RightsNI is delighted to welcome this guest post by Luke Moffatt, Louise Mallinder and Kieran McEvoy.
Dr Luke Moffett (firstname.lastname@example.org) is a Lecturer at the School of Law, Queen’s University Belfast. Dr Louise Mallinder (email@example.com) is a Reader at the Transitional Justice Institute, University of Ulster. Prof Kieran McEvoy (firstname.lastname@example.org) is Director of Research at the School of Law, Queen’s. With Healing Through Remembering, they are working on the AHRC funded project ‘Amnesty, Prosecution and the Public Interest in the Northern Ireland Transition’.
In an interview with the BBC and later reproduced in the Belfast Telegraph on Wednesday 20th November, the NI Attorney General, John Larkin, called for an end to all prosecutions, inquests and public inquiries related to the Troubles. The proposal expanded on ideas Mr Larkin had initially proposed at a conference held as part of our project in May 2013, and it reportedly reflects Mr Larkin’s submission to the Haass process.
Over the past couple of days, the Attorney General’s comments have provoked heated public debate including responses from the British Prime Minister and the Taoiseach. In Northern Ireland, the main political parties were broadly united in their condemnation of the proposals. Across the political spectrum, only the newly formed NI21 party welcomed the proposal. Perhaps inevitably on the issue of amnesties, many of the reactions were very emotive and at times the public conversation generated more heat than light.
This post will evaluate Mr Larkin’s recommendations. While we will argue that some aspects of the Attorney General’s solutions are problematic, his comments are nonetheless worthy of serious consideration. In particular, they bring to the forefront of public debate the substantial challenges that exist in prosecuting Troubles related cases.
Do the proposals amount to an amnesty?
In making his call for a ‘stay on prosecutions’, the Attorney General carefully avoided using what he described as the ‘emotionally loaded word’ of amnesty arguing that;
It is misleading to refer to my proposal as an amnesty. It is not an amnesty; it is a stay on prosecutions. One form of amnesty is the wiping out any offence that may have been committed. In these proposals, the convictions of previous years stand. We are simply saying they happened but we will not prosecute them.
As outlined in the recently published Belfast Guidelines on Amnesty and Accountability, amnesties are introduced around the world for many different reasons and can have a range of legal effects. In a small number of cases, this has included erasing criminal records, but this is not a core feature of amnesty laws. However, all amnesty processes are defined by the objective of bringing to an end the possibility of criminal (and sometimes civil) liability for a specific group of people or offences. This is exactly what the Attorney General’s proposals seek to achieve.
In the vast majority of cases, granting an amnesty does not convey that the actions of the persons getting the amnesty were legal, nor does it deny that those actions were committed. Instead, by granting an amnesty the state publicly acknowledges that the crimes occurred, and in some cases, amnesties are used to encourage offenders to tell the truth. Amnesties do not necessarily entail ‘wiping out any offence that may have been committed’. In short, the Attorney General’s proposals do amount to an unconditional amnesty for historic cases.
Amnesties or other ways of limiting criminal sanctions have been used in the past in Northern Ireland on several occasions to address specific issues related to the past. They are also frequently used around the world with research undertaken by Mallinder identifying over 530 amnesties in 128 countries since the Second World War. In the vast majority of these cases, amnesties were introduced during conflict or in the early stages of a political transition.
It is rarer to see amnesties being used over a decade after a transition occurred. Recent examples where this has taken place include much criticised amnesties in Peru, Surinam and Afghanistan. These cases are all quite different from our current context in Northern Ireland. In these instances, the amnesties were enacted at moments when prosecutions seemed likely or were already underway. In the later stages of a transition, it is more common for other tools to be used to limit prosecutions including:
- Prosecutorial decisions not to prosecute historic cases, usually made on a case-by-case basis
- Decisions that as part of a truth recovery process, individual testimony would have some form of immunity from criminal and/or civil liability
Acknowledging Prosecutorial Realities
As reflected in the CJINI’s report published on Thursday, the Attorney General’s comments are not out of line with the concerns of many of those working in Northern Ireland’s criminal justice institutions. Speaking to the Belfast Telegraph the Attorney General noted,
Any criminal lawyer will tell you the prospects of a successful conviction grow less and less with each passing year.
The Attorney General is correct. Speaking in 2009, Sir Hugh Orde, former Chief Constable of the PSNI, highlighted many of the practical obstacles to prosecuting historic cases:
… the likelihood of solving cases was clearly going to be slight. Witnesses would be old or dead. Exhibits, if still available, could be contaminated or inadmissible. Informants and agents would be in the mix; the original paperwork incomplete or missing… At the height of the Troubles, 497 people were murdered in one year. The forensic laboratory was blown up twice. Numerous police stations were blown up, stations housing much of the investigative material. (full transcript is available here),
The impact of these evidential difficulties is evident when we consider that the 1850 reviews completed by the Historical Enquiries Team have only resulted in two conflict-related convictions. Added to this are the consequences of the Early Release Scheme, which mean that individuals prosecuted today for paramilitary offences (if they belong to an organisation still on cease-fire) will only serve a maximum of two years in jail.
Although the likelihood of prosecutions is remote, current public institutions tasked with investigating the past, such as the PSNI, the Public Prosecution Service, the Police Ombudsman and the Coroners Office have expressed concerns regarding their capacity to investigate historical cases in an adequate and timely manner, and the negative impact that further delays may have on their institutional legitimacy. In addition, of course, the threat of prosecutions may make offenders less likely to disclose the truth of their actions.
Does the Attorney General’s Proposal Comply with the European Convention on Human Rights?
The British and Irish governments are parties to the European Convention of Human Rights. As such, they are required to abide by this convention and decisions issued by the European Court of Human Rights. With respect to Articles 2 (right to life) and 3 (freedom from torture and ill-treatment), the Court has found that not only must states refrain from committing these violations, but where they have been committed, states must also conduct investigations. Through its case law, the Court has repeatedly found that to comply with the convention, these investigations must be: effective, prompt, transparent and independent. Over the last 12 years, the Court has decided in over a dozen cases that investigations into deaths during the conflict lacked independence, were not effective nor prompt, and prevented victims’ access to the investigation files. As a result the European Court found the UK government in violation of its procedural obligations under Article 2.
The court’s case law has been clear however that the duty to investigate does not amount to a duty to prosecute. Instead, in Finucane v UK, the Court acknowledged the substantial challenges to prosecuting historic cases in Northern Ireland. More recently, in Tarbuk v Croatia, the court argued that even for violations of the right to life, a state may enact any amnesty that it deems necessary, provided it balances the legitimate interests of the state against the interests of individual members of the public.
This suggests that an amnesty or ‘stay on prosecutions’ would comply with the European Convention on Human Rights provided that effective, prompt, independent and transparent investigations were conducted. It is difficult to envisage how a ‘stay on prosecutions’ which was not accompanied by such investigations would be compliant with Article 2.
Truth Recovery and the Role of Archives
The Attorney General’s proposal suggests bringing current investigative processes to an end. He recommends there should instead be;
a huge public facilitation of access to State records, above and beyond what is currently available under Freedom of Information legislation. The State should make its archived resources available with appropriate safeguards to members of the public who want to find out what happened to their relatives during the Troubles.
He also argued that these records should be made available to journalists and historians whom he rightly suggests are better at historical research than lawyers.
This proposal does have some merits. For example, in a context where prosecutions were not going to be pursued, it would enable the archives held by the Public Prosecutions Service to be opened to scrutiny. Such files could be one important element of documentary evidence of state and paramilitary offences which could be used to corroborate or challenge the testimony provided by such actors in any truth recovery process. However, recent experiences of releasing of British official archives indicate that this might be slow process. Furthermore, it is unclear what documentary evidence is available. Nor can it be ascertained yet how reliable or complete this information might be.
Whatever the practical challenges, at the legal level, simply making documents available to victims is unlikely to satisfy the United Kingdom’s investigative obligations under the European Convention on Human Rights. In effect, this would mean that there is no official investigation of the individual cases by an independent body. Instead, victims would have to request access to materials, then make their analysis of the documents that are released to them. The experience of the Historical Enquiries Team would suggest that more information can be gleaned when victims are supported to ‘ask the right questions’ or to ‘look in the rights places’. While some victims may welcome the possibility of gaining direct access to information rather than going through a conduit like the Historical Enquiries Team, for many victims this might be quite an onerous task.
Again, it is hard to see how making some files available would meet the Article 2 requirement for an effective investigation.
The Attorney General has been vilified in some quarters for his intervention. However, while perhaps some elements of his proposal might have been presented more sensitively, and we do not agree with all of it, this was a serious contribution on a matter of widespread public interest. As a lawyer, he is perhaps better placed than some politicians to be honest to victims about the limitations of the prosecutorial approach. In the longer term, John Larkin’s input may be well be viewed as a critical moment in our efforts to deal with the past.
More information and details on the issues raised here can be found in our submission to the Haass all-party talks available here as well as further resources on our website here. Videos of the conference we held with the head of the HET, the Attorney General, the Director of Public Prosecutions, and the Police Ombudsman can be found here.