Legacy Scandal: '˜I fear a trap is being set for victims of terror,' says lawyer

I fear that a trap is being set for victims.

They believe that by supporting the current proposals for dealing with the past they will at least achieve all available ‘truth and justice’.

But in most cases:

Terrorists and others who committed crime will be shielded from identification, save in the rare case where a prosecution can be successfully brought to establish guilt beyond reasonable doubt in court;

But findings of police misconduct can be made — ‘naming and shaming’ retired RUC officers for alleged ‘misconduct’ in the years of the sectarian conflict.

I explain this as follows:

An Historical Investigations Unit (HIU) will be set up with full police investigatory powers.

After re-investigation of (selected) cases the HIU will deliver to families a ‘family report’ concerning the death of their loved one.

A draft Bill to implement the legacy proposals has been published.

It is strangely silent about the contents of the family reports, but it leaves readers to believe that the reports will be ‘comprehensive’: that all available ‘truth and justice’ will be revealed.

But I believe that victims are being cruelly deceived.

The HIU cannot be in a position to deliver verdicts of guilt against terrorists and others who may have committed crime in all the years of the sectarian conflict.

This is because there is an essential principle in our justice system: innocence until proven guilty beyond reasonable doubt in an independent court.

The problem is that in few enough of the re-investigated cases prosecutions can be brought successfully to establish such guilt in court ‘beyond reasonable doubt’.

So inevitably, and hard as it is to accept, terrorists and others who have committed crime during the sectarian conflict will have to be shielded from identification in the HIU family reports.

It would I suggest be extremely dangerous to suggest that we should abandon this principle of justice in order to give some more satisfaction to victims.

That would be to concede too much power to the HIU.

It is the mark of a totalitarian society, willing to override the rule of law, to confer on officials, such as HIU investigators, the power to deliver ‘verdicts of guilt’.

I do hope that Northern Ireland does not go down such authoritarian road, to diminish the independent role of the courts in favour of a short cut to justice.

However, the HIU will also have a power in the family reports to make ‘misconduct’ findings in of misconduct against the police in respect of their original investigations, however long ago.

Any such ‘findings’ will, because they relate to alleged ‘misconduct’, rather than to crime, will not of course amount to a verdict of criminal guilt.

So there will be no impediment to the police concerned (usually retired RUC officers) being so named (and inevitably shamed) in the family reports.

I repeat that we must respect and preserve, in all aspects of the legacy project, the essential principle of innocence until proven guilty beyond reasonable doubt in an independent court.

But the very uncomfortable result is that terrorists and others who have committed crime have to be shielded from identification in the HIU’s family reports, while retired RUC officers can, be in most cases, be named and shamed in the very same reports for alleged ‘misconduct’.

The draft Bill also dangerously ignores or seeks to override other essential principles in the powers it proposes to confer on the HIU and I shall examine some of these in the next article by me, to be published tomorrow.

Overall, the key problem, I suggest, is the abandonment of principle in seeking to make justice ‘victim centred’.

It was stated in para 31 of the Stormont House Agreement in 2014 between the two governments and most of the political parties that:

‘Processes dealing with the past should be victim-centred’

Of course, it is right that the focus of the whole legacy project should be on the rights and needs of victims. But it is dangerous, I suggest, to translate this into putting victims into any position of apparent privilege in the administration of justice.

I immediately acknowledge here, as a practising lawyer, that victims have often received a raw deal in the administration of justice.

Some measure have more recently taken to address that and more, no doubt could and should be done.

But in the sense that the administration of justice should not be ‘police centred’ nor ‘prosecution centred’ (and certainly not ‘lawyer centred’!), so also it cannot be ‘victim- centred’ without damage — to the point of essential fairness — in the administration of justice.

So the danger is that the proposed bodies will, in pursuit of ‘victim-centred’, seek to propitiate victims to the detriment of justice towards those under investigation by the HIU.

Certainly, I have counted in the draft Bill 11 major specifically ‘victim-centred’ provisions against one only with any focus on those to be investigated – and that one, that as we shall see in the next article, is quite inadequate in its proposed protection.

By all means victims deserve respect and effective support.

It is also right that they should have a considerable degree of influence in any arrangements to deal with the past. But there is also a question for the victims themselves: do they endorse all the proposals of the draft Bill?

Are they seeking ‘truth and justice’ for themselves at the price of injustice towards those under investigation? Will any be willing to say ‘this goes too far’?

For these reasons I suggest that the legacy proposals should not go ahead in their current form. I believe 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.

My suggestions 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.

It is time to tackle this and start anew.

My next article will focus on some other serious justice ‘short cuts’: those targeted against the police, in particular.

• Neil Faris is a solicitor in Belfast. The second part of his article on the HIU will be published in Tuesday’s print edition and online later on Tuesday, in which he suggests that the legacy proposals are so unjust to ex police they should be scrapped

MORE ON LEGACY SCANDAL SERIES BELOW:

• Introduction story: Time to stop the terror legacy scandal

• Introductory editorial: Essays will examine a legacy bias that has become a scandal

• Col Collins: Security forces must be protected from witch-hunt to appease IRA

• William Matchett: Republican conspiracy nonsense has been indulged, the RUC trashed

• Dr McGrattan: We are on verge of fostering a pro terrorist view of the past

• Canon Ian Ellis: There is an immense difference between a bomber killed by his own bomb and his victim

• Arthur Aughey: It is remarkable there is no planned historical commission on the past

• Norman Baxter: There is a victim hierarchy with terror victims at the bottom

• Danny Kinahan: Most MPs are unaware how one-sided the approach to the past has become

• Ken Funston: Victims are alarmed at plans for past

• Austen Morgan: SF wants to push on from OTRs to wherever it can in its Brit bashing