that the Code for Prosecutors requires the PPS to ask where ‘there is sufficient evidence to provide a reasonable prospect of conviction, and if so, whether the public interest requires prosecution’.
This presentation highlighted the legal, political and philosophical challenges facing prosecutorial decision-making, and in the context of the conference, historical prosecutions. When acting in the public interest, is there an assumption of what the public interest expects and requires? If so, should this be entrusted solely with the PPS?
Where to next?
This conference confronted many of the controversial debates and discussions in the context of dealing with the past in Northern Ireland. The closing session involved a rich debate on the need for a common narrative of the Troubles, which ultimately has implications on the potential for historical prosecutions and truth recovery. The diversity of the audience from across sectors in society brought relevant debates to the table, as they, at large, represented much of ‘the public interest’.
Kieran McEvoy of Queens University Belfast closed the conference by remarking on the “reassuring and respectful conversations held today”. He reiterated the project’s aim of “informing civil society to have these discussions and open up the project to public and private discussions”.
Further information about the project — Amnesties, Prosecution and the Public Interest — can be found online, including photos and videos of the conference. The investigators of the project are Professor Kieran McEvoy, Professor Gordon Anthony and Dr Louise Mallinder.