We are delighted to welcome this guest post from Dr Luke Moffett, QUB School of Law. Luke can be reached at firstname.lastname@example.org.
On Monday 18th May 2015 the Transitional Justice Institute hosted a conference ‘Dealing with the Past in Northern Ireland: Implementing the Stormont House Agreement’ in conjunction with Amnesty International, Committee on the Administration of Justice (CAJ) and Institute for the Study of Conflict Transformation and Social Justice (Queen’s University Belfast). The conference launched the consultation of the draft bill on the implementation of the Stormont House Agreement on the Historical Investigation Unit and the Independent Commission for Information Retrieval. The bill was drafted by an expert drafting group including participants from both universities and CAJ, established as part of a collaborative QUB Business Alliance Project between CAJ and QUB School of Law, led by Professor Kieran McEvoy.
At the conference one of the speakers Fiona Doherty QC stood out with her comments on victim participation. Fiona has been heavily involved in the legacy inquests into contentious or unresolved deaths related to the Troubles. Her closing remarks were telling that ‘families’ were the most important part of dealing with the past, and the inquest system did something that no other investigative body did: victims were treated as parties with their own legal representation to present evidence and cross-examine witnesses.
Victim representation is seen as a key component of ensuring an effective and transparent investigation of human rights violations and crimes. In comes as no mistake that the International Criminal Court has, in order to deliver justice to victims, introduced quite extensive provisions of victim participation, where in some cases victims can number in there thousands. Victim participation was introduced as it was felt in many international and national criminal investigations and proceedings that victims’ voices were lost, their felt their interests were not being represented by prosecutors, and as a result there was discontent that victims were being revictimised by such proceedings.
Victim representation and participation in Northern Ireland
A certain form of legal representation of victims’ interests has been suggested in dealing with the past in Northern Ireland. The 2013 Haass-O’Sullivan proposal suggested an advocate-counsellor to ‘ensure [victims] have a full understanding of the services available and can pursue those for which they are eligible. Should an individual wish, access to an advocate-counsellor will be provided to work in the individual’s interest to provide support and to help him or her understand and request relevant services.’ (p 20-21). Reference is again made in the Haass-O’Sullivan proposal to an advocate-counsellor in relation to the Historical Investigation Unit (HIU) with regards to informing families of the progress in investigations. In the HIU an advocate-counsellor would ‘provide logistical guidance and emotional support through each stage of the process.’ It was also suggested that the HIU would ‘offer the services of an advocate-counsellor who can provide support and guidance through this process.’ (p27-28)
In contrast the Stormont House Agreement proposes that in providing services and the notion of victims’ choice that they ‘will be given access to advocate-counsellor assistance if they wish.’ Yet with the HIU reference is instead made to the ‘family support staff’ similar to the family liaisons officers in the HET. The family support staff will ‘involve the next of kin from the beginning and provide them with expert advice and other necessary support throughout the process.’ This is a diluted version of any sort of victim participation under international law, which recommends that victims should have their ‘views and concerns’ heard and considered in criminal proceedings (Principle 6(b), 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES/40/34). It is hard to reconcile the declared ‘victim-centred’ approach in the HIU with family support staff, rather than independent victim advocates.
At the minimum level, to be compliant with the EU Directive 2012/29/EU on victims’ rights, HIU family support staff will have to be trained to assist victims. This Directive requires the Northern Ireland government to implement its provisions by November 2015, and will therefore bind any legislation in relation to the Stormont House Agreement. As part of this implementation the DoJ’s Victim Charter 2014 requires the police to provide family liaison officers. The Directive also stipulates that victims have a right to information, a right to be heard, and to have a decision not to prosecute to be reviewed (Articles 6, 10 and 11, EU Directive 2012/29/EU. This is already applicable in Northern Ireland in the common law following the R v Killick case  EWCA Crim 1608). Any criminal proceedings that may arise from a HIU investigation will have to comply with such rights. The Victim Charter provides some guidance in this area, but requires implementation into practice. For victims to participate effectively and in compliance with the EU Directive greater provision is needed for victim participation for all victims, rather than just those who have access to lawyers, legal aid and expertise.
There are two models that come to mind with an advocate-counsellor: victim support and legal representation.
An advocate-counsellor could mirror Victim Support NI, which provides practical advice, assistance and support to crime victims. This support could advise victims on appropriate services, acting as a signpost to counselling, Victim and Survivor Service supported groups, and legal processes. However, it does not really encourage victim participation in proceedings that affect them. Instead this service based approach frames victims as consumers of services, rather than actors in a process that can contribute to investigative or criminal processes. It does not address the issues of victims’ equal access or participation in investigative and criminal processes.
A second option would be to enable victims to participate as individuals or in groups through a legal representative, who can present their interests in legal proceedings. A good example of this is the Office of Public Counsel of Victims at the International Criminal Court, which provides any victim with free legal representation in investigations and criminal proceedings, as well as legal advice and research support for those victims who have their own representatives (Regulation 81, Regulations of the International Criminal Court. This could ensure compliance with transparency requirements under McKerr v UK, §115.). In investigations and criminal proceedings legal representatives can provide and present evidence, as well as make written and oral submission on issues that arise.
An Office of Public Counsel for Victims (OPCV) could be established in the legislation of the Stormont House Agreement would enable any victim to have access to legal advice and support, informing them of their rights and options. The OPCV would not be limited to the HIU, but could also provide advice to victims in relation to legacy inquests and the Independent Commission on Information Retrieval. The OPCV would be independent, impartial and victim-centred in ensuring victims’ interests are effective presented and considered in relevant processes. The OPCV would reinforce the basic principles of the Stormont House Agreement of the rule of law (equal access to justice), human rights compliant, and facilitating the pursuit of justice and truth. The OPCV could also enable transparency of institutions, like the HIU or Independent Commission for Information Retrieval, by publicising annual reports on victim satisfaction.
In terms of avoiding spiralling legal costs, regulations can be developed to prevent legal representation bogging down historical investigation processes with large legal aid bills. The EU Directive 2012 requires states to provide legal aid to victims participating in criminal proceedings. Issues of cost can be managed, in that legal representatives would have to be drawn from a list of eligible lawyers or representatives, then contracted to work on behalf of an Office of Public Counsel for Victims, signing relevant confidentiality and ethical agreements. Engagement with the HIU and ICIR, would not have to be limited to legal representatives, but could also be through victim group representative, who may have the expertise. An OPCV would provide legal support and research to such representatives.
Advocate-counsellor: Offering anything new?
Many of the issues of victim advocacy or support are already provided through very experienced victim groups. Yet these groups do not represent all victims. Those victims who are not members of victim groups or do not have the resources or expertise to effectively advocate and litigate on human rights compliant investigations and in criminal proceedings are likely to be disadvantaged in the HIU, future services, legacy inquests and the Independent Commission on Information Retrieval. Perhaps an advocate-counsellor is not embodied in one individual or position, but two complementary roles – support and legal participation. Both are required to satisfy victims’ practical, informational and legal needs. At the International Criminal Court the OPCV is supported by a Victim Support NI like body called the Victims and Witnesses Unit (The Victims and Witnesses Unit is an independent body that conducts risk assessments, redactions and disclosure of information). Such a Victims Unit in the implementation of the Stormont House Agreement could use a referral system to the VSS or victim community groups.
Importantly for the Northern Ireland Assembly, EU law and human rights obligations requires a more supportive and participatory role for victims in investigations and criminal prosecutions in dealing with the past. To fully ensure the implementation of the Stormont House Agreement is ‘victim-centred’ then equal, fair and access legal and psychological support should be a vital component. Effective victim participation in investigations not only protects their interests, but helps to ensure the transparency of such mechanisms in addressing the past.