No Sufficiency of Inquiry

Sunday Sequence host William Crawley (WC) interviews Queen's University Belfast School of Law professor Phil Scraton (PS) about the delay of the coroner's inquests into the Ballymurphy killings. It featured on BBC Radio Foyle on 18 November 2012. It was transcribed by TPQ's regular team colleague. 


WC:  Is justice delayed justice denied?
The senior coroner here has suspended inquests into fourteen controversial killings.  Some of the families of those killed have already waited for over forty years.  Coroner John Leckey suspended the inquest this week citing his belief that Attorney General John Larkin may have exceeded his powers in ordering the hearings.  So what are the implications?

Professor Phil Scraton is from the School of Law at Queen's University, well known to all of our listeners on Sunday Sequence.  Phil, Good Morning again.

PS: Good Morning.

WC:  You've got big concerns with this?

PS:  Yeah.  I think the point you start with is absolutely the crucial one.

First of all that people have waited so long for what is a right to an inquiry. An inquest is an inquiry - it's not an adversarial procedure - into these deaths.  We believe and we're committed to in a democratic society, swift, public, open discussion of cases such as these.

So the first issue is the inordinate delays.

The second issue, which is absolutely crucial, is that there has been no, what we call in law, “sufficiency of inquiry”.  In other words, people have a right to a full and thorough inquiry.  And of course what this does in the case of inquests, as we know with so many well-known high-profile inquests, is that it places a high burden on the bereaved on top of their suffering.

In other words it's a kind of multiple injustice. 

And I think that it goes to the heart here of a crucial question which is the relationship between justifiable homicide, which would be an inquest verdict where somebody on behalf of the state and on behalf of us, takes the life of another and unlawfully killed: whether that legitimate force used by the state was actually inappropriate or unlawful in the circumstances.  And that's what the heart of this case is about.  They're called Article 2 cases.  We all have the right to life under Article 2 of The European Convention and now embodied in human rights law, we all have our life, the right to our life protected. 

And of course during the conflict here we saw so many deaths at the hands of a whole range of different people, paramilitary organisations and so on.

What makes this distinct, and it is such an important point, is that these are deaths at the hands of the state.  The state is the only organisation that actually has the monopoly on the use of legitimate force.

And basically what the Ballymurphy families are asking, and quite rightly asking in my opinion, is: was the force that was used against their loved ones, as the ten were killed over a period of time by a military power, was that force appropriate?  They believe absolutely not.

But until they get a full and thorough public hearing in an inquest those issues will never be resolved.

And that does make it makes these deaths, deaths at the hands of the state whether it's the police, prison officers, whoever it is, deaths at the hands of the state has to be taken on a different level.

WC: We talked to you a while ago after the Hillsborough Inquiry report came out Phil, and obviously you're a very significant part of that.  You drafted and wrote the report for them as a leading member of the team and you published a book on the Hillsborough disaster.  Do you see parallels here?

PS:  Oh, yes William.  I've also published one of the only books that's been written on deaths at the hands of the state, In the Arms of the Law, which I wrote years ago, and I mean there are very clear parallels. 

The parallels that are drawn, the fact that people have to have, if you like, a way, a means of understanding the processes that went on that brought about the deaths of their loved ones.  And when you have a long period of delay, as we did with Hillsborough (twenty-three years) where the inquests have now been demonstrated to have been completely inadequate.

And when you have that delay it's absolutely crucial that these issues are brought before us as soon as possible.

Now in this particular case one of the other issues that is crucial is it goes to the heart of the question of devolution of powers.  Now we had the devolution of justice and policing in 2010 coming on the back of other forms of devolution here.

The question that is now asked is:  who has the power in terms of cases such as this?   Of course what we have is the...

WC:  There's a national security dimension.

PS:  Absolutely.  Well, in one sense there is and in another sense there isn't...

WC:  And that hasn't been devolved.

PS:  It hasn't been devolved.  But the issue is that John Larkin is arguing, quite rightly I believe, that within his powers he has the right to order the inquests and have those inquests ordered soon.

John Leckey, the senior coroner, has referred these cases back to the British government because they are matters of state security.

Now this is where the ambiguity lies.  This goes right to the heart, it's crucial, in terms of our understanding and grasp of what devolution really does mean in practice.

John Larkin's position is that he as the Attorney General has the devolved power to order the inquests. 

John Leckey is doubtful of that.  John Leckey's not saying he hasn't the power...

WC:   He's got a question mark.

PS:  He's got a question mark over it.

WC:  Because of the national security dimension. 

PS:  Absolutely!  Because of the national security dimension.

WC:  But is there a national security dimension if any soldier is involved in any killing?

PS:  No, there isn't. I think the crucial issue here is we will never know quite what the national security dimension was or could have been in terms of the discretion that was used by individual soldiers who took the lives of those who died.

So it's not really a question of national security.  It's not as if we're asking for a plan or the families are asking for a plan here of action that was occurring at the time... 

WC:  These are simple forensic questions.

PS:  These are simple forensic questions.

WC:  When was that shot fired?  Why was it fired?  Was it proportionate? All of those issues that you'd normally investigate in an inquiry.


PS:  Absolutely crucial, William.  I mean, the basis of a coroner's inquest is fairly straightforward.   All deaths, all deaths, whatever they are, in controversial circumstances or in contestable circumstances, especially those involving state agents, they have to have a thorough inquest. 

What does the inquest do? The inquest starts with the question: Who died? So it has to identify the deceased; pretty simple and straightforward.

When did they die?  Where did they die?  And how did they die?

WC:  Now that's the difficult one.

PS:  Now the how did they die has always been controversial in inquests because the argument is that you are going into adversarial matters; you're going into matters that would normally be resolved in a prosecutorial court as opposed to an inquisitorial court.  And this has been a major debate that's gone on for years.

Now without going into the legal technicalities of this, until 2000, the year 2000, how was always defined as: by what means. 

In other words, very clinical, very forensic...by what means did the person die? A bullet or whatever, right?

Following a landmark case in England, the Jamieson case, this changed.  And because there were so many cases where these contested issues were not being resolved appropriately in the inquests.

So the re-definition became:  by what means and in what circumstances?

This goes to the heart of the Ballymurphy killings. What were the circumstances in which those people died?  And it's not simply who pulled a trigger, who killed somebody in that instance...

WC:  It includes, for example, the political context.

PS:  It includes the political context.  Were there orders?  Under what restrictions were the soldiers working?

It wasn't as if this was one incident. If we think about Bloody Sunday it was one incident at one moment in time.

The Ballymurphy killings happened over a period of time so that each individual deaths...and what the families, I believe, are asking is we want the circumstances of each of those deaths, not to be just taken simply as a whole, but the circumstances of those deaths to be fully examined.

So, by saying this is a national security question, by arguing therefore  there shouldn't be inquests, those families -and it's regardless of their beliefs, regardless of where they're from - *any families in those circumstances are losing a fundamental right which is the right to have the full and thorough inquiry.

WC:  But you're not saying they won't happen.

PS:  I'm not saying they won't happen.

WC:  What has to happen next to resolve this question?

PS:  Well, I mean it's going to be very interesting to see what the Secretary of State...

WC:  The Secretary of State...actually it's on her desk.

PS:  It's on her desk in terms of what she comes forward with. And of course, if without wanting to preempt it, if she comes forward and says “yes”, that John Larkin has this right and we'll go ahead and the families will have their full and thorough hearing then in that situation I guess it will proceed as planned. 

But if, however, the doubts that have been raised by the senior coroner are agreed with then we're left in a situation where there will be further delays, if not, not necessarily delays, they will never have their inquests in a full and thorough public hearing. 

WC:  And that outcome then leads, and we're not alleging this, but it will be in the air.  People will use the phrase cover-up.  People will say we're not getting to the truth.  Now we're not alleging that.  There may be all kinds of reasons why an inquest doesn't happen.

PS:  Well, my argument would be that it flies in the face of all that would be expected in a democratic society. 

Each individual family has the right to have thorough, full inquiry into their deaths. Even if it means that evidence is given from behind closed doors or without identity.  And actually one of the issues, William, in cases such as this, nobody can force or subpoena anybody to give evidence. 

So it's not as if we’re talking here about a situation where people can be forced before the coroner's court.  The final issue on that very important point is that it does raise a broader question about now what are the workable limits to devolved powers in terms of the Attorney General's office?

WC:  Phil, thank you very much.  Professor Phil Scraton, criminologist from the School of Law at Queen's University.  (ends 1:08 )

11 comments:

  1. Prof Phil Scraton has been to the forefront in highlighting injustices here and in England a rare breed of professional person who is prepared to stand up to the state and its malpractices,he demolished that bigot Morrow on the Wendy Austin radio show in relation to the continuing internment and treatment of Marian Price, a good man glad he,s on the side of truth and justice ,my problem with state killings is if the state says its agents carried out the killings no matter what the circumstances or by what agency then the state should have no where in law to hide they are either justified or they are not there should be no ambiguity,unless of course those agents are acting under orders from the state then the whole unwillingness to have proper due process becomes understandable,then can anyone really blame those would would pull down such a state ...

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  2. How can a senior coroner over rule an attorney General, It should be the other way about, this stinks of special branch/MI5/MI6 sticking there noses in again, It wouldn't surprise me if "A SECRET EVIDENCE TAG" would be placed on these MURDERS.

    In an Interview John Leckey was asked.

    What part of your job gives you the most satisfaction?

    His answer was;
    Holding an inquest and getting positive feedback from a family that they regard the investigation as having been thorough. Providing answers to questions that have been troubling a bereaved family may assist the grieving process and help to bring some measure of closure.

    Well Mr Leckey, now you can give closure to these and other families who require legitimate answers as, (Not to how there loved ones died) they know this, But forensic evidence is required as to how many times were they shot, how close was the murdering soldier's who fired the fatal shots, Its common knowledge that they were all unarmed, but the soldiers were given a green card, "GO OUT AND DEFEAT THE IRA",shoot to kill policy, but Those innocent victims were not in the IRA and Mr Leckey knows this, He has taken an oath and should stick to it within the law and not listen to British Intelligence. Give these families what they are legally entitled to.

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  3. Brits wont spend another 'zillion quid' on an enquiry. McGuinness got his pay-off in Derry the show is over. There are people in Malaya still waiting an enquiry after sixty-four years. Maybe the relatives should compare notes?

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  4. In reply to larry hughes.... it is nice that you are being so dismissive of the families fight for justice i would like to say to you and everyone else who shares the same negative thoughts as you... that the families WILL NOT give up for the TRUTH and JUSTICE for ballymurphy massacre.

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  5. siobhan:

    We all seek Justice for everyone, Past and present, and I know the families will never give up, no one could at wanton murder by a British murdering gang of hooligans who seemed to think they were invincible because they were in the SO CALLED, elite Regiment, the major problem is getting past the MI5 security hurdle, they will be looking for all those soldiers who are alive and briefing them, they will probably state, "POST TRAUMATIC STRESS DISORDER" , Its not so long ago I was involved to stop Poll Brennan being returned to Ireland, It is common fact that the British were no longer seeking his return, But Low and Behold, Condoleezza Rice's last official act was to have him deported, she never ask if the British still wanted him. Don't think for one moment that we have all forgotten about what happened in Ballymurphy and all the other shoot to kills, I for one haven't. I wish you and all the families seeking the truth and get those murdering scum before the courts, if not, a firing squad.

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  6. Itsjustmacker,

    The campaigners for the Ballymurphy victims don’t need truth, they already know it. The people were gunned down in a state massacre. What they seem to want is an acknowledgement by the Brits or forced from them that it was such. I think where all this is leading as seems clear from the Bloody Sunday case is that the Brits through prosecutions will have a verdict of manslaughter delivered and then what we will have pronounced to the world is ‘Britain not guilty of murder’ – much the same as they played the torture issue back in 77 after the European Court found against them on ill treatment.

    As it stands people know Bloody Sunday was a massacre and that knowledge should not be squandered in the mire of prosecutions. A legal verdict should not be encouraged to emerge as a foil against the common sense verdict. I think the same applies in the Murph. This is the benefit of Saville. It established a template from which we can read off British state activity in Ireland. I would be loath to allow them to get off the hook in a court room which will restrict matters to individual actions of troops on the day and absolve the Brit state of any systemic responsibility.

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  7. Anthony:

    Have I not stated that in my post, about the truth?.

    I know it was a massacre, what I was stating, "They knew the truth, now they want justice", and the only way they and others will get justice is , (1) Postmortem's on those murdered.

    (2) For the British to admit this was blatant murder and they are the cause of all those murders by crown forces by giving them a free hand, ie , Safe from prosecution.

    " I would be loath to allow them to get off the hook in a court room which will restrict matters to individual actions of troops on the day and absolve the Brit state of any systemic responsibility."

    They have already done that by giving there own soldiers orders to go and defeat the PIRA by all means possible, "you will be immune to prosecution", so in those soldiers eyes, every catholic was in the PIRA and they could shoot whoever they wanted, now that they know everyone shot on that day in the murph was unarmed, they, "The British", don't have a leg to stand on as the FOI 30 year rule showed that secret document, which boiled down to, "Shoot to Kill", I have downloaded all those documents.

    May I take this opportunity to wish yourself, your Good Lady and children a Happy and prosperous new year, also all on the TPQ.

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  8. Itsjustmacker,

    Give these families what they are legally entitled to.

    The families are morally entitled to a verdict of murder against the British. Legally they are entitled to have the soldiers tried which also means those accused are entitled to a legal defence rather than an arbitrary verdict. The outcome of the trial would in my view be at best manslaughter – and the Brit establishment once again off the hook. Prosecutions in my view are obfuscating the past rather than clarifying it.

    I don’t think at this point we are going to get the British state to fess up to what you state is necessary for justice. I think we need some mechanism which creates a widespread view that they are guilty whether they fess up or not. I think this has already happened in the Bloody Sunday case. One problem facing any campaign for justice is that with the current SF leadership backing such campaigns the Brits are more able to deflect the criticism. If the current leaders move on SF will be in a better position to make the case and not be dismissed so easily.

    I think the more those campaigning for the Ballymurphy dead or the New Lodge Road Six dead maintain the public discourse the easier it will be to have the Brits viewed culpable. Ultimately I think the grubby facts that the Brits don’t want out there will be uncovered not by tribunals or courts but by historians, academics and investigative journalists doing the digging. Yes, their findings will be disputed but I doubt that will invalidate them. People sense instinctively that the Brits were up to their necks in nefarious activity. Their fingerprints are left at too many ‘crime scenes’ for any innocent explanation to be possible.

    Marty,

    Phil has done a great job in making the case against the most heinous state abuses. So when he mentions the abuses that we have carried out on our side he needs to be listened to every bit as much.

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  9. Anthony:

    There is nothing more in this whole world which would please me more to see British Soldiers/RUC/MI5 being charged with Murder.

    But, You , I , and , Others know this is not going to happen, everything has been covered up, "Lost Documents", failing to "interview witness's", we all know it was a straight "SHOOT TO KILL POLICY", everything is now being listed as, "Documents can not be shewn due to national security", which in our eyes means, "Do you think for one minute we would let republicans see documents which would incriminate our security forces", and, that's the bottom line in a nutshell.

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  10. Itsjustmacker,

    There is nothing more in this whole world which would please me more to see British Soldiers/RUC/MI5 being charged with Murder.

    But how could that be achieved without charging people from all past hues with murder?

    I think the time has long past for a new approach that is not based on giving the state the lead through prosecutions.

    Although as you say it is never going to happen.

    I think there is widespread acceptance that there was a shoot to kill policy. I would not like to se that rowed back through prosecutions that will lead to political verdicts

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  11. Anthony:

    "But how could that be achieved without charging people from all past hues with murder? ".

    have they ("The British") not already done that, and continue to do until this very day, Why should Republicans be charged with things which happened in pre GFA, which stipulated they could not be.
    I have already stated that those British State forces who are known to have committed Murder of innocent catholics will never face trial, nor , any public inquiry, They have immunity from their own govenment. Now, as you state if it came to fruit and they were arrested and charged does not mean Republicans would be arrested and charged as well, just look at how many loyalist British agents went to court and they all got off scot free, ask yourself this question, "Why doesn't the British Government Finally admit that all those who were murdered, were murdered unlawfully by British Security Forces" , They done it for Bloody Sunday, Partially for The Finucane family, and its not just The Ballymurphy and Newlodge Massacres there are many many more ,Loughall and Death on the Rock to mention a few The old way of MI5 thinking is, "Let them rant on, eventually they will die off", If we were to forget all those assassinations by the SAS, the manipulation of Bombs prior to planting for Premature detonation by agents handlers comes into the same category , "MURDER".
    I have just been looking at documents which I downloaded Re the Ludlow Murder, now you probably know about this because ED reported on it, and according to the Inquiry he gave information in his report which was deemed to be false (untrue), Yet all the false information put out by MI5 and the secret meetings of British Government Ministers is deemed to be the truth, but has been found out to be lies due to the 30 year rule and the FOI, Did you know that the GOC of NI ask that adams should be arrested, he was advised against this by the men in suits, now thats food for thought.
    But as I said, The arrest and prosecution of British secerity force who carried ALL MURDERS both here and abroad will never be charged or face a court of law.

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