Anthony McIntyre ✒ queries the usefulness of a prosecution strategy as a mechanism for truth retrieval.

Despite the fulminations in opposition to it, there is little new about the amnesty proposal from the British state about which, at one time, it found itself singing from the same hymn sheet as the government in Dublin.

Paragraph 20 from the Weston Park Talks documents states:

for offences committed before 10 April 1998… The Governments accept that it would be a natural development of the scheme for such prosecutions not to be pursued and will as soon as possible, and in any event before the end of the year, take such steps as are necessary in their jurisdictions to resolve this difficulty so that those concerned are no longer pursued.

It didn’t happen, and the flip has little to do with justice or ethics and everything to do with politics and expediency.

The term "amnesty" has now become the end of a dirty stick which has switched hands from Sinn Fein to the British government. The latter seems better positioned to grip it without being repelled by the pungent smell. That is down to it having the power to swat aside, like gadflies, its detractors in the North of whatever stripe, and equally the Dublin government which is all big hat and no cattle on the legacy issue.

During the North’s politically violent conflict the British gainsaid the prospect of an amnesty while republicans sought it. One of the key demands brought to the table at the 1972 London talks by Gerry Adams, Martin McGuinness and four other members the IRA leadership was an amnesty for all political prisoners.

With its prisoners out Sinn Fein has long since sold its horse and sees no point in buying a saddle. It no longer wants amnesty and the British do. Yet ultimately the shared objective of both is the same. Neither of them are remotely interested in having their own dirty shrouds hung out in full public view, after decades of denying that the fetid odour of decomposition was coming from their respective morgues.

The one truth that does not need recovery because it is staring us point blank in the face, sticking its tongue out, is that while the emphasis continues to remain on securing convictions through prosecutions there is almost zilch chance of success.
 
On reading, somewhere recently, the writer Daniel Finn arguing that the British are afraid of an independent Northern Irish judiciary, I doubted how compelling such a perspective is. Certainly not in relation to prosecutions where not one has yet proved successful. In fact the British have done quite well out of the prosecution game – their ability to protect their troops through it has been an unalloyed success for them and an unmitigated failure for the victims. The judges have only ever delivered in inquests, never in responding to a prosecution case with a guilty verdict against state forces. Despite the North’s Piffle Prosecution Service initiating court proceedings, its efforts have been abysmal. It is tempting to think they were designed to fail: not one squaddie or cop yet convicted of a legacy offence. And none likely to be no matter how long prosecutions continue.

Which invites the consideration, if not the full-blown conclusion, that if justice continues to be defined in terms of retribution, there will be very little: just grist to the mill of the politicians as they endlessly fight about justice denied while they operate a sordid unspoken pact that forestalls its emergence.

Since at least 2004 when I discussed the issue with Hugh Orde while he was chief constable of the PSNI, I have harboured serious reservations about the value of prosecutions in a post-conflict scenario.  There is nothing new here. To me, the flash point where prosecutions clash with truth recovery is the height to which the bar is raised in order to make a prosecution successful.  Guilt as truth must be established beyond a reasonable doubt threshold. Which means that so late in the day there are seriously few legacy convictions, a couple of loyalists and republicans and no state security personnel. What expansive truth has emerged from any of that?

A further limitation on prosecutions is that they bring a scenes of crime perspective to the investigation. This ends up even in the most optimistic scenario getting only those at the scene. It will never get those who created the scene.

If justice can be recalibrated and lowers its sights, moving to a justice based on revelation rather than retribution and rooted in a truth recovery process that is centred around culpability on the balance of probability rather than guilt beyond reasonable doubt, it is probable that a lot more truth may be forthcoming although no convictions. This is the trade-off. A truth retrieval process can bring forward information but not evidence. A prosecution can bring evidence which is more than likely going to be rejected and tainted as a result. At the heel of the hunt, truth is much too wide a target for a narrow prosecution strategy to hit. 

Given that truth through convictions arising from prosecutions are the pot of gold at the end of the rainbow, the trade off replacing retribution and revelation might be the best that can be achieved. In such a process there would be a role for the police given their powers of investigations as part of a much wider multi-agency strategy, but no role for the Public Prosecution Service.

Failing that, the relatives of those lost as a result of the conflict will be eternally punished via the dance of Tantalus – the successful prosecution is dangled in front of them but recedes to a point beyond their grasp when they strive to reach it. 

⏩ Follow on Twitter @AnthonyMcIntyre.

Tantalus & Amnesty

Anthony McIntyre ✒ queries the usefulness of a prosecution strategy as a mechanism for truth retrieval.

Despite the fulminations in opposition to it, there is little new about the amnesty proposal from the British state about which, at one time, it found itself singing from the same hymn sheet as the government in Dublin.

Paragraph 20 from the Weston Park Talks documents states:

for offences committed before 10 April 1998… The Governments accept that it would be a natural development of the scheme for such prosecutions not to be pursued and will as soon as possible, and in any event before the end of the year, take such steps as are necessary in their jurisdictions to resolve this difficulty so that those concerned are no longer pursued.

It didn’t happen, and the flip has little to do with justice or ethics and everything to do with politics and expediency.

The term "amnesty" has now become the end of a dirty stick which has switched hands from Sinn Fein to the British government. The latter seems better positioned to grip it without being repelled by the pungent smell. That is down to it having the power to swat aside, like gadflies, its detractors in the North of whatever stripe, and equally the Dublin government which is all big hat and no cattle on the legacy issue.

During the North’s politically violent conflict the British gainsaid the prospect of an amnesty while republicans sought it. One of the key demands brought to the table at the 1972 London talks by Gerry Adams, Martin McGuinness and four other members the IRA leadership was an amnesty for all political prisoners.

With its prisoners out Sinn Fein has long since sold its horse and sees no point in buying a saddle. It no longer wants amnesty and the British do. Yet ultimately the shared objective of both is the same. Neither of them are remotely interested in having their own dirty shrouds hung out in full public view, after decades of denying that the fetid odour of decomposition was coming from their respective morgues.

The one truth that does not need recovery because it is staring us point blank in the face, sticking its tongue out, is that while the emphasis continues to remain on securing convictions through prosecutions there is almost zilch chance of success.
 
On reading, somewhere recently, the writer Daniel Finn arguing that the British are afraid of an independent Northern Irish judiciary, I doubted how compelling such a perspective is. Certainly not in relation to prosecutions where not one has yet proved successful. In fact the British have done quite well out of the prosecution game – their ability to protect their troops through it has been an unalloyed success for them and an unmitigated failure for the victims. The judges have only ever delivered in inquests, never in responding to a prosecution case with a guilty verdict against state forces. Despite the North’s Piffle Prosecution Service initiating court proceedings, its efforts have been abysmal. It is tempting to think they were designed to fail: not one squaddie or cop yet convicted of a legacy offence. And none likely to be no matter how long prosecutions continue.

Which invites the consideration, if not the full-blown conclusion, that if justice continues to be defined in terms of retribution, there will be very little: just grist to the mill of the politicians as they endlessly fight about justice denied while they operate a sordid unspoken pact that forestalls its emergence.

Since at least 2004 when I discussed the issue with Hugh Orde while he was chief constable of the PSNI, I have harboured serious reservations about the value of prosecutions in a post-conflict scenario.  There is nothing new here. To me, the flash point where prosecutions clash with truth recovery is the height to which the bar is raised in order to make a prosecution successful.  Guilt as truth must be established beyond a reasonable doubt threshold. Which means that so late in the day there are seriously few legacy convictions, a couple of loyalists and republicans and no state security personnel. What expansive truth has emerged from any of that?

A further limitation on prosecutions is that they bring a scenes of crime perspective to the investigation. This ends up even in the most optimistic scenario getting only those at the scene. It will never get those who created the scene.

If justice can be recalibrated and lowers its sights, moving to a justice based on revelation rather than retribution and rooted in a truth recovery process that is centred around culpability on the balance of probability rather than guilt beyond reasonable doubt, it is probable that a lot more truth may be forthcoming although no convictions. This is the trade-off. A truth retrieval process can bring forward information but not evidence. A prosecution can bring evidence which is more than likely going to be rejected and tainted as a result. At the heel of the hunt, truth is much too wide a target for a narrow prosecution strategy to hit. 

Given that truth through convictions arising from prosecutions are the pot of gold at the end of the rainbow, the trade off replacing retribution and revelation might be the best that can be achieved. In such a process there would be a role for the police given their powers of investigations as part of a much wider multi-agency strategy, but no role for the Public Prosecution Service.

Failing that, the relatives of those lost as a result of the conflict will be eternally punished via the dance of Tantalus – the successful prosecution is dangled in front of them but recedes to a point beyond their grasp when they strive to reach it. 

⏩ Follow on Twitter @AnthonyMcIntyre.

6 comments:

  1. Replies
    1. thanks Ian - just a few thoughts I had acquired over the years

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  2. Surprised you didn't point out the obvious strategy of waiting until all concerned parties were dead before any fingers were pointed to be honest.

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    Replies
    1. how obvious a strategy is that? I think the more obvious one is the damage to the reputation of the institution - particularly on the state side - reputation always being an asset in international relations.

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  3. AM

    Excellent analysis. Like you, I have come round to the view that prosecutions would serve little purpose. Better that those with most to lose reputationally i.e. IRA Army Council and British security agencies are tried before the bar of world opinion through a Truth and Justice Commission. Not sure how it would work though.

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    Replies
    1. Thanks Barry - I think it would have to be multi-agency and multi layered. Prosecutions do not deliver. That much is clear. Too many people benefit from pressing for prosecutions as they achieve so little. A different strategy is needed plus a different standard of evidence. Carry on as it is and there will be as much truth in twenty years as there is now.

      Delete