In my previous article I suggested that the proposals for dealing with legacy should not go ahead in their current form because it is tendentious to offer victims ‘truth’ together with ‘justice’.
In my view they are not both attainable without corruption of proper legal process.
We should not contemplate this.
Thousands expected to take part in 'Derry Day' this weekend
Two new arrivals in DUP camp as UUP councillor Alan Lewis defects alongside serial party-switcher Henry Reilly
Brexit: There’s a fundamental con trick being played over Liz Truss’ Northern Ireland Protocol Bill says Lord Empey
BBC political editor Enda McClafferty sees the funny side after he’s caught on camera underdressed for live TV report
Rishi Sunak’s treasury ‘no friend of ours in fight against Protocol’: Paisley
I acknowledged, and repeat, that this may well be distressing for victims of terrorism and other crime who have waited for far too long for something to be done.
I do regret this. But the proposed short cuts in justice would cause too much damage to the fair administration of law in Northern Ireland and would perpetrate injustice on individuals.
In the previous article I explained how adherence to the rule of law does mean, regrettably, that many victims of terrorism and other crime will be deprived of the ‘truth’ in regarding the murder of their loved ones — because ‘justice’ should not be corrupted with a short cut around the courts to permit the identification by the Historical Investigations Unit (HIU) of perpetrators.
But there are further major problems in regard to the many and extensive powers to be conferred on the HIU in the draft legacy bill.
The HIU will be given power to investigate police officers for ‘misconduct’ in relation, for instance, to the police investigation of a death.
If the HIU makes a finding of such ‘misconduct’ it seems to me that such information, including identification of the officer concerned may be contained in the Family Report — because the ‘misconduct’ is, if anything, a ‘disciplinary’ or ‘accountability’ matter rather than a criminal charge.
It does seem inherently unfair that retired police officers could be so ‘named and shamed’ in the Family Reports for ‘disciplinary’ or ‘accountability’ reasons, while the perpetrators themselves have to shielded from identification because a criminal charge cannot be proven against them. But that seems to me to be the inevitable outcome of the legacy project as contained in the draft bill.
I repeat from the previous article that the great danger of the legacy project is that it sets a trap for victims of terrorism and other crime: that they accept the proposals in the belief that they will obtain ‘truth’, only to discover, later on, in the work of the HIU that, because of ‘justice’ HIU is not in a position to reveal names of perpetrators to them.
But the powers which the HIU may wield against the police are also very problematic and in disregard of essential principle.
If the HIU, after investigation, propose to deliver ‘significant criticism’ against the police in relation to the death, any police officer intended to be the target of such criticism (usually, no doubt, a retired RUC officer) must be given 30 days’ notice of the intention to include such criticism in the Family Report.
Then, before the HIU may proceed to issue its Family Report, it must ‘have regard’ to any representations made by such individual within the 30 day period.
But the draft bill avoids the imposition on the HIU of any requirement of disclosure of the ‘evidence’ against the officer and does not afford the officer any effective challenge rights against the ‘evidence’.
So there is a significant danger that the HIU will have pre-judged the matter with its preliminary conclusion of ‘significant criticism’.
By that stage, the HIU investigator could well be blinded by investigatory zeal and already subjected to ‘victim centred’ pressures to produce results, so that the prospects of a fair process for the retired RUC officer are in reality remote.
Now there is a well-established principle of disciplinary investigations — that the investigatory power does not stretch into retirement.
Possibly, however, any such principle should now be open to examination on the ground that the retirement exemption provides too easy an escape route from anyone under investigation — to evade justice with the simple expedient of retirement?
On the other hand, surely we should all be entitled to enjoy our retirements without the shadow of possible disciplinary or accountability investigation hanging for ever over us?
So there are important policy issues here that merit careful debate.
But if there were to be a change, it should in fairness apply to society across the board, rather than this target on retired RUC officers alone and in regard to their actions during all the years of the sectarian conflict?
There is another very important provision of constitutional justice to protect the citizen against the imposition of retrospective justice.
So, if it should be duly established, after proper policy debate, that the retirement exemption should no longer apply, or be in some measure limited, then in my view any such ‘reform’ must be prospective — that the retirement exemption should no longer apply to any misconduct committed on or after the new reform legislation’s operative date.
So I repeat my conclusion from the previous article: that the draft Bill is seriously flawed against justice. The debate should then focus on the question can the proposals be mended or should the project be ended?
• Neil Faris is a solicitor in Belfast
His first essay is here (click on this link)
MORE ON LEGACY SCANDAL SERIES BELOW: