Opinion

Newton Emerson: Open approach of prosecutors in Bloody Sunday case sets a positive precedent

Newton Emerson

Newton Emerson

Newton Emerson writes a twice-weekly column for The Irish News and is a regular commentator on current affairs on radio and television.

James Wray (left) and William McKinney who died on Bloody Sunday
James Wray (left) and William McKinney who died on Bloody Sunday James Wray (left) and William McKinney who died on Bloody Sunday

The Public Prosecution Service (PPS) took the extraordinarily unusual step last week of explaining its decision to only prosecute one Bloody Sunday soldier.

The PPS has until now been a black box at the centre of our criminal justice system. Police files go in and decisions come out, with no reasons given for the decision in between, beyond passing or failing to two ‘tests for prosecution’ of a reasonable chance of conviction and being in the public interest.

We are not even told what the PPS considers a reasonable chance, unlike in England and Wales, where the Crown Prosecution Service acknowledges its threshold to be 50 per cent.

Nor is there any political oversight of the PPS, in contrast to the great weight placed on accountable policing. Even the courts are ultimately upholding the intention of our legislators and judges must set out their reasons when sentencing. Prosecutors are almost literally a law unto themselves, free to set their own policies and priorities without having to answer to anyone.

This has proved a political liability in the recent past. Before policing and justice were devolved in 2010, controversial decisions were taken that left the PPS open to suspicions of political decision-making or interference, and which could not be blamed on inadequacies in a preceding PSNI investigation. These included: the Stormontgate spy case, ruled to be ‘not in the public interest’ despite causing government to collapse; the Mount Vernon UVF informer scandal, uncovered by former Police Ombudsman Nuala O’Loan, then dropped despite evidence of at least 15 murders; the IRA murder of Robert McCartney, where the PPS declined to compel witnesses; and the loyalist murder of north Belfast schoolboy Thomas Devlin, whose family had to a campaign right up to the Attorney General in London to have murder charges brought. There were also a number of prosecutions of UDA leaders without much apparent effort to convict them.

In 2011, the first director of public prosecutions was appointed under devolution and introduced a new culture of openness on policies and priorities, but only in general terms. There was still nothing like last week’s Bloody Sunday explanation.

It is strikingly obvious that explanation has served the PPS and the public interest. It sets out in clear terms why prosecutors believe there is no reasonable chance of convictions in all but one case. The bulk of the PPS argument is that the inadmissibility of testimony granted by the Bloody Sunday Inquiry means most evidence cannot be used in court. The effect of explaining this in some detail has been to remove suspicion: Bloody Sunday families remain hugely disappointed with the PPS decision but they and almost everyone else accept it was sincerely made.

As Dublin-based solicitor Michael Finucane, son of murdered solicitor Pat Finucane, told the Sunday Times last week, cases of this nature are “almost impossible” to prosecute.

However, that is not the end of the matter. Madden and Finucane solicitors, representing the families, say they will investigate bringing a judicial review against “any prosecutorial decision that does not withstand scrutiny.”

Avoiding such action is presumably a key reason why the PPS never normally explains itself. A judicial review can only find a decision has been made wrongly or inconsistently. If decisions are never explained, that finding cannot be made.

This is why the Parades Commission never explains its rulings and it considers that policy successful in making its verdicts final.

Of course, the PPS faces far greater legal constraints on what it can say. In most of its decisions, a detailed explanation could defame the innocent, compromise witnesses or prejudice future trials. However, in a high-profile Troubles case, with so many facts in the public domain and so many obvious limits on what can be used in evidence, a proper explanation has been possible.

This sets a precedent for similar cases, which will be certainly be pursued or brought as we inch towards dealing with the past. From now on, to be consistent, the PPS will have to explain itself in those cases as well. This will be expected by victims and the public to an extent that will be difficult to deny, and could perhaps even be compelled by a judicial review.

That can only be a good thing. People seeking grounds for hope over the past week have looked to the dignity of the Bloody Sunday families. They should also take heart that the PPS has learned the value of transparency in making painful and controversial decisions.

newton@irishnews.com