Remembering the past but forgetting the present

We are delighted to welcome this guest post from Kevin Hearty. Kevin Hearty is a final year PhD student at the Transitional Justice Institute, University of Ulster. The following post is based on his PhD research examining the role of memory in the wider Irish republican debate on policing. Kevin can be contacted by e-mail at

With the intensification of the Haass talks on ‘dealing with the past’ and the recent comments from the Attorney General John Larkin (for RightsNI coverage see here)  in relation to prosecutions for conflict related killings many eyes in the North of Ireland are again turned towards the past and issues that just won’t ‘go away’. How can we ‘move on’, the question runs, if issues from the past remain unresolved?  Are we simply putting divisive and thorny issues on the long finger until we are forced to confront them when they steal the headlines whether that is through the emergence of the flag protest movement, recent revelations into MRF targeting of civilians (discussed on RightsNI here) or the Smithwick report of Gardai collusion with the IRA.

The murder of human rights lawyer Pat Finucane is a case par excellence of an unresolved issue that refuses to go away. Despite the De Silva Report reporting aspects of collusion in the case the British Government has thus far refused to hold an independent inquiry into the killing, much to the dismay of the Finucane family and human rights groups. Notwithstanding the fact that the British state should come clean on the Finucane killing and other killings – as all actors in the conflict should now do – there is something of an assumption that if the state fully acknowledges collusion via the findings of an independent inquiry they will have atoned for the past wrong and the issue of Pat Finucane and his murder as a human rights lawyer defending those charged with conflict related offences will be consigned to the past. The state will have ‘owned up’ and the issue by and large will therefore have been ‘dealt with’. There is however one problem with such an assumption. An increasing body of evidence emerging in recent times suggests that the circumstances that gave rise to the Finucane murder may not be as far away in the past as some would imagine.

Those familiar with the case of the ‘Craigavon 2’ will be aware of the premise that this growing opinion is based on. In the course of a recent appeal by Brendan McConville and John Paul Wootton – and as campaigners for the men in the Justice for the Craigavon 2 group point out the crux of the matter is ultimately not tied up in determining the guilt or innocence of the men but simply concerned with exposing the legal and human rights shortcomings of their initial trial and conviction – in relation to their conviction for the killing of PSNI Constable Stephen Carroll it emerged that the police had interfered in the case to the detriment of the accuseds’ defence case. One such interference involved the deliberate deletion of a crucial segment of data from a tracking device. Perhaps more sinister is the fact that an attempt was made to force an elderly defence witness to claim that he had been coerced and pressurised by a defence solicitor into signing an affidavit in defence of both mens’ case. The elderly witness was taken to a PSNI station that seemingly did not have visual or audio equipment, to be questioned and to have pressure put on him to implicate a defence solicitor in the fabrication of evidence relating to the appeal. Had the witness in question not had the personal integrity and moral wherewithal to refuse to partake in such a despicable process the reality is that the solicitor in question would not only have lost their professional license but found themselves before the courts. This incident however was not a flippant aberration as it later emerged that the ‘intelligence services’ had defence solicitors in the case under surveillance. To compound matters further solicitors in the case – as well as an increasing number of others – have been subjected to ‘fellow traveller’ claims by some quarters.

There are many problems with such claims. Firstly they overlook the separation of the role of the defence solicitor and their clients alleged offence in a way that defies simple logic. One would not suggest for example that a solicitor who represents a drunk driver is likely to drive home from his days work in court whilst under the influence of alcohol nor would one suggest that those representing clients charged with theft are likely to run off with the judge’s gavel if it is not nailed down. Secondly it is an attack upon the professional integrity and reputation of such solicitors- and not in a careless way either but in a contrived way with an obvious ulterior motive. Finally and perhaps most worryingly it creates a context whereby those solicitors are put at risk of death or injury as a result of such reckless ‘fellow traveller’ claims. It is only natural upon hearing this latest development in 2013 that one would recall Douglas Hoggs’ ‘fellow traveller’ claims made in the House of Commons in the prelude to the Finucane murder.  In such a context there is palpable resonance with Rosemary Nelson’s – herself to be violently slain in the midst of such unfounded allegations (report here)- question that ‘if we don’t protect human rights lawyers who will protect human rights?’.

All of this of course is not happening as a standalone problem but forms part of a wider problem in relation to certain aspects of policing in the North of Ireland. CAJ have for example shown that ‘anti-terror’ provisions are not only being used for a manner they were not intended but also against those they were not intended to be foisted upon ie those engaged in legitimate non-violent opposition to the state. Added to this are the claims of republican groups that ‘internment by remand’ is being widely used whether that be through the non-disclosure of ‘intelligence’ based evidence  for the revoking of Martin Corey’s licence (for the press release of the recent Supreme Court judgment see here) to his legal team or the continued detention of Stephen Murney on dubious evidential grounds or the arrest, detention and effective deportation of American student Zachary Gevelinger under ‘anti-terror’ legislation for simply visiting republican prisoner Christine Connor in Hydebank jail during the summer.

The cumulative effect of all of the above is to pose serious questions for the state as to whether some within the policing apparatus of the state have decommissioned their ‘conflict mentality’ and come to the conclusion that their ‘war’ is over. As unpalatable as this may seem in a society that has increasingly ‘moved on’ from the widespread ‘suspect community’ policing of the past the fact remains nonetheless that ignoring the rather large political policing elephant in the room will not make it go away. In a society that is beginning to enjoy increasingly normalised policing there can be no denying that certain aspects of policing problems from the past have been eradicated and that reform has been welcome and successful. On the other hand however we must not allow this to blind us to the fact that the aspects of current policing as alluded to above remain increasingly irreconcilable in a post-conflict society imbibed with a new human rights ethos. Ignoring the problem will not make it go away but will simply allow it to fester beneath the radar until it conflagrates in a manner that has far reaching human consequences as in the Finucane and Nelson cases and in past cases of miscarriages of justice.

Ignoring the issues of flags, parades, the HET, victims’ demands for truth recovery etc did not make those issues go away nor will it make problems with political policing go away. So whilst we clamber over ourselves to ‘deal with the past’ – and the past should indeed be dealt with most notably by those involved in the whole sorry mess – let’s not take our eye of problems that are perhaps not so much in the ‘past’ as we would like to think they are.