In the early 1980s numerous trials were held in which the main evidence against a defendant accussed of paramilitary crimes was from another member of the same paramilitary organisation. The evidence of Christopher Black led to 22 members of the Provisional IRA being convicted of a range of offences. There was no other evidence in the case and Black had received assurances that he would not be prosecuted. Kevin McCrady’s evidence led to the conviction of 7 UVF members and the evidence of Harry Kirkpatrick secured convictions of 25 INLA members. at one poitn 500 persons had been charged on the basis of evidence from 27 supergrasses. Steven Greer noted how it was believed to be an active security strategy. Most of these convictions were later overturned and supergrass trials came to an end in 1985.
Until this week.
Fourteen alleged members of the UVF are currently standing trial for 97 charges, including murder (full details as to who is on trial are provided in the BBC’s article here). Two brothers, David and Robert Stewart, members of the UVF, are giving evidence against these men. Both men had admitted involvement in the murder of UDA leader Tommy English, and in return for this evidence received a lighter sentence for that crime. This was inline with provisions of the Serious Organised Crime and Police Act 2005.
The difficulties for police and prosecutors in gathering evidence in such cases can be insurmountable. If there’s little forensic or material evidence and no witnesses (if there were any) want to come forward then there can be little to go on, in spite of a situation of everyone ‘knowing’ who did it.
But is a supergrass the answer? This involves relying on the word of someone who not only has admitted involvement in criminal activity but who is directly benefiting from providing evidence which will secure convictions. They will not benefit from evidence that goes to show that someone was not involved, only from evidence which tends towards involvement and guilt. Often these are people who will over time have lied (or at least provided contradictory stories) to police and other officials. Indeed, when McCrady’s evidence was being relied on Lord Chief Justice Lowry commented that his evidence was ‘bizzare, incredible and contradictory.’
Invariably this is the only evidence presented to the court so the judge (there is no jury, see below) will be making his decision as to guilty on the basis of the credibility of this witness. This involves an assessment of whether the story presented is coherent and believable and whether the witness seemed like a believable witness. How does this provide evidence of guilty ‘beyond all reasonable doubt’?
The risks are immense: we may convict an innocent person because who knows the motivation of the supergrass, we deny the rights of an accused person to a fair trial and we have reduced the sentence of a convicted offender. Prof John Jackson, writing in the 1980s, mentioned allegations that police were encouraging suspects to grass on particular terrorists.
Add to these concerns the fact that this current trial and those which took place in the 1980s were before a judge, with no jury. Diplock Courts, as they used to be referred to, were held in this way to reduce concerns as to jury intimidation. In these cases the right to trial by jury is denied to an accused because of safety and security concerns.
We should also bear in mind recent changes to the law on inferences from silence which allows a judge to draw negative inferences from an accused’s failure to answer certain questions from the police, or to testify in court. The right to silence is being denied to address difficulties in securing convictions when accused persons fail to speak.
Looking at the use of supergrass witnesses is, to my mind, in and of itself enormously problematic but placed in this context of the range of curtailments of rights which have been introduced since such trials were first abandoned in the 1980s makes it even more incredulous that this trial is proceeding. A range of mechanisms have been introduced to make it easier to secure such convictions: if those are not sufficient we should be seriously questioning whether this case should proceed. Yes, persons invovled in criminal activity, particularly serious criminality as in this case, need to be prosecuted, but if we resort to supergrass testimony we bring the integrity of the criminal justice system into disrepute.