Carrie Twomey writes on the inadmissibility of the Boston College tapes
A point on yesterday's ruling, which some commentary is getting confused. The guarantee of confidentiality is what makes them unreliable, not the bias of the interviewer or interviewee.
The perception of bias was an argument put forth by the defense during the case to illustrate the unreliability of the contents of the tapes.
It is not, however, what undermines the tapes legally or fatally. The guarantee of confidentiality and the structure of the project is what killed the tapes legally.
The judge observed that the promise of withholding the tapes until death gave
"freedom to speak the truth but it also gave freedom to lie, to distort, to exaggerate, to blame and to mislead".
(Application to Exclude the Boston Tapes Evidence, paragraph 37)
"The prosecution simply cannot prove beyond a reasonable doubt that whether it is true or not the confession was not the consequence of the false guarantee"
(Application to Exclude the Boston Tapes Evidence, paragraph 25)
The false guarantee referred to is the promise of confidentiality until the death of the participant given in the donor agreement, which allowed the interviewee to speak freely.
"I find that the confession is likely to be unreliable in the sense that it may well be unreliable as a direct result of the circumstances in which it was improperly and dishonestly induced by Mr. McIntyre working under the auspices of the Project Director Mr. Moloney in conjunction with Boston College"
(Application to Exclude the Boston Tapes Evidence, paragraph 33)
The donor agreements for the loyalists were the same as the donor agreements for the republicans. All donor agreements had the same flaw: in contrast to Boston College's contract with Ed Moloney, which had the key phrase limiting the confidentiality of the archives 'to the extent of American law' in it, the donor agreements did not.
That is where phrase 'improperly and dishonestly induced' comes in, because the donor agreements stated the donor would have control until death and their interviews would be protected until death which as we all know now – but did not know then – was not true.
The lack of oversight of the project also contributed to the unreliability of the tapes as evidence.
All of this is important to clarify because it means the ruling applies to the Winston Rea case as well as Anthony’s own – it is not because of the interviewer, it is the conditions of the interview that renders them inadmissible as evidence.
A last point. Oral history is not evidence. Oral histories are not "confessions". Oral history is not "sworn testimony", and it is never meant to be.
The PSNI and the PPS have a lot of questions to answer about how they went on this wild goose chase, especially in regards to how much time, money, and resources they wasted in doing so.
Hopefully some journalists have already filed FOIs and/or asked their MPs to find out how much the PPS and PSNI have spent on the international subpoenas, how many detectives and police support staff have been tasked to the cases, and how many man-hours have been dedicated to everything Boston College related. This should be contrasted to the lack of resources the PSNI says it suffers from in its ability to handle legacy cases.
It is a travesty that it took this long – over 8 years – for the courts to confirm what has been obvious and known since the start.
As much as the Boston College tapes can be held up as an example of how not to conduct an oral history project, so too can the pursuit of the tapes by the PSNI and PPS be held up as an example of how not to police the past.