Imagine that members of Sinn Fein were made retrospectively liable for something that implies crime, without stating it explicitly.
Imagine the outrage if a form of wrongdoing was put in law, solely to investigate republicans.
Imagine that the investigating body defined what that type of wrongdoing meant, not the law.
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It does not rely on evidence of the standard that would be required for a prosecution in court.
The investigating body decides to the civil standard, balance of probabilities, not the criminal standard beyond all reasonable doubt.
And what if there is no accusation, no presumption of innocence, no burden of proof, no opportunity to be heard, no right to confront one’s accusers, to cross-examine witnesses?
All of this may appeal to some people hostile of Sinn Fein, but it patently flouts natural justice.
Yet, this and more, is what the local police family have suffered under legacy justice, including the form of wrongdoing known as ‘collusion’.
It is why retired officers recently took the Police Ombudsman to court over his report into the 1994 Loughinisland loyalist terrorist murders.
Some of my opening lines paraphrase key points of the ruling.
It is scathing. Mr Justice McCloskey found that the Ombudsman had left the accused police officers “utterly defenceless”. Albeit final judgement has yet to be delivered, the ruling stands as “advisory opinion”.
Do NIO legacy proposals out for consultation fix this by giving retired officers the same protection under the law as every other citizen?
We have been here before. Noble principles in the Belfast Agreement did not extend to the police family.
Neither do the principles of fairness and proportionate, which are in the legacy part of Stormont House Agreement (upon which the NIO proposals are based) apply to ex RUC.
In Easter 1998, a political expedient for all sides and London was to focus legacy justice on the state.
The big casualty was a courageous constabulary that, supported by soldiers, defeated the main aggressor — PIRA — and reactionary loyalists.
Resigning the RUC to history immunised terrorists against dogged detectives who did not need a political deal to tell them how to investigate murder.
Others: immunity from prosecution, such as alleged PIRA Hyde Park bomber John Downey; immunity for destroying murder weapons in decommissioning; immunity for locating the disappeared: and of course, early release of prisoners.
As government inoculated terrorists from criminal justice with one hand, it passed law to investigate police officers with the other.
The tone was set. Soldiers did not escape what most call a ‘witch hunt.’
They may brace themselves, because there are not enough brooms at Hogwarts for what is planned next.
Legacy draws moral equivalence between PIRA and security forces, and by default, loyalist terrorist organisations earn respectability, too.
The depth we have sunk is seen in defining victim. A terrorist equal to the innocent people they murdered is straight out of Sinn Fein’s Trojan horse handbook on rights and equality.
Another line trotted out from that handbook of late is the one that says: ‘20,000 republicans were convicted’.
I reckon 10,000 loyalists kept them company, like the Shankill Butchers.
Translated, this ‘20,000’ dogma means, to my mind: “The security forces were Khmer Rouge. Thousands needed prosecuted, and still do. They had loyalists kill for them. What we, the freedom fighters, did was honourable. We were unfairly criminalised. This is our time. Payback.”
The dogma has the security forces as the aggressor and responsible for all loyalist murders, and wants legacy justice to show this and downplay the 1,768 PIRA murders it views legitimate.
Not only is this morally warped. It is vulnerable to the facts.
Security policy was not perfect.
Some soldiers and police committed criminal acts, as distinct from immediate reaction to events in a high-risk environment, or honest mistake.
Malicious incidents were rare and police and soldiers did face courts.
I know a lot of families of victims do not see it that way. But, had it not been for the security forces, two sectarian extremes would have inflicted greater misery.
Terrorists committed 98% of all murders, PIRA the main culprit.
Young squaddies suffered terribly at the start of the Troubles. Then, the RUC took the brunt Cops were the softest security targets. Often attacks happened when off-duty (same for UDR soldiers). The family home a favourite.
Many people today who speak loudest of rights once woke up with murder in mind and balaclava in hand.
There were 15,000 terrorist bombings, nearly all by PIRA. Most police officers felt the cold breath of death at least once.
Thousands injured. Mortars. Grenades. Landmines. Tank-busting bullets. Tending wounded and dying.
PIRA faced nothing comparable.
A ‘volunteer’s’ survival chances were three times greater than a member of the security forces. In 1983 Interpol rated Northern Ireland the most dangerous place in the world to be a police officer. It should have added, and safest to be a terrorist.
Legacy justice turns perception of state brutality into reality.
There is a misleading, sweeping definition of collusion that retired officers complained of and Mr Justice McCloskey criticised.
Ex security forces also have to contend with law firms, theories of transitional justice and films …
The legacy landscape is powerful and wide ranging. And for the police family, punishing.
The NIO proposals have four bodies that fuse story telling with criminal justice in a confusing mess accommodated in a draft Bill.
My take is this:
Historical Investigations Unit: powerful Police Ombudsman-type setup sure to incite complaints against police and busiest in this area and almost impossible to challenge.
Independent Commission on Information Retrieval: truth recovery to be abused by former terrorists who will tell everything but the truth.
Oral History Archive: Black Taxi tour of Troubles by academics.
Implementation and Reconciliation Group: people from political backgrounds that praise murderers picking reports and patterns.
Expect narrative critical of security and no meaningful reconciliation.
Utterly ignored, the McCloskey ruling. RUC officers exposed to conspiracy nonsense set in law in ‘non-criminal police misconduct,’ ‘improper purpose’ and other creations so vague that the draft bill cannot define them.
Nothing is off limits. Dead officers. Prioritising checking police paperwork (ie was the investigation perfect?) over chasing bombers.
What does it say to relatives of murder victims denied a proper legacy investigation? Or survivors severely injured by terrorists because attempted murder cannot trigger an investigation but ‘non-criminal police misconduct’ can?
Here are some suggestions.
Redefine victim to exclude perpetrator of crime. Investigations, by a suitably resourced PSNI, focus proportionate to murders, ie 98% terrorist. Employ normal criminal justice procedures, fact-based evidence and definitions of crime fixed in law.
No extra police agency. No abstract terms like collusion. No equating brave soldiers and police officers who protected democracy to cowardly terrorists who attacked it.
Whilst I agree with the Secretary of State (letter to the Defence Committee, July 4) that legacy justice is “unfair and disproportionate on members of the armed forces and RUC” I strongly disagree with her belief that the proposals are the best way to address this.
They make it worse and will trash the RUC.
Government want your thoughts. Visit www.gov.uk ‘Addressing the legacy of Northern Ireland’s past’.
Closes Sep 10. Be outraged.
• Dr William Matchett was a Special Branch officer and is author of ‘Secret Victory: The Intelligence War’ that Beat the IRA and Adjunct Fellow at the Edward M Kennedy Institute for conflict prevention, Maynooth University, Ireland
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