According to the Police Ombudsman Report into the Loughinisland atrocity it would seem that the day after it occurred, Special Branch were able to provide the names of those who were suspected of having carried it out.
They were subsequently arrested and questioned as well as the evidence available being forensically tested but unfortunately to date it has not been possible to bring prosecutions.
Loughinisland joins a long list of cases in which the security forces know from intelligence who may have carried out murders but do not have the evidence to the necessary standard of “beyond reasonable doubt” to bring successful prosecutions.
Intelligence-based arrests sustaining convictions were used in the 1980s in what became known as the ‘supergrass trials’.
However our democracy found the legality of such convictions and prosecutions questionable and eventually unsustainable. It would be useful to study in more detail the impact of those trials and their subsequent collapse.
Were lives saved at first and then lost due to their failure?
Even today the security services are often aware of those who are intent on carrying out murder but do not have the necessary evidence to put them behind bars even though it is quite possible that people will die as a consequence.
So what the security forces continue to do is to try, where possible, to frustrate the actions of dissidents and others and of course, if realistic, bring, through the PPS, evidence based prosecutions.
Their guiding ethos, as during the Troubles, is to save lives and preserve property where possible, but many judgement calls have to be made and undoubtedly in a number of occasions they will, as in the past, get it wrong, sometimes with tragic consequences.
However where police or other members acted outside the law then it is for them to justify their actions or face prosecution and imprisonment as some did during the Troubles.
Because the definition of collusion is now being interpreted so widely it is time we started to look what is “criminal collusion” on the part of the security services where they actively aided and assisted the terrorists in their intent to commit murder and other serious crimes and “collusion”, which may probably be better defined as coming under the broad umbrella of counter terrorism within the law.
It is for the Police Ombudsman’s office, not to give an opinion if there has been any evidence of “criminal collusion”, but to collate that evidence to enable disciplinary or criminal sanction to be brought against those involved.
A Police Ombudsman’s Report is only an interpretation of information. Is this the intention envisaged by Section 62 of the Police (Northern Ireland) Act 1998? Such serious allegations surely require to be put through the proper rigour of a judicial process.
Such controversy feeds into the current unsatisfactory position of how we are dealing with the past, which continues to cause undoubted stress to the families of the victims.
I remain of the view that since we were required by Irish nationalism to involve the perpetrators and in particular the IRA (the republican equivalent of the gunmen of Loughinisland), in any peace settlement then it always would compromise how we were going to deal with the past.
So it is time our politicians started to be more honest about that position, particularly with the ordinary victims, instead of continuing, too often, to use the past as a weapon.
I have no doubt that the one thing wider society can guarantee to the ordinary victims is that with proper commitment, what happened to them will never happen to future generations. This includes stating clearly that the use of violence on this island, as a means of pursuing a particular constitutional or political preference was wrong.
It is also about genuine reconciliation including integrating education, genuinely shared housing, resolving parading and symbolic disputes and also giving the victims the opportunity to tell their story of the impact that the violence had on them and then teaching our children of its consequences.
Surely that would be a more constructive way to spend our energy.
Finally it should always be borne in mind that we managed to avoid a civil war through the actions of the security services and those in the community who worked against the extremes.
The RUC charged some 8,000 loyalist paramilitaries with terrorist related crimes and solved around 50% of loyalist murders. Just over 1,000 members of the security services were murdered and some 750 of those remain unsolved.