Failure - A Brilliant Experience
BBC Radio Ulster
9 March 2016
(begins time stamp ~ :07)
WC: Barra McGrory, the Director of Public Prosecutions (DPP), has been in the news in the past couple of weeks with the collapse of the case against the only remaining suspect now in the Omagh bombing, Seamus Daly, and the decision this week not to prosecute in the case of Daniel Hegarty, you'll remember: the young, fifteen year old boy shot dead by a soldier in 1972. Both cases raise some very serious concerns about whether our prosecution service, or indeed any other aspect of our criminal justice system, is likely to deliver the truth and justice that so many families are still pursuing – in some cases many, many decades after they lost a loved one.
Barra McGrory came into the Talkback studio this morning to talk about what happened in those cases and the role the Prosecution Service could have in a reference to deal with the legacy of The Troubles. I began by asking him if the last four and a half years at the helm of the PPS (Public Prosecution Service) have been a challenging time for him?
BM: It's been a brilliant experience for me, as a criminal lawyer, to undertake responsibility for all of the prosecutions in the jurisdiction particularly having been a defence lawyer for so many years. So I think it's, I believe I've been able to bring something to the table: A perspective on criminal justice which hopefully includes the totality of my experience. I've also been on a steep learning curve in terms of understanding how big organisations work, the relationship between big organisations and government, funding, staffing issues in a big organisation - all new to me having come from private practice on a much smaller scale. But I think perhaps the biggest challenge has been in dealing with people's perceptions of the prosecution service and prosecutorial decisions and also the challenge of having responsibility for everyone else's conduct and for things that go wrong so...
WC: What do you think is the public's perception of you and of your organisation's work?
BM: Well, I think a lot of people put a lot of store in the results of the criminal justice system - those who are victims, those who are related to victims and also those who are brought before the criminal justice system as defendants - so there's an awful lot at stake. And we are the I suppose the organisation or the agency which is responsible for the delivery of prosecutions and therefore if they do succeed or don't succeed people will attach responsibility to us. So I think we have a responsibility to deliver that service to the best of our ability. And I think if there's anything I've learnt over the last four years it's the need to communicate to people as best one can the reasons for decisions - people aren't necessarily going to like them - but at least if we give as much information as we possibly can then at least there is a good chance they'll be a better understanding.
WC: The most high-profile recent example of that is, of course, is the Omagh bombing with the collapse of the prosecution against Seamus Daly, the only remaining suspect in relation to that atrocity. And of course the families - devastated by the collapse of that prosecution. Do you feel equally devastated?
BM: Absolutely. And I can tell you I thought long and hard about this prosecution because the police came to me and to the organisation in the aftermath of the civil case with what was essentially the same evidence and asked if we would re-visit the case from the perspective of a criminal prosecution. Now, given what is at stake in this case, of course, I did so without hesitation. But I was fully aware when the decision was taken to take the case that the standard of proof required in a criminal court, of course, is much higher than a civil court and that it would be difficult. But, after a thorough examination of all of the evidence I and others in the prosecution service took the view that the test was met: That there was a reasonable prospect of a conviction. Now, we knew that it wasn't that far over the line, in prosecutorial terms, but that if all of the evidence that was given to us held up, and we'd no reason to believe that it wouldn't, then I felt that there was a reasonable prospect of a conviction.
Now but we also knew that if a problem arose in respect to any aspect of that evidence that that test might no longer be met. And that is what has happened. The safe thing to have done would have been not to have taken the case. People weren't necessarily expecting another criminal case in Omagh. It would have been easy not to take it. It would have been risk averse. But I didn't think that was the right thing to do. The difficulty is that once we take the case expectations are raised, people have to re-live the trauma and the case ultimately had to be withdrawn because significant difficulties arose in respect of the evidence.
WC: A key witness became unreliable.
BM: A key witness became unreliable who had given evidence in the civil case and whose evidence was appraised by the judge in the civil case as being reliable and trustworthy and problems arose under cross-examination...
WC: ...Those are evidential and legal issues which you have to be concerned about, of course you do, but the families of those who lost their loved one in Omagh, and perhaps Michael Gallaher speaks for them, who lost his son in that atrocity, he says: Those who were behind this bomb have clearly gotten away with it.
BM: Well there has been no successful prosecution and that is regrettable but we can only do what we can with the evidence that we're given.
WC: But it does raise the question, doesn't it, whether your department is even capable of prosecuting Troubles-related crimes?
BM: Well the Public Prosecution Service is well-capable of prosecuting any crime if it has the evidence but the evidence must be available and it must be to a certain standard that will leave us in a position where we are confident that there's a reasonable prospect of a conviction in a criminal court. So, the problem with what is termed as 'legacy cases' is that they, as we've seen this week in not just Omagh but other cases, is that the older a case is the less likely it is the evidence will be of sufficient quality to bring about a conviction in a criminal court.
WC: And there's a linkage there isn't there? To the police who provide the evidence which you then assess in terms of whether or not to bring a prosecution. Are they capable of policing Troubles-related issues? And they have raised questions many times about their ability to police the present and the past.
BM: Yes, I think it's not so much in the capability of the respective agencies, as in the police and ourselves, it's in the quality of the available evidence and for...
WC: ...Well, the resources you put into in collecting that evidence could be a signal, issue really, for the police in terms of whether they're able to get the evidence which they can then bring to you.
BM: Yes. I'm very worried about it as DPP on a number of levels. Firstly, not just because the organisation will ultimately have responsibility for delivering those prosecutions but the PPS, don't forget, it was conceived of post the Good Friday Agreement; it is a post-conflict concept. It was created following the criminal justice review which sought to achieve a prosecution service which was completely independent of what might be termed as 'Northern Ireland politics', was completely independent from the police or from the United Kingdom government as well. So that's how the Public Prosecution Service came about. A lot of work has been done to insure that there's maximum public confidence in our organisation despite mistakes that may have occurred, the perceptions about some of our decisions, the reality is we have a very high success rate – an eighty-four percent success rate in the crime court. Believe it or not our public confidence figures are very high, they're well into the seventy percent, over seventy percent, seventy-four percent - so we've come a long way. And one of my principal concerns about having to address the legacy issue, and I'm not saying it shouldn't be addressed – that's a political decision, is that we will risk a significant diminution of that level of public confidence and we will simply be unable to deliver anything like that success rate.
WC: You're worried about becoming mired in politics.
BM: Well it's a reality of life in this jurisdiction. The problem with these cases is that: Look, the memories have faded, materials have disappeared, forensic evidence that might have been available is no longer available, witnesses have died, witnesses are not available for other reasons. They're going to be very difficult cases...
WC: ...But even when evidence is there you have another test, don't you? The public interest test, which you have to have regard to. Is it in the public interest to bring a prosecution?
BM: Well I think on a case by case basis I think it will nearly always be in the public interest to bring a prosecution where there's evidence that a crime has been committed by an individual. That's our starting point. I think society has to perhaps weigh-up in terms of the legacy issues as we call them, I'm not terribly comfortable with the term, William, but these issues, I think it has to be accepted that in order to investigate them and prosecute them is an enormous undertaking. What we're talking about here is a bitter conflict which led to not just thousands of deaths but thousands of other injuries over four decades. The undertaking to investigate such a monumental amount of crime over four decades is massive! It will be hugely expensive. The hundred and fifty million that they talk about having been set aside won't come anywhere near the cost of doing this. There are millions of documents. Millions! Over ten million documents apparently to be assimilated and examined. As I said I've expressed my concerns about the quality of evidence so even after all of that is investigated within criminal justice there will be huge difficulties in coming to prosecution decisions. I fear that the vast majority of cases may not be prosecuted and those which may be prosecuted will be difficult. So there will be a huge public confidence issue to be addressed.
WC: There is another approach that's on the table that has been put there by the Attorney General, John Larkin, which is: To end prosecutions and inquests and inquiries - to draw a line under the past – to police and prosecute the present, as it were - and to move on.
BM: Well, I think there's a political issue around that. The Attorney put that out for debate, which is his absolute right, and it's raised some very interesting questions but it seems to me that there's another aspect to it in that: Yes, one can say end all criminal prosecutions but there perhaps has to be something in its place and we need to have an examination as to what that might look like so...
WC: ...A truth recovery process that is, maybe, not judicial?
BM: Something along those lines perhaps but it is not for me to engage in that debate, personally. What I'm going to do today is just talk to you about the criminal justice perspective...
WC: ...But if you can't agree or disagree with John Larkin on that what would you do? What would your proposal be to deal with these issues around legacy? To give confidence to the public in terms of truth and justice issues without banjaxing essentially the post-conflict nature of the very organisation that you lead?
BM: As I said, I'm worried about it and the effect on the perception of the prosecution service but it's not my job to prescribe an alternative solution other than criminal justice. What is my job to do is to say: Look, nobody need underestimate the scale of a criminal justice process in the context of our past conflict. And I do worry as Director of Public Prosecutions that some key issues have not been considered in this debate. First and foremost is the sheer scale and cost of it outweighed against the prospects of success. So there's a value judgment to be made by society and our politicians as to whether or not that is the correct approach. There are other difficulties that I foresee in terms of the application of criminal justice to the conflict issues on all sides. In terms of the paramilitary campaigns there were investigations and there were criminal justice processes which resulted in many convictions. We would be re-doing those and yes in some occasions there may be new evidence and new material and there may be opportunities for further prosecutions but I'm sounding a note of reality that they will be likely to be few and far between.
WC: What I hear you saying is: Look, it's not for you. You're not a politician. It's not for you to say how we should deal with these legacy issues - you work in criminal justice and in prosecutions. But if the politicians, if the public expects you to do that what you're saying in response is: You'll do that, if that's the job they've given you, but it's an impossible task and it's doomed to failure.
BM: Those are not my words. What I'm saying is I'm sounding a note of caution that expectations perhaps need to be tempered in terms of the potential results of such a process. In the terms of the state cases as well where arguably there have not been investigations previously they're going to be fraught with difficulties as well but I can understand the constituency which says: Look, this has never been investigated before. It must be now. There will be difficulties when it comes to the application of criminal justice to those cases. There will be huge public interest immunity issues, there will be huge disclosure issues in the context of criminal justice which is entirely separate from the debate about the level of disclosure around national security and the information retrieval end of things from a criminal justice perspective they will also be difficult prosecutions.
WC: You're running into walls everywhere.
BM: That's not to say they shouldn't be investigated or shouldn't take place but again as an experienced criminal lawyer who's been on both sides of the system I think it's perhaps prudent for me to sound a note of caution about the prospects of such a process actually bearing fruit.
WC: On this point the First Minister expressed a wish to meet you around Omagh and some of these issues. Have you had that meeting?
BM: Yes. Yes, I did. I did.
WC: How did that go?
BM: It went very well. And I have no difficulty by the way – some people had said – expressed concern - about political interference. There's no political interference in me explaining situations to any politician, whether it be the First Minister or the Deputy First Minister or anybody else, so I had no difficulty with that suggestion that we have a discussion – at all. And yes, I did. I explained the circumstances around the Omagh case to her and we had some discussion around the broader issues as well and that's a good thing.
WC: Is it possible when you're looking at the evidential test and the public interest test in respect to prosecutions, that the peace process and the security of the peace process becomes an issue within the public interest test - that you might not want to bring a prosecution if you take the view that this could actually endanger this peace process, which is sometimes very fragile anyway, is that part of the public interest test?
BM: I don't think that's part of the public interest test for a prosecutor to be honest with you...
WC: ...It's never been an issue?
BM: It's never been an issue. I mean we base our cases on the evidence. The sort of public interest issue that would concern us would be around issues around the illness, infirmity of defendants or witnesses or the level of crime compared to the potential consequences, perhaps. That sort of issue, which we apply across the board, and nearly in all cases there will be a public interest in prosecuting.
WC: So you'd never stop a prosecution because you were concerned that this actually could wreck the peace process or endanger it even.
BM: Absolutely not.
WC: The Daniel Hegarty case – another very difficult one. The family – again – devastated – that this young - what? - fifteen year old boy shot dead in 1972. They're still looking for truth. They're still looking for justice.
BM: It's been a difficult week for us because we've had the Omagh case and we've had the Soldier B case concerning the tragic death of Daniel Hegarty...
WC: ...Much more difficult week for the families.
BM: Yes. And I mean you know I spent some time with the Hegarty Familty and explained the legal difficulties in that case but that is a classic example of a case which is many years old in which we had significant evidential difficulties: The soldier who was with him has never been traced. The original statement that he made to the Royal Military Police is inadmissible in court. There are other difficulties around the evidence which left us in a position where we felt that the test wasn't met and I mean without fear or favour, if the test isn't met we'll not take the case.
It would be wrong to take the case knowing that it's highly unlikely we're going to get a conviction. And the state of the evidence just wasn't sufficient in my opinion and in the opinion of other senior prosecutors to bring the case.
WC: Which brings us back to this perception that the public have that: We're never going to get justice - we're never going to get truth on most of these issues to do with legacy.
BM: I understand that...
WC: ...We keep running into brick walls whether it's national security or a lack of evidence or police resources in policing the past. We're not able to do this job.
BM: Well I would never say never either. I mean don't forget out of the HET (Historical Enquiries Unit) period where they looked at I know well over a thousand cases but Prosecution Service did take four significant unsuccessful prosecutions arising out of that. Now that's four out of I think seventeen hundred cases that were visited by HET but you can never say never. You can never say never. And that is the difficulty...
WC: ...It's a very low return, isn't it?
BM: Well, that's why I'm sounding a note of caution about the expectations of...
WC: ...Well what are you hoping the politicians will hear from that note of caution?
BM: They're the people who our society will elected to take these extremely important decisions about how we're governed and in terms of how we deal with our past. But I would just simply say to the politicians that: Look, when the election is over and they sit down to re-visit the issue that stock needs to be taken I think about some of the difficulties. And I'm not entirely sure just how much those difficulties have been weighed in the balance here in the decisions of leadership that they must make. That's for them to consider.
WC: That still a little cryptic. Flesh that out a bit for me.
BM: Well no, I'm just saying...I'm repeating myself now at this stage is that: Look...
WC: ...I just want you expand it - the difficulties – I mean you don't want me to be putting words in your mouth - but it does sound to me as an independent listener to what you're saying that you are sounding a note of caution to our politicians in the hope that they will interpret that as you saying: You've got to do this differently. You can't keep doing it in the same way. The way we're doing it right now - it's not working. That's what I'm hearing you say. Is that what you're saying?
BM: No, I'm not saying it isn't working because it hasn't happened yet in I mean in terms of...
WC: ...I mean am I reading too much into what you're saying?
BM: No. But I think I've expressed it in my own terms which is that...
WC: I know, but these are quite cryptic terms. I just want our listeners to understand what the Director of Public Prosecutions is saying to our political leaders and if you are saying to our leaders: The way we're doing this right now is not working. We can't keep doing it this way if you want to achieve truth and justice this isn't the way to do it. If that's what you're saying?
BM: ...No. That's not what I'm saying. What I'm saying is that I'm fleshing out some of the difficulties which I'm not entirely sure have been fleshed out in the debate so far which is to highlight the reality that while there may be some successful prosecutions that the number of successful prosecutions is likely to be very low. That is the hard reality.
WC: And lower with every year that we go forward?
BM: Absolutely. That's just the reality of any criminal case. And what we're talking about here is going over many, many, many incidents over four decades in which there will a vast amount of material to be examined. It's going to take a very long time. It's going to be very expensive. I'm not saying that's not the right thing to do that's for the body politic to determine. But I...
WC: ...But what you are saying is the likely outcome is going to be very, very disappointing for many, many people.
BM: It's going to be difficult but my concern is: Look at this week and the criticism and bitterness and disappointment that has been brought about in two cases. Let's multiply that by many once we embark upon the investigation and potential prosecution of the four decades of the conflict. So all I'm saying is that I am worried, as Director of Public Prosecutions, about the impact that is going to have on the criminal justice system and the public's sense of credibility of that system in terms of public confidence.
WC: But that still sounds to me like you're making an argument for not doing things the way we're currently doing it.
BM: Well all I'm saying is it's going to be difficult and that's for the politicians to determine.
WC: I know you don't want to stretch into politics. You're beyond politics in this role. But you are reaching out to politicians with those words.
BM: Look, all criminal justice is political...
WC: It's all linked.
BM: ...in the sense that how we administer and deliver criminal justice is determined by those whom we elect to legislate for the administration of justice so that's the only extent to which it's political.
WC: You glad you took this job?
BM: Oh, extremely! Extremely! It's been a very rewarding time. It's not easy. And I did come here by the way William, to talk about a lot of other issues and a lot of the good work that I think we've done in the Prosecution Service which we have designed and re-shaped over the last six months but as is always the case...
WC: Well let me give you the chance. What has changed?
BM: As you know, all big departments have faced considerable financial constraints in recent months and that has been an opportunity for us I think to re-visit how you do things. The PPS was set up in 2005 on a four region structure with eight offices. We've had to really re-design the whole organisation and we've re-created it as a two region, east-west type organisation with three big offices and we've centralised some functions. And we've taken the opportunity to address some of the difficulties that have arisen in certain types of cases, like the more difficult sex abuse cases. We've had some difficult experiences, the case involving Máiría Cahill being one of them where Sir Keir Starmer produced a very helpful report which highlighted some failings and difficulties in the processing of those cases, and we've responded to that and have set up a new serious crime unit which will be centrally based which will hopefully bring cases of a more serious nature, but of non-organised crime or terrorist nature, to court more efficiently.
WC: And you also essentially publicly acknowledged that you messed up in that case.
BM: Mistakes were made in that case. There were organisational mistakes. There were significant failings in communication between PPS Staff and counsel representing the PPS.
WC: Keir Starmer said you failed.
BM: Yeah, but I've acknowledged those failings. But what I've done is I've publicly acknowledged them so there's a public accountability and not only that but I have addressed the causes of those mistakes and I think, as a leader of an organisation, that's the best way to respond to it rather than trying to brush things under the carpet.
(ends time stamp ~ 28:35)