We are delighted to welcome this guest post by Professor Louise Mallinder, Transitional Justice Institute, Ulster University. Louise can be reached on email at firstname.lastname@example.org, and on twitter @MallinderLouise
This briefing paper has been produced as part of the CAJ-QUB Business Alliance Project entitled ‘Dealing with the Past: Northern Ireland the European Project’. This project is exploring how legislation can be used to enact the dealing with the past components of the Stormont House Agreement.
This briefing relates to one aspect of this broader project, namely how information provided to the Independent Commission on Information Retrieval (ICIR) could be verified. It seeks to provide a rationale for information verification within the work of the work of the ICIR and it outlines five models relating to information verification.
Information Retrieval in the Stormont House Agreement
The Stormont House Agreement (2014) committed the parties of the Northern Ireland Executive and the British and Irish governments to implementing a number of proposals to address the legacy of the Troubles. One of the proposed measures was that the UK and Irish governments would establish, through legislation in both jurisdictions, an Independent Commission on Information Retrieval.
The objective of the ICIR ‘will be to enable victims and survivors to seek and privately receive information about the (Troubles-related) deaths of their next of kin’ (emphasis added). The Agreement provides that individuals from both jurisdictions would be able to seek information from the Commission.
To respond to requests for information, the Agreement provides that the ICIR will be empowered to seek information within the UK and the Republic of Ireland, as well as from other jurisdictions. The Agreement does not go into detail regarding how the Commission will seek such information; however, it does state that the ICIR ‘will build on the precedent established by the Independent Commission for the Location of Victims’ Remains’ (ICLVR). It further provides that, similar to the ICLVR, ‘The ICIR will not disclose information provided to it to law enforcement or intelligence agencies and this information will be inadmissible in criminal and civil proceedings.’ Nor will the ICIR disclose the identities of those who provide information. However, notwithstanding these inadmissibility and confidentiality provisions, the Stormont House Agreement stipulates that ‘No individual who provides information to the body will be immune from prosecution for any crime committed should the required evidential test be satisfied by other means.’
The Stormont House Agreement further specifies that the approaches to dealing with the past should respect the following principles:
• promoting reconciliation;
• upholding the rule of law;
• acknowledging and addressing the suffering of victims and survivors;
• facilitating the pursuit of justice and information recovery;
• is human rights compliant; and
• is balanced, proportionate, transparent, fair and equitable.
Relationship between the Historical Investigations Unit and the ICIR
The Stormont House Agreement also provides for the establishment of an Historical Investigations Unit (HIU) to replace the Historical Enquiries Team and the historic cases investigated by the Office of the Police Ombudsman for Northern Ireland and ‘to take forward investigations into Troubles-related deaths’. In contrast to the information retrieval process, the HIU will be mandated to conduct criminal investigations and where there is sufficient evidence to refer cases to the Director of Public Prosecutions.
The Agreement envisages that the HIU and ICIR will operate in parallel over a five-year period. Given that both institutions will focus on conflict-related deaths, requests for information retrieval made to the ICIR may relate to cases also being investigated by the HIU.
This overlap in mandates has raised some concerns that were the ICIR to request documents from the HIU in order to verify information received, the inadmissibility and confidentiality provisions of the information recovery process might risk contaminating criminal investigations by (inadvertently) revealing information that cannot be used in legal proceedings. This briefing outlines a number of ways in which the ICIR can seek to verify the information it receives whilst also mitigating this risk to criminal investigations.
Overarching Principles on Information Retrieval
Both the HIU and ICIR are to be established to achieve important goals, and neither should function at the expense of the other.
Although the HIU is important as a means of pursuing criminal investigations into conflict-related deaths, the ICIR is also significant as:
• It will offer the possibility for victims to access information that might not otherwise be available. The potential for the ICIR to provide greater information is particularly important in a context where few prosecutions are likely to be possible due to evidentiary concerns, as well as other factors such as the public interest and due process guarantees
• it will provide an avenue for those responsible for abuses and violations to contribute voluntarily to truth recovery (and reconciliation)
• It may provide a forum for facilitating victim-perpetrator encounters
• It will provide a way of identifying themes that can be highlighted to the Implementation and Reconciliation Group (IRG) (another of the institutions provided for in the Stormont House Agreement, which is tasked with appointing academics to investigate thematic issues)
The Nature and Significance of ‘Information Verification’
Information verification is a necessary component of ensuring rigour in the operations of the ICIR. Rigour is one of the general principles on dealing with the past outlined in the Stormont House Agreement.
As with the investigations conducted by the HIU, the information verification process would be unlikely to be able to prove ‘the truth’ with respect to particular events in most cases. However, it could seek to:
• fact check where possible limited elements of an offender’s testimony, eg whether he or she was part of a particular organisation
• identify gaps or inconsistencies within the information provided and then probe these issues further
Such information verification is important in order to:
• Inform questioning during meetings with persons providing information to the commission
• Test the reliability of the information received as far as possible
• Identify other possible avenues for information recovery in a relevant case
• Determine whether further meetings with the information provider are necessary and, if so, to inform the discussions at those meetings
• Determine whether cases are linked and whether they indicate areas that could be recommended to the IRG for thematic examination
Possible Sources of Information
The key challenge with information verification relates to accessing documents held by the HIU. However, it is important to note that these documents are only one possible source by which to verify information provided to the ICIR. Examples such as the Bloody Sunday Inquiry indicate that other sources could include:
• Victim statements provided to trigger ICIR investigations
• Cross-checking information received against information and artefacts provided to the ICIR by different persons relating to the same event
• Journalistic archives – eg interview recordings from the time
• Research conducted into the relevant event by civil society organisations
• Existing academic research, where appropriate, expert assessments of information provided e.g. historians; where artefacts are given to the commission or are already in the public domain (this could be experts to enhance and analyse photographs and sound recordings; ballistics experts etc)
• Holding additional, confidential meetings with relevant organisations eg the Northern Ireland Retired Police Officers Association, the Ministry of Defence, political parties, civil servants, and paramilitary organisations
• Repeated conversations with the information provider – the Bloody Sunday Inquiry report emphasised the importance of repeated conversations: ‘Eversheds made in our view successful use of the cognitive interviewing technique, in which witnesses’ recall was enhanced by encouraging them to recount several times their experiences of the day. In almost all cases, the witnesses remembered significantly more details as they went over the events for a second or third time’.
• Where the ICIR facilitates victim and offender encounters this could enable victims and their relatives to ask questions
• Official records that are in the public domain, such as completed inquests and legal proceedings
Even if the ICIR is able to access documents held by the HIU or other government bodies, it would still be desirable where possible to consult other sources as official documents may in some cases be inaccurate or missing.
Furthermore, where victims and survivors decide to participate in information retrieval processes, it is important at the outset of the process that the format and legal consequences are explained and victims’ consent is formally obtained before the case proceeds. This will include in particular making clear that any new information obtained through this process is could not provide a basis for pursuing criminal or civil proceedings.
Models of relationship between the ICIR and the HIU
The models outlined below are not intended to be mutually exclusive and instead most of the models overlap to varying degrees. The objective of these models is to try to seek balance that would enable both the ICIR and the HIU to function as effectively as possible.
1. ‘Hermetically Sealed’ ICIR that conducts no information verification
Under this approach, the ICIR would seek information from individuals and organisations, and where victims and relatives had requested to receive such information, the ICIR would provide those families with reports detailing the information received, without the information being subject to any verification. In particular, there would be a block on the ICIR requesting information from the HIU.
The approach has the advantage that it would prevent the ICIR accidentally providing ‘leads’ to criminal investigators, which could undermine possible criminal prosecutions resulting from HIU investigations.
It would also enable a very clear message to be sent to those considering providing information to the ICIR that the process is entirely separate to the HIU.
However, if the ICIR is prevented from verifying information, this would limit the scope and reliability of the information available to victims under this process.
2. Information Verification relying on non-HIU sources only
This approach shares some features with model 1 in that there would be a block on the ICIR requesting any information from the HIU. However, unlike model 1, model 2 provides that the ICIR would be able to engage with the other information sources listed above in order to verify information as far as possible.
The approach has the advantage that it would introduce greater rigour into the information recovery process than model 1, and it could increase the reliability of the information received by victims. It would also not run the risk of jeopardising criminal investigations being conducted by the HIU.
This approach shares the disadvantage with model 1 that important avenues for information recovery remain closed off from the work of the ICIR.
3. Limited Requests for Information from the HIU
The Stormont House Agreement does not provide detailed information on how an information retrieval process could be triggered before the ICIR. However, its forerunner, the Haass-O’Sullivan draft agreement provided that information retrieval would be triggered by either (a) a request from victims and relatives that the ICIR investigate their case; or (b) individuals or organisations voluntarily providing information to the ICIR. In this model we assume that the ICIR established under the Stormont House Agreement would have similar trigger mechanisms.
The potential for conflict with the criminal investigations being conducted by the HIU arises only with respect to information retrieval processes triggered by method (b), as it is the (accidental) leaking of information provided by potential suspects that could undermine prosecutions.
In contrast, where an information recovery process has been triggered only by method (a), the commission is conducting preliminary research into the case, and where no possible suspects have yet provided information in relation to the case, model 3 suggests that the ICIR should be able to request information being held by the HIU. This should be the case as at this stage of the information recovery process, the ICIR would not be at risk of inadvertently disclosing information provided by a suspect.
Model 3 shares the advantages of model 2, and has the additional advantage of offering the ICIR enhanced opportunities for information recovery in some instances.
The disadvantage of this approach is that the ICIR is still limited in being able to access documents held by the HIU in cases which are triggered by individuals or organisations providing testimony.
This would mean that victims could be treated in an unequal manner depending whether the possible suspects had engaged with the ICIR before them.
4. Sequenced Approach
Under this approach, the ICIR would only be able to request information from the HIU after the HIU had concluded its investigations in a particular case and determined that there was insufficient evidence to refer the case to the Public Prosecution Service. This approach was recommended by the Consultative Group on the Past.
This approach has the advantages that it allows the ICIR to request information from the HIU regardless of how a case has been initiated as well as using other sources for information verification. It also reduces the possibility of the ICIR inadvertently undermining criminal prosecutions.
However, it has the disadvantage that it will considerably delay the initiation of information recovery processes. Where victims and families have already waited many years for information regarding the fate of their relatives, further delays may be untenable. In addition, given that the ICIR and HIU are intended to operate in parallel for a maximum of five years, further delays may leave the ICIR with insufficient time to complete its work.
This approach is also problematic in that it raises two distinct questions:
• When is a case concluded? It is possible that new evidence may come to light after the HIU has completed its review of an individual case, particularly where the case is linked to other cases. What implications could a decision that is complete and the ICIR could proceed (subject to a request from victim or information provider) have for the reopening of the case should new information come to light?
• Who should determine whether a case is closed? Should this be the decision of the HIU or the Director of Public Prosecutions?
5. Buffer Approach
Model 5 focuses on the issue that it is through the ICIR making requests for documents directly to the HIU that the ICIR may inadvertently provide leads to criminal investigators by revealing which cases it is considering or even particular aspects of a case that it is interested in. To mitigate this risk, while also allowing the ICIR full access to official documents (as well as other sources listed above), model 5 suggests that a disclosure unit is created within the HIU. This unit would be staffed by suitably qualified persons but would be separate from HIU investigators.
It would oversee the HIU archive comprising documents from the Historical Enquiries Team and the Police Ombudsmen, as well as accessing documents held by other sources such as the PSNI, the Ministry of Defence, the Public Prosecution Service, the Cabinet Office, and the Public Records Office of Northern Ireland. Where requested, this unit would be able to disclose materials to other legacy investigative bodies including the ICIR and the Coroner. This would have the effect of creating a ‘buffer’ between the HIU investigators and the ICIR.
The advantage of this approach is that it would allow the ICIR the greatest possible access to materials to assist it in information verification. It would also reduce the risk of cross-contamination between the work of the two institutions.
The disadvantage of this approach is that problems could arise if both the ICIR and HIU requested to access the same documents simultaneously; however, this could be resolved for example by determining that requests from the HIU should always take precedence, in order to prevent HIU investigators being aware that the ICIR is also considering the same case.
Professor Louise Mallinder, Transitional Justice Institute, Ulster University, email email@example.com, Twitter @MallinderLouise