Opinion

Newton Emerson: We have to recognise the denial at the heart of the legacy issue

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.

Director of Public Prosecutions Stephen Herron saidthe five-year deadline to review Troubles cases “may not be achievable”
Director of Public Prosecutions Stephen Herron saidthe five-year deadline to review Troubles cases “may not be achievable” Director of Public Prosecutions Stephen Herron saidthe five-year deadline to review Troubles cases “may not be achievable”

Consultation has now closed on the legacy proposals in the Stormont House Agreement, with final criticism emerging from two authoritative sources. Both their critiques can be answered but not without highlighting the denial that goes to the heart of this issue.

Former Police Ombudsman Nuala O’Loan has told a Civil Rights commemoration in Derry it will be “totally impossible” for the proposed Historical Investigations Unit (HIU) to review all outstanding Troubles cases within its five-year timeframe.

Director of Public Prosecutions Stephen Herron has echoed this view in a submission to the consultation, saying the experience of his organisation - the Public Prosecution Service - indicates the five-year deadline “may not be achievable”, even allowing for its permitted one-year extension.

The extraordinary slowness of the criminal justice system makes this easy to believe. However, HIU is not a prosecuting or even a proper investigating body. It is to be a reincarnation of the PSNI’s Historical Enquiries Team (HET) and the experience of that organisation shows the five-year timeframe is perfectly realistic.

HET managed to complete around 300 case reviews a year with its full complement of 175 staff. By the time it was shut down in 2014 it had reached the half-way point on all deadly Troubles incidents. An inspection report found that even with 20 per cent staff cuts and reducing its workload to 120 cases a year, HET should have completed the remaining half within five years at a cost of £23m.

Only these remaining cases, representing around 1,700 deaths, are to be taken up by HIU. With £150m of legacy funding pledged in the Stormont House agreement alone, it would be wrong to assume the five-year timeframe is typical wishful thinking from officialdom. There are firm grounds to believe this deadline could be met. But the limitations of HIU reviews, which are essentially paperwork exercises, would have to be accepted. HET was closed after criticism it was not performing full investigations, yet that was specifically beyond its remit.

If HET had been allowed to continue, it would have finished the Troubles case load this year. Instead, the perfect became the enemy of the good.

Some families who recognised HET’s limitations were still dissatisfied with its reports. A legacy process would also have to accept considerable disappointment of this nature.

In addition to questioning the timeframe, the PPS submission alleged a major flaw with the proposed Independent Commission on Information Retrieval (ICIR).

Modelled on the commission to locate the disappeared, this is to be a non-criminal justice body that families can approach to “request, seek and privately receive” information about deaths.

The idea is that former paramilitaries and others would volunteer that information. In return, their names would never be released, their testimony would be inadmissible in court and nothing would be disclosed to intelligence or law enforcement agencies.

The PPS concern is that people could nevertheless use ICIR to deliberately prejudice a potential or actual prosecution.

“An example of this would be where false information is fed into the system with the intention that a family report is produced containing information that undermines the prosecution case or assists the defence case,” it warned.

Such subversion is possible in theory but how would it work in practice? As families must choose to approach ICIR and publicise anything they are told, they would have to be tricked into actively sabotaging their own prospects of justice.

Victims might be easier to mislead if the purpose of the false information was to prejudice another case entirely - but that would be an elaborate trick to attempt, let alone to pull off.

The real flaw in the PPS objection is that ignores the unwritten understanding behind the ICIR, which is that families who approach it have given up on a prosecution.

This cannot be stated in the Stormont House agreement because amnesties are legally problematic - the agreement has to say confession confers no immunity. However, modelling ICIR on the commission for the disappeared and running it alongside HIU could scarcely make its purpose clearer.

O’Loan told her Derry audience: “It’s important also to say that you can’t restrict from investigation cases which were investigated in a very, very unsatisfactory way in the past.”

Equally important is what politics, law and respect for the bereaved still make it difficult to say - that the vast majority of Troubles victims will never have their day in court, so it is time to get the best process for the most people that opportunity still allows.

newton@irishnews.com