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.

How Not to Police The Past


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.

2 comments:

  1. As an American academic with experience in the North I'm waiting for someone to say what I consider the most important part of the BC tapes: they were a unique and critical window on the Troubles and the project would have been invaluable for generations to come. The judge in this case acts like he's the only one who understands that interviews are always positioned somewhere between the imperfections of lived memory and a set of historical and ideological contingencies. No one with a brain would simply take the tapes at face value but that doesn't mean that they're unreliable or lack historical value. They have a context which can be deciphered and accounted for. I had the honor of interviewing Brendan Hughes in 1998 right after the peace referendum passed. He struck me as a person of singular integrity who was such a seminal figure in the war in Belfast. His story needed to be told and except for the BC project it wouldn't have been told by him. Is every word "true?" I predict that as historians detail the events described by Hughes, his version will prove "truer" than theirs so if truly learning what happened say, on Bloody Friday, is your goal read the book.

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  2. I support Anthony without reservation. However, oral histories can contain confessions which can be used as evidence against the participant in a court of law notwithstanding the lack of intention for this to be the case. A confession doesn't need to be sworn to be used as evidence. I only point this out due to the paragraph "Oral history is not evidence. Oral histories are not "confessions". Oral history is not "sworn testimony", and it is never meant to be."

    No disrespect meant in the slightest and I fervently support the right to take part in oral history on the conflict as this is the most likely way to gain an understandimg of what happened and why. People can take what they can or want from it but understanding is empowerment.

    I agree that oral history is not meant to be sworn testimony but it can contain a confession which can be used as evidence. Whether that evidence alone is sufficient basis for a successful prosecution is another matter.

    The quotes above from the case even refers to "confession" albeit an unreliable one. With the current ardent pursual of paticipants in the conflict, at this stage oral history is inviting trouble. When the Boston Tapes were made there was a culture and assumption of no further Troubles related prosecutions. Now, it's arrest anyone who even thinks of an opening chapter title.

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