Hearing On Northern Ireland Human Rights: Update On The Cory Collusion Inquiry Reports
United States House Of Representatives Committee On International Relations
Subcommittee on Africa, Global Human Rights and International Operations
- Statement of US Special Envoy to Northern Ireland, Mitchell Reiss
- Statement of Geraldine Finucane
- Statement of BIRW Director, Jane Winter
- Statement of Human Rights First Washington Director, Elisa Massimino
- Statement of CAJ Director Maggie Beirne
Northern Ireland Human Rights:
Update on the Cory Collusion Inquiry Reports
House International Relations Committee’s Subcommittee
on Africa, Global Human Rights and International Operations
The Honorable Mitchell B. Reiss,
Special Envoy of the President and the Secretary of State
for the Northern Ireland Peace Process
U.S. Department of State
March 16, 2005
Mr. Chairman, members of the Committee, I am pleased to appear before you today to discuss the case of Pat Finucane and continuing efforts to answer all of the questions surrounding his murder on February 12, 1989. As is common in countries emerging from periods of intense civil conflict, Northern Ireland is now grappling with the difficult issues of how to deal with its past in a manner that consolidates the gains that have been achieved during the peace process and contributes to a just future characterized by mutual respect. As I will discuss in detail, the U.S. Administration has long recognized the symbolic importance of the Finucane case and the importance of establishing a public inquiry to examine the allegations of collusion.
The question of how to deal with crimes committed during civil conflict is one of the most vexing problems facing societies in post-conflict periods. There is no standard method to deal with these matters. What is appropriate for South Africa differs from what should be used in the Balkans. In Northern Ireland over the past decade there have been numerous discussions about possible ways forward. Ideas discussed have included amnesties; the release of government information; the creation of an archive of victims’ stories; the establishment of a truth commission; and issuance of public apologies. It is for the people of Northern Ireland, particularly those who suffered losses during the Troubles, to design a process or a combination of processes that meets their needs.
In parallel with these discussions, the British government has initiated independent inquiries into a number of high-profile cases in which there are allegations of wrong-doing by state officials. Among these cases is the inquiry into the events of Bloody Sunday in 1972, which was established in 1998. In a separate initiative, last month Prime Minister Blair publicly apologized for the injustice caused to 11 individuals wrongfully imprisoned following the IRA bombings in Guilford in 1974.
In 2001, the British government also agreed to conduct an inquiry into the murder case of Pat Finucane provided that Judge Peter Cory concluded that such an inquiry was justified by well-grounded indications of collusion between the government and the perpetrators. (Judge Cory also considered five other cases involving allegations of collusion; three in Northern Ireland and two in the Republic of Ireland.) The Cory process was one of the outcomes of the Weston Park talks, which were a significant milestone in the peace process because they paved the way for the SDLP to give its support to the new policing structures.
Mr. Chairman, in your capacity as a member of this committee and as co-chairman of the Helsinki Commission, you have brought the Finucane case to the attention of the American people with a series of hearings and briefings over several years. Your hearing last year included testimony from Judge Cory, who discussed the material that he collected on this extremely complex case. His report detailed the activities of the British military and police intelligence agencies in Northern Ireland during the period of Finucane’s murder. It also discussed the possible links to the murder of Brian Nelson and William Stobie, both of whom worked as government agents within the Ulster Defense Association, the loyalist paramilitary organization that claimed responsibility for Finucane’s murder. Based on this material, Judge Cory concluded:
Some of the acts summarized [in this report] are, in and of themselves, capable of constituting acts of collusion. Further, the documents and statements I have referred to in this review have a cumulative effect. Considered together, they clearly indicated to me that there is strong evidence that collusive acts were committed by the Army (FRU), the RUC SB and the Security Service. I am satisfied that there is a need for a public inquiry.
The UK government accepted this recommendation in principle, but deferred establishing an inquiry due to concerns over compromising prosecutions in the case. The Finucane family expressed disappointment over this delay, arguing that a public inquiry should take precedence over prosecutions. In his report, Judge Cory recognized the tension between society’s obligation to bring those suspected to justice through the courts and the public’s interest in establishing an inquiry to examine allegations of collusion.
In September 2004, the suspected gun-man, Ken Barrett, confessed to the Finucane murder and is now serving a sentence of 22 years (although he may be eligible for early release under the terms of the Good Friday Agreement).
Following Barrett’s conviction, Secretary of State for Northern Ireland, Paul Murphy, announced that the British government would establish an inquiry into the death of Pat Finucane. He also announced, however, that the inquiry would be established on the basis of new legislation governing inquiries.
This new legislation, the Inquiries Act, is currently being considered by the UK Parliament. The Finucane family, as well as several human rights organizations, have raised concerns about provisions of the proposed Inquiries Act. There is concern that, as drafted, the Act could reduce the independence and transparency of an inquiry into the Finucane murder.
It is for the Parliament of the UK to debate and decide on matters related to this draft legislation. Whatever legislative instrument is used, my concern is that the inquiry have the necessary legal powers to establish the truth of what happened in the Finucane case and that the process have the confidence of the people of Northern Ireland. To gain that confidence, I believe the chairman of the inquiry will need to be a person of unimpeachable integrity and international standing. The chair and other members of the inquiry should be fully satisfied that the terms of reference will provide them with the authority necessary to establish the truth and to examine thoroughly the allegations of collusion highlighted by Judge Cory. Public confidence also requires as much transparency as possible, within the constraints of protecting lives and considerations of national security. Judge Cory’s report is eloquent on this point: “Without public scrutiny, doubts based solely on myth and suspicion will linger long, fester and spread their malignant infection through the Northern Ireland community.”
In my remaining time, Mr. Chairman, I would like to detail our government’s actions to support the goals articulated by Judge Cory. At the outset, I want state my belief that the British government officials with whom I have worked with on this issue, including Prime Minister Blair and Secretary Murphy, share the desire to establish this inquiry in a manner that achieves the goals of establishing the truth and securing public confidence. This is consistent with Prime Minister’s Blair’s unstinting support for achieving the goals of the Good Friday Agreement.
The American role in the peace process has been to support the efforts of the British and Irish governments. Our approach to Northern Ireland reflects core American values: the primacy of the rule of law, protection of human rights and safeguarding equality of treatment. Our advocacy for a Finucane inquiry is consistent with this vision. We believe that resolution of this case will advance the peace process in Northern Ireland.
Since my appointment as Special Envoy for the Northern Ireland Peace Process last January, I have traveled to the region four times, including to participate in the negotiations at Leeds Castle last September. During these visits, I have met with the Prime Minister Tony Blair, Secretary Murphy, and with Prime Minister Blair’s Chief of Staff, Jonathan Powell. I have also met regularly with senior officials of the Northern Ireland Office and with representatives of the British Embassy in Washington. In each of these meetings, without exception, I have raised the Finucane case and emphasized the importance of an inquiry that follows the principles articulated by Judge Cory.
I have also met with the Finucane family, both in Belfast and here in Washington and have been in contact with Mr. Peter Madden, the solicitor for the family and Pat Finucane’s former law partner. I have shared with the Taoiseach and senior members of the Irish government my discussions and actions regarding this case. My recent meetings have included detailed discussions on the draft Inquiries Act and its potential impact on this case. This dialogue is ongoing.
SUB-COMMITTEE ON AFRICA, GLOBAL HUMAN RIGHTS
AND INTERNATIONAL OPERATIONS
STATEMENT OF GERALDINE FINUCANE
WEDNESDAY 16th MARCH 2005
“Mr. Chairman, Members of the Committee, my fellow speakers, ladies and gentlemen:
My name is Geraldine Finucane. My husband was Patrick Finucane, the Belfast solicitor murdered by Loyalist paramilitaries in 1989. My family and I have campaigned since Pat’s murder for a fully independent, judicial public inquiry into his murder. We have done so because of the existence of compelling evidence that Pat’s murder was part of an approved policy of widespread collusion between the British State and loyalist paramilitaries that included state-sponsored assassination.
The campaign that I have conducted for the establishment of a public judicial inquiry into Pat’s murder has lasted for over 16 years. I have had only one objective from the outset: to discover and uncover the truth behind Pat’s murder.
From the very night Pat was shot dead by the UDA in February 1989, I knew that the authorities had been involved in some way but I didn’t know the details, who was involved or who had ordered the murder. I did know that Pat had been subjected to death threats for many months before he was murdered. These death threats came from the RUC. Less than 3 weeks before he was killed a Government Minister, Douglas Hogg MP, made a statement in the British Parliament that marked Pat and other solicitors for murder.
In the immediate aftermath of Pat’s death I started to ask questions about the circumstances surrounding his murder. I demanded to know what was being done about the threats made to his life by the RUC. I wanted to know why Douglas Hogg said what he did in Parliament. I wanted to know if there was any truth in the allegation that the RUC and the Army were colluding with Loyalists to kill people. I demanded to know if one of those people was Pat. I got no answers from anyone, not the RUC, not the Army, and certainly not the British Government.
I called for a public inquiry immediately to get to the truth. I was not the only one. Local political leaders and senior clergy called for an inquiry and demanded the resignation of Douglas Hogg. As time went on, international bodies such as the United Nations the European Parliament and Congress of the United States called for a public inquiry. Indeed, this is the third time I have testified here in Washington and other members of my family have testified here also. Pat’s friend and law partner, Peter Madden, has also testified here. Rosemary Nelson, another lawyer murdered by Loyalists, testified here.
After 16 years and much deliberate delay, the British Government eventually announced that an inquiry would be held. This is a result of the agreement made between the British and Irish governments at Weston Park in 2001. The British Government said it would comply with the terms agreed by the two governments at Weston Park. They agreed to appoint an international judge that would review Pat’s case and if evidence of collusion was found, a public inquiry would be recommended.
I was not involved in the Weston Park talks. I did not agree to the appointment of Judge Cory. This was not because I doubted his credibility or integrity but because I knew that I had enough information to warrant a public inquiry without the need for the appointment of the Judge. However, I had no choice bit to wait patiently for him to produce his report. The British Government agreed that they would implement Judge Cory’s recommendations.
Judge Cory did recommend an inquiry in Pat’s case. He said in his report that “…the documents and statements I have referred to in this review have a cumulative effect. Considered together, they clearly indicate to me that there is strong evidence that collusive acts were committed by the Army (FRU), the RUC SB and the Security Service. I am satisfied that there is a need for a public inquiry.”
When his report was published (after even more deliberate delay by the British Government), it was revealed that Judge Cory had stated that any appointed commission should have all powers normally associated with a commission of inquiry. The most important power is that a commission decides itself what matters should be considered and what should be made public.
The British Government has stated on many occasions since the publication of the Cory report that a new law is required to conduct the inquiry into Pat’s murder. The Secretary of State, Paul Murphy, said on 23rd September 2004:
“[T]he Government has taken into account the exceptional concern about this case. Against that background, the Government has concluded that steps should now be taken to enable the establishment of an inquiry into the death of Patrick Finucane… In order that the inquiry can take place speedily and effectively and in a way that takes into account the public interest, including the requirements of national security, it will be necessary to hold the inquiry on the basis of new legislation which will be introduced shortly.”
He later explained that this was necessary because, “…much of the material that would have to be examined in this inquiry is highly sensitive to national security issues. For example, many of the operational techniques that would be discussed in the inquiry would be used currently in the war against terror, for instance…”
These ‘operational techniques’ were described by the former Commissioner of the London Metropolitan Police, Sir John Stevens, in this way:
“My Enquiries have highlighted collusion, the willful failure to keep records, the absence of accountability, the withholding of intelligence and evidence, and the extreme of agents being involved in murder. These serious acts and omissions have meant that people have been killed or seriously injured.” (Emphasis added)
It is not difficult to understand why the British Government should wish to keep those sorts of operational techniques to itself! Even the limited amount of information that has come to light thus far in the case of my husband’s murder and other murders has been sufficient to raise widespread concern among the international community. But it is the repeated assertion of the British Government that the inquiry will be capable of getting to the truth by using this new legislation that is most perplexing. It is an assertion that does not stand up when scrutinized in detail.
If the Inquiries Bill becomes law in its current state it will prevent the tribunal of inquiry from acting independently. This new legislation forces any tribunal, no matter how independent, or credible, or reputable, to comply with decisions made by government ministers. The tribunal’s hands will be tied by “restriction orders” that can be served at any time during the inquiry. These orders, issued by a government minister – someone with the same status Douglas Hogg once had – will prevent material from being made public and order private hearings even if the tribunal itself doesn’t think that it is necessary to do so.
I am firmly against the holding of an inquiry into Pat’s murder under the Inquiries Bill. I have made it clear that I will not participate in an inquiry that is not what I have asked for: a public judicial inquiry composed of international judges like Peter Cory, who are fully independent of the British Government and seen to be so. I have made this clear repeatedly. I made it clear the very day the Inquiries Bill was published. It was not a position I took lightly or without due consideration but it was a decision I was able to make quickly because the Bill was such an obvious departure from what Judge Cory had recommended.
If the inquiry into Pat’s murder is held under this law, it will constitute a breach of the Weston Park Agreement. The Prime Minister of Ireland, An Taoiseach Bertie Ahern, has personally assured me that not only does he reject the Bill under the terms of the Weston Park agreement but that he and his Government will insist that the terms of that Agreement are complied with. He said there would be no compromise on this issue.
Judge Cory made it clear that he also does not consider the Inquires Bill to be compliant with what he recommended. On Sunday, 13th March 2005, he made his views on the Bill public: “There was only one standard for a public inquiry at the time of the Weston Park accord… If this Act had been in place at the time to set up an inquiry I don’t think that there is a judge who would take it on. Its provisions are too restrictive. Independence would be impossible.”
These views are shared by senior members of the British Judiciary, including Lord Saville, who chaired the bloody Sunday Inquiry. He has stated recently that he, “…would not be prepared to be a member of an inquiry if at my back was a minister with power to exclude the public or evidence from the hearings.”
Lord Saville, whose concerns are shared by Lord Woolf, the Lord Chief Justice, and other judges, recently told The Times newspaper, “I take the view that this provision makes a serious inroad into the independence of any inquiry. It is likely to damage or destroy public confidence in the inquiry and its findings, especially in any case where the conduct of the authorities may be in question.”
I do not believe there could be any stronger criticism of this proposed law than having the most senior judicial figures in Britain state that they would not participate in its operation.
In addition, what more blatant example could there be of the conduct of the authorities being in question than a case like that of Pat Finucane? Is there a more serious allegation that could be made against Britain than wilful collusion in the murder of its own citizen citizens? I believe the seriousness of the allegation and the weight of evidence supporting it is the real reason for the introduction of this new law; not to expose the truth, but to ensure that it is buried deeply and buried forever.
I have said for many years that the circumstances surrounding the murder of my husband are about much more than the killing of one man. They are a high profile example of what could have happened to anyone and what did happen to many that were not so fortunate. This new law is a worrying development for anyone, whether they are actively seeking the truth, as I am, or whether they simply believe that truth is important. This new legislation will apply to every inquiry in the future. It should be of concern to everyone because it will affect everyone. In this way, I think that one of the fundamental things about Pat’s murder is highlighted once again: the extent to which it affected us all and continues to affect us all.
Everyone in Ireland knows the victims of collusion. They were our husbands, our brothers and sisters, our friends and colleagues. I believe that because we were all so affected, we all have a stake in the outcome of this inquiry, just as we have a stake in the outcome of the peace process. If there were any doubt about this before now, the British Government has removed that doubt by trying to change the law of the land that governs everyone.
I will fight to resist this proposed law because I want to know the truth about the murder of my husband. I refuse to allow the British Government to take away that truth as easily as it took away Pat’s life.
Thank you very much.”
 Cory Collusion Inquiry Report: Patrick Finucane, para 1.293 (House of Commons, London) 1st April 2004
 Stevens Enquiry: Overview & Recommendations, 17 April 2003, para. 1.3
 “Attempt to limit Finucane inquiry criticised”, The Irish Times (Dublin) 14 March 2005
 “Closing Doors: Ministers need to show greater regard for due process” (The Times) London, 26 February 2005
Ms. Jane Winter
British Irish Rights Watch
British Irish rights watch is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland.
We welcome this opportunity to address this honourable Sub-Committee concerning the legislation that the United Kingdom government is introducing to replace public inquiries. We also thank Chariman Chris Smith for his continuing focus on the Cory process in Northern Ireland, which has significant repercussions not just for the Finucane family and the other families involved, but for many others who desire and deserve inquiries but never attain one.
The Inquiries Bill was introduced into Parliament on 25th November 2004, without prior consultation and before the publication of the report of the Public Affairs Select Committee on its investigation, “Government By Inquiry”. When that report was published, it was highly critical of the Bill. The parliamentary Joint Committee on Human Rights has also published a critical report. That Committee concludes that several provisions of the Inquiries Bill may not be compliant with Article 2 of the European Convention on Human Rights, which protects the right to life. In cases involving violations of the right to life, such as the Finucane case, the provisions of the Inquiries Bill could inhibit an effective investigation, which is required by Article 2..
The Inquiries Bill is being rushed through Parliament at a rate that does not reflect the magnitude of the changes it seeks to impose on the way that major matters of public importance are inquired into in the United Kingdom. If passed, responsibility for inquiries will pass from independent chairs – usually judges or independent experts – to government ministers. Those ministers will decide:
- whether there should be an inquiry;
- what its terms of reference should be;
- whether the inquiry will be held in public;
- whether evidence put before the inquiry will be made public; and
- whether the final inquiry report will be made public.
The Bill will repeal the 1921 Tribunals of Inquiry (Evidence) Act and there will no longer be any substantive role for Parliament to play in inquiries. It has the potential for undermining public confidence in the ability of the British government to investigate matters that engage the public interest or to put things right when they have gone badly wrong.
This Bill will effectively mean an end to public inquiries, called by Parliament, and reporting back to Parliament rather than to the Executive. When ministerial or departmental conduct is at issue, the government will be in a position to investigate itself – or not, as it chooses. The potential for cover-up is obvious. In cases where serious wrong-doing, such as collusion, is alleged, such a degree of ministerial control is highly undesirable and could undermine the fabric of democracy itself.
This Bill will affect all future inquiries. No-one wants or expects to find themselves involved in a public inquiry. Plane crashes, train crashes, a doctor working in the National Health Service who is a serial murderer, hospitals who removed children’s body parts for research purposes without seeking the parents’ permission, the collapse of a football stadium, child abuse – these are all personal tragedies which have been the subject of inquiries in the UK in recent years. Anybody could have the misfortune to find themselves caught up in such circumstances. When it happens, the most important thing is that the inquiry should get at the truth, and that there should be a public accounting so that a repetition can be avoided. If the inquiry that follows a tragedy is not full, fair, and independent – and seen to be so – then the pain is made worse and public confidence is lost.
It is no coincidence that the Bill is being hurried onto the statute books now. As Geraldine Finucane has explained, the government intends to use the Bill’s provisions to deprive her and her family of a proper public inquiry. It may help to bring the Bill into focus if I explain how it would affect an inquiry into Patrick Finucane’s murder, which involved collusion by the police, the army, and the intelligence service and was made possible by government policies which placed intelligence-gathering above its obligation to protect the right to life.
In the first place, once the Bill becomes law the Secretary of State for Northern Ireland will be the only person who can decide whether there should be an inquiry into the Finucane case at all. He could, if he chooses, simply refuse to hold an inquiry. We doubt that he will in fact do so, given the international pressure for an inquiry and given the clarity of Judge Cory’s recommendations.
On the assumption that there is an inquiry, the Secretary of State will decide its terms of reference. The only person he needs to consult about the terms of reference is the chair of the inquiry, whom he appoints. He need not consult the Finucane family, or Sir John Stevens, who conducted the police investigation, nor Judge Cory, who enquired into the case at the joint request of the British and Irish governments. The Finucane case involved many government agencies and policies. It is complex. While some of the events that led to the lawyer’s murder are specific to him, many of them have wide ramifications. Patrick Finucane was not the only person to die because of the actions of these agencies and the effects of government policies. We expect that, if an inquiry under the Inquiries Act is held into the Finucane case, the Secretary of State will draw the terms of reference as narrowly as possible, with the result that many salient facts will not come to light.
The Secretary of State will appoint the inquiry’s panel members. He must ensure that the panel has the necessary expertise, but persons with a direct interest in the matter under inquiry, or a close association with an interested party, can be appointed so long as doing so could not “reasonably be regarded as affecting the impartiality of the inquiry panel”. Once again, the Minister need not consult anyone about who to appoint to chair the inquiry, and need only consult the chair about the appointment of other panel members. We have no doubt whatsoever that only safe pairs of hands from the point of view of the government would be appointed to chair any Finucane inquiry.
The minister has other sweeping powers in relation to inquiries. He can alter the terms of reference, suspend the inquiry, or terminate it. The only person he is bound to consult before taking any of these actions is the chair, but the chair has no power to stop him.
One of the minister’s strongest powers is his ability to issue a restriction notice. Such a notice can determine whether all or part of the inquiry should be held in public. In theory, an inquiry could be held entirely behind closed doors. The Secretary of State has already said that much of any Finucane inquiry would have to be held in private. It is possible that the Finucane family themselves, and even their lawyers, would not be allowed to be present during some of the hearings. Nor will it be possible for independent human rights groups such as British Irish rights watch to send observers to place any inquiry under independent scrutiny.
A restriction notice can also determine whether evidence placed before an inquiry can be disclosed or published. We anticipate that many crucial documents relating to the Finucane case will not be made public on the grounds that they deal with sensitive intelligence matters.
Finally, the Secretary of State will decide how much, if any, of the inquiry’s final report will be make public.
Lord Saville, who chairs the Bloody Sunday Inquiry into events in January 1972 (when the army killed and wounded unarmed demonstrators against internment without trial in Derry in Northern Ireland) has publicly voiced his criticisms of the Inquiries Bill, and in particular of restriction notices. He has told the government, “As a judge, I must tell you that I would not be prepared to be appointed as a member of an inquiry that was subject to a provision of this kind.” He added that such ministerial interference with a judge’s ability to act impartially and independently of government would be unjustifiable. Lord Norton, who is Professor of Government at the University of Hull, said during parliamentary debate about the Bill, “Given the powers vested in a Minister, one has to wonder who would accept appointment to serve on an inquiry if independence were not guaranteed.” Given the very contentious nature of the Finucane case, it is difficult indeed to imagine who would chair such an inquiry with their hands so firmly tied behind their back.
The government will argue that, even though the Inquiries Bill gives the minister so much power to control and direct the inquiry, the Secretary of State will still be able to hold an inquiry that meets the criteria set out by Judge Cory. Those criteria were:
- that there must be an independent commissioner or panel of commissioners;
- the tribunal should have full power to subpoena witnesses and documents together with all the powers usually exercised by a commissioner in a public inquiry;
- the tribunal should select its own counsel who should have all the powers usually associated with counsel appointed to act for a commission or tribunal of public inquiry;
- the tribunal should also be empowered to engage investigators who might be police officers or retired police officers to carry out such investigative or other tasks as may be deemed essential to the work of the tribunal;
- the hearings, to the extent possible, should be held in public; and
- the findings and recommendations of the Commissioners should be in writing and made public.
Given the terms of the Inquiry Bill, many of these stipulations could not be guaranteed. It must not be forgotten that the government, its agencies and servants, all stand accused of collusion not only in Patrick Finucane’s murder but many other deaths. The government is not a disinterested party. Any inquiry which is designed and controlled by the Secretary of State for Northern Ireland, or any other government minister, is simply not acceptable, not only to the Finucane family, but to any objective observer.
Had it not been for the introduction of the Inquiries Bill, the government would have had no option but to hold the Finucane inquiry under the Tribunals of Inquiry (Evidence) Act 1921. That Act will be repealed when the Bill passes into law, but as I speak it remains in force. If the government had the political will to fulfil the commitment it gave in the Weston Park Agreement, it could announce an inquiry tomorrow and guarantee not to use the power contained in the Inquiries Bill to convert inquiries set up under other legislation into an inquiry as set out in the Bill.
Since it is unlikely that the government will do that, it is important that those who wish to see an independent inquiry into the Finucane case recognize that the government is not bound to use the Inquiries Bill. It can establish an extra-statutory inquiry on the basis that it is necessary to do so in order to fulfil the terms of the Weston Park Agreement, which is an inter-governmental agreement in some ways akin to an international treaty. The government would need to legislate to provide such an inquiry with the powers to subpoena witnesses and documents, but that could be simply achieved.
Patrick Finucane was a very able human rights lawyer who fought tenaciously for the rights of his clients. It is both ironic and distressing that in the attempt to deny a proper inquiry into his murder the government is depriving everyone who needs such an inquiry from access to justice.
The Inquiries Bill removes in one fell swoop the notion of independent scrutiny over the actions of government and government departments and agencies. Without the independent scrutiny provided by a public inquiry, accountability is also lost. Such developments can only erode public confidence in government and ultimately undermine democracy.
I thank this honourable Sub-Committee for its concern and ask you to do all in your power to impress upon the United Kingdom government the need to establish a fully independent and impartial inquiry into all the circumstances surrounding the murder of Patrick Finucane.
TESTIMONY OF ELISA MASSIMINO
HUMAN RIGHTS FIRST
HEARING ON NORTHERN IRELAND HUMAN RIGHTS:
UPDATE ON THE CORY COLLUSION INQUIRY REPORTS
UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON INTERNATIONAL RELATIONS
SUBCOMMITTEE ON AFRICA, GLOBAL HUMAN RIGHTS
AND INTERNATIONAL OPERATIONS
March 16, 2005
Chairman Smith and members of the Subcommittee, thank you for convening this hearing and for inviting me to share the views of Human Rights First on this important issue. I would like to say a particular word of thanks to you, Chairman Smith, for your unshakable resolve to keep human rights on the agenda of the United States Congress. We are deeply grateful for your principled and persistent leadership on this and so many other critical human rights issues. People around the world who struggle against oppression and injustice have found time and again that they can count on you as a tenacious ally in that fight. They turn to you because they know you share both their conviction that every human being has inherent value and inalienable rights, and their determination to persist until those rights are secured. We are all grateful to you and your incredibly hard-working staff for your unwavering commitment to human rights.
Human Rights First’s mission — to protect and promote human rights — is rooted in the premise that the world’s security and stability depend on respect for human dignity and the rule of law in every part of the world. Since our inception in 1978, we have worked both in the United States and abroad to support human rights activists who fight for basic freedoms and peaceful change at the local level; to protect refugees in flight from persecution and repression; to help build strong national and international systems of justice and accountability; and to make sure human rights laws and principles are respected and enforced.
For the last fifteen years, Human Rights First has worked to advance human rights in Northern Ireland. Since 1990, we have undertaken numerous missions and published a series of reports focused on the intimidation and murder of defense lawyers in Northern Ireland, with particular focus on the cases of solicitors Patrick Finucane and Rosemary Nelson. These courageous lawyers were killed for doing their jobs. There is substantial evidence of official collusion in their murders. Human Rights First believes strongly that peace and reconciliation in conflicted societies like Northern Ireland will come only once there is official recognition of and accounting for the wrongs of the past. Unless citizens from all sectors of society believe that their rights are respected, peace in Northern Ireland will never take strong root.
Background on the Cory Investigations
The cases that Judge Cory examined pursuant to the Weston Park Agreement and recommended for public inquiry are, each in their own way, emblematic of the breakdown in the relationship between the state and its citizens during a time of crisis. Exposing the truth about what happened in these cases is essential to building a foundation for the culture of respect for rights and transparency in government on which the future of Northern Ireland depends. Progress, however slow, is finally being made in some of these cases, and we appreciate the opportunity to brief the Committee on the status of that progress today.
In addition to the Finucane case, about which we have heard such eloquent testimony from Geraldine Finucane, five other cases involving allegations of collusion were investigated by Judge Peter Cory following agreement between the Irish and the British governments at Weston Park in 2001. In three of these cases – the murders of Robert Hamill, Billy Wright and Rosemary Nelson – there is evidence of collusion by British state agents in the killings. In the other two cases – the murders of Lord Justice and Lady Gibson, and of police officers Harry Breen and Bob Buchanan – collusion by the Irish police was alleged. The Weston Park Agreement referred to all of these cases as “a source of grave public concern.” The British and Irish Governments agreed that, “[i]n the event that a Public Inquiry is recommended in any case, the relevant Government will implement that recommendation.” The commitment made by the governments in the Weston Park Agreement could not have been more clear.
Judge Cory had completed his work by October 7th 2003 when he delivered two reports to the Irish government and four reports (including the Finucane report) to the UK government. On December 18th 2003, the Irish government published the two reports addressed to them. Judge Cory had recommended a Public Inquiry in the Buchanan and Breen case, and the Irish government announced that it would immediately establish such an inquiry.
The British government took a different approach. It held up publication of Judge Cory’s reports into the Hamill, Wright, Nelson and Finucane cases for many months. Finally, on January 12th 2004, frustrated with the UK government’s delay, which kept the families in suspense about his conclusions, Judge Cory took the unusual step of independently notifying the four families concerned that he had recommended Public Inquiries in all four cases. Judge Cory made his recommendations public as well. Still the UK government stalled. On April 1st 2004, the UK finally published Judge Cory’s reports and announced that it would hold Public Inquiries in three of the cases – all except that of Patrick Finucane. But it was not until November 16th 2004, thirteen months after Judge Cory first delivered his reports to the UK government, that the government announced the terms of reference for the Public Inquiries in the Hamill, Wright and Nelson cases, along with the names of the chairmen and other panel members who would hold the hearings. The Finucane family is still waiting.
The handling of this process by the UK government is discouraging, but not surprising. The long delays — between completion of the Cory reports and their publication, between the announcement that Public Inquiries would be held in three of the cases and any movement towards establishing those Inquiries — underscores the low priority the UK government placed on this effort, as well as its ongoing resistance to uncovering the truth in these cases. The strategy seems to have been one designed to alleviate pressure on the government in small increments, while holding progress to a snail’s pace.
Update on Progress Towards Public Inquiries in the Cory Cases
In addition to the Finucane case, the importance of the Hamill, Wright and Nelson cases in Northern Ireland cannot be overstated. Each of them is emblematic of much broader problems involving institutionalized sectarianism, lack of faith of all communities in the criminal justice system, and the vilification of defense lawyers. While some progress has been made in addressing these problems in Northern Ireland, a great deal of work remains to be done. The establishment of public inquiries into the Hamill, Wright and Nelson cases is therefore of great significance, and the effective functioning and conclusion of these inquiries could contribute greatly to consolidating the rule of law and entrenching a climate of respect for basic human rights.
Robert Hamill was a young Catholic man who was kicked to death by a loyalist mob in 1987 in the center of Portadown, despite the presence of armed police officers in a police Land Rover nearby. His attackers did not know him, but they could tell by the direction in which he was walking that he was a Catholic. There is little dispute that this was a purely sectarian murder. After the murder, the RUC (Royal Ulster Constabulary, the former name for the police in Northern Ireland) put out misleading press statements suggesting that Robert Hamill had been involved in a fight between opposing factions and that police officers had been injured in the fray. Following an investigation by the Police Ombudsman, former police officers and others were charged with perverting the course of justice by alerting suspects and telling them how to dispose of forensic evidence. Only one of Hamill’s assailants was ever convicted, and of only a minor offense in relation to the murder.
On November 16th, 2004, the Secretary of State for Northern Ireland announced the establishment of a Public Inquiry into the murder of Robert Hamill under section 44 of the Police (Northern Ireland) Act 1998. (This provision will be repealed by the new Inquiries Bill when it is enacted, but will remain the basis for the Robert Hamill inquiry even after the Inquiries Bill comes into force). The terms of reference of the inquiry are:
“To inquire into the death of Robert Hamill with a view to determining whether any wrongful act or omission by or within the Royal Ulster Constabulary facilitated his death or obstructed the investigation of it, or whether attempts were made to do so; whether any such act or omission was intentional or negligent; whether the investigation of his death was carried out with due diligence; and to make recommendations.”
A retired High Court Judge, Sir Edwin Jowitt, will chair the inquiry and will be assisted by Sir John Evans, a former police chief constable, and Reverend Baroness Kathleen Richardson of Calow, a former moderator of the Free Churches’ Council of England and Wales. Counsel to the inquiry has now been appointed, along with a solicitor, secretary and other staff. The inquiry has established offices in London and is in the process of setting up its website and determining the procedures that it will adopt.
While all of these developments are welcome, there remain some concerns about the terms of reference for the inquiry and the lack of consultation with the Hamill family prior to the finalization of those terms of reference. At a meeting in July 2004, senior Northern Ireland Office officials assured the Hamill family that they would have the opportunity to meet the chair of the inquiry and discuss the terms of reference before they were finalized. This meeting never took place. There is some suggestion that this failure to meet with the family may have been the result of a conclusion by officials in the Northern Ireland Office that family members were to be seen somehow as “parties” in the Inquiry and that it would be improper for the chair to meet privately with them in advance to discuss the terms of reference. There seemed to be no such compunction, however, about Inquiry officials interacting directly with the Northern Ireland Office, arguably more a “party” to the Inquiry into official collusion than the victim’s family.
Despite the fact that the inquiry is a direct result of Judge Cory’s Collusion Investigation, the terms of reference make no explicit mention of collusion. Judge Cory viewed his primary task as determining whether there was evidence of official collusion. In Robert Hamill’s case, he found such evidence. It is, therefore, crucial that the public inquiry has the remit to look into the question of collusion. Despite the failure to use the term “collusion,” there can be no doubt that the terms of reference are broad enough and should be construed to encompass what is, after all, at the heart of the inquiry: collusion.
Dissident loyalist leader Billy Wright was murdered in the Maze prison in 1997. He was a leader of the Loyalist Volunteer Force (LVF) and was regarded as an impediment to the peace process. While on his way to a prison visit, he was shot and killed by republican INLA prisoners whom the prison authorities had housed in the same wing of the prison. They were able to smuggle weapons into the jail, cut through a wire fence and climb on to the prison roof completely undetected. A prison officer was called away from a crucial watch tower just at the time of the murder, and there is evidence to suggest that the murderers had advance warning that Billy Wright was due to receive a visit that morning. The prison authorities received repeated warnings from prison staff and from intelligence officials that Billy Wright was a target for murder; they even knew the names of the murderers and the methods they would employ. But these officials did nothing to protect Billy Wright, a prisoner whose safety was in their charge.
The UK government announced on November 16, 2004 that it would hold a Public Inquiry into the murder of Billy Wright. This inquiry was established under section 7 of the Prison Act (Northern Ireland) 1953 (a provision that will be repealed by the Inquiries Bill when passed). Its terms of reference are: “To inquire into the death of Billy Wright with a view to determining whether any wrongful act or omission by or within the prison authorities or other state agencies facilitated his death, or whether attempts were made to do so; whether any such act or omission was intentional or negligent; and to make recommendations.”
The inquiry will be chaired by Lord MacLean, a recently retired senior Scottish judge. Other panel members will be Professor Andrew Coyle, director of the International Centre for Prisons Studies at King’s College, London, and the Right Reverend John Oliver, a retired English bishop. The inquiry is in the process of setting up its offices in Edinburgh and appointing the necessary staff.
As with the Hamill inquiry, the terms of reference for the Billy Wright inquiry are somewhat deficient and, despite government assurances to the victim’s father, David Wright, that he would have the opportunity to meet the inquiry chair and discuss the terms of reference before they were finalized, this meeting did not transpire. Like the Robert Hamill inquiry, the terms of reference for the Billy Wright inquiry make no explicit mention of collusion. Nor do they make any mention of the various investigations that took place after Wright’s death, including the police investigation, the inquest, and internal prison investigations. And, the terms of reference do not specifically permit an examination of the basis for Billy Wright’s arrest in the context of Northern Ireland’s Peace Process. As Judge Cory identified, there is a great deal of evidence to suggest that Billy Wright’s murder could have been prevented, which points to many acts of potential collusion before his death, as well as evidence to suggest an attempted cover-up after the murder. Failure to examine the events leading up to Billy Wright’s murder, as well as what transpired afterwards, will mean that only a partial truth will emerge.
Six years ago yesterday, Lurgan lawyer Rosemary Nelson was killed when a bomb set by the LVF exploded under her car. She was 40 years old, the mother of three young children. Six months before her death, she sat before you in this hearing room and recounted the harassment, intimidation and death threats she was receiving, including an assault on her by RUC police officers. Despite these threats, Rosemary Nelson continued to do her job as a lawyer, seeking justice for her clients, including the family of Robert Hamill, as best she could under increasingly difficult circumstances. As you know, Mr. Chairman, representatives of the United Nations, NGOs and Members of the United States Congress raised concerns with the UK government about her safety, but she was offered no protection. Six years after her death, despite a lengthy police investigation overseen by officers from outside Northern Ireland, no one has been charged with her murder. Some of those suspected of involvement in the crime were police agents, and one was a serving soldier.
Following the announcement of the terms of reference of the inquiry on November 16th 2004, and of the chair and other panel members, the inquiry established its office in London, appointed counsel, a solicitor, secretary and other staff, and now has its own website (www.rosemarynelsoninquiry.org). The inquiry is chaired by Sir Michael Morland, a retired member of the High Court of England and Wales. The other panel members are Sir Anthony Burden, a former Chief Constable of South Wales police and Dame Valerie Strachan, vice chair of a big lottery fund and former chairman of the Board of Customs and Excise.
The inquiry will hold an opening hearing on April 19th, at which the chair will introduce the panel and set out details about how he intends to conduct the inquiry. Following the opening hearing, the inquiry will begin gathering evidence for the full hearings, which are not expected to commence until early next year. These hearings will be public and are likely to take place in Belfast or Lurgan. Should the inquiry consider it necessary to hold some sessions in private or to protect the identities of some witnesses, it will disclose its reasons for such decisions.
The inquiry will accord the status of “full participant” to a small group of individuals and organizations, including Rosemary Nelson’s husband, her mother, the Police Service of Northern Ireland and the Northern Ireland office. These individuals and groups will be entitled to legal representation throughout the course of the inquiry, and their legal costs may be met from public funds. They will also be granted access to written copies of all witness statements given to the inquiry.
The Nelson inquiry is established under section 44 of the Police (Northern Ireland) Act 1998. Its terms of reference are: “To inquire into the death of Rosemary Nelson with a view to determining whether any wrongful act or omission by or within the Royal Ulster Constabulary or Northern Ireland Office facilitated her death or obstructed the investigation of it, or whether attempts were made to do so; whether any such act or omission was intentional or negligent; whether the investigation of her death was carried out with due diligence; and to make recommendations.”
Members of Rosemary Nelson’s family met in July 2004 with senior Northern Ireland Office officials who assured them that they would be given the opportunity to meet with Sir Morland before the terms of reference were finalized. As with the Hamill and Wright cases, however, this meeting never took place. The terms of reference for the Nelson inquiry are likewise deficient in that they make no explicit reference to collusion, nor do they reference the possible involvement of the army in the murder. While Judge Cory did not find evidence of collusion on the part of the army in this case, his investigation concentrated largely on the failure of the police and the Northern Ireland office to act on death threats against Rosemary Nelson before she was murdered, and did not examine the potential role of two serving soldiers in the murder. We urge the chair of the inquiry to interpret its terms of reference broadly enough to encompass these concerns.
After so many years of obstruction and delay, progress being made in all three of these inquiries is welcome. Human Rights First, British Irish Rights Watch, CAJ and other NGOs will continue to monitor their development closely. We encourage members of Congress to scrutinize these inquiries as they progress and to raise our concerns about the terms of reference with the British government. The UK Government has assured us that none of the three inquiries will be in any way governed by the new Inquiries Bill once it is passed into law. Given the significant deficiencies in this bill, holding the government to this commitment is critical.
Buchanan and Breen
Finally, a word about the Irish cases. Harry Breen and Bob Buchanan were RUC officers who were ambushed and shot by the IRA as they returned to Northern Ireland from a meeting in the Republic in 1989. Collusion by the Irish police in the killings was suspected, and evidence of such collusion was found by Judge Cory, who recommended to the Irish government that it establish a public inquiry to examine the case. The Irish government announced that it would hold an inquiry, but it was not until earlier this month that it announced that the chair of the Inquiry will be Justice Peter Smithwick, the President of the District Court. The inquiry will be held under the Irish Tribunal of Inquiries (Evidence) Acts 1921-2002, although its terms of reference have not yet been published. The Inquiry will be discussed in the Irish Parliament beginning next week, and the terms of reference are to be published at that time.
The Case of Patrick Finucane and the New UK Public Inquiries Bill
The hope engendered by signs of progress in these cases, unfortunately, is largely overshadowed by the UK Government’s ongoing failure to move ahead with a Public Inquiry into official collusion in the murder of Patrick Finucane. Worse even than inaction, the UK government is poised to foreclose the possibility of a credible inquiry in this case altogether. This would be devastating, not only for the Finucane family, but for the cause of peace and reconciliation in Northern Ireland for years to come.
Specifically, we are alarmed by the UK Government’s plans to conduct an inquiry in the Finucane case under new rules that seem designed to ensure that the truth remains hidden. Under the bill currently pending in the Parliament:
The power to commence and supervise an inquiry is taken away from Parliament and placed solely in the hands of a single Minister.
Only the Minister who initiates the inquiry can set the terms of reference and appoint a chairperson. This gives the Minister control over which facts and issues will be investigated. The appointed chairperson of the inquiry will have no power to change these terms of reference even if doing so is necessary to fully investigate the facts and produce a balanced report.
The Minister who initiates the inquiry can prevent public access to some or all of the hearings and can also decide to stop evidence and information, including the final report, from reaching the public.
The Minister can exercise this right to restrict public access to hearings and information when it is deemed that such restriction is “necessary in the public interest.” The public interest could include such elastic terms as “damage to the economic interests of the United Kingdom”, “damage to national security”, or “additional cost.”
The Minister can order an end to an inquiry without providing any reason for doing so.
An inquiry conducted under these rules could be neither public nor independent, and the amendments to existing law go far beyond any legitimate concern to protect classified information. Our concerns about these new rules, which will apply across the board to all future public inquiries, are magnified greatly in relation to the Finucane case. An inquiry into official collusion in Patrick Finucane’s murder conducted under these rules would have virtually no chance of uncovering the truth and, in our view, would not be worth doing.
The peace process in Northern Ireland is often beset with political crises which have tended to stall progress on important human rights reforms. This in turn has tended to undermine support for the peace agreement itself from those who are waiting to experience real change in their daily lives. We believe strongly that progress on human rights will sustain support for peace in Northern Ireland, even during periods of political turmoil. But invariably, during these times of turmoil, we hear the refrain from many in the political process that the time is not right to talk about human rights. We join you Chairman Smith, in rejecting this short-sighted approach. The United States has an important role to play in encouraging its close friend and ally, the United Kingdom, to live up to its commitments under the Weston Park Agreement and announce immediately that it will hold a public inquiry into government collusion in the murder of Patrick Finucane under the inquiry rules that were in existence when these commitments were made.
There are always those who argue that focusing on redress for past wrongs will simply reopen old wounds and mire society in the bitterness of a conflict that is now essentially over. But this view ignores the violence done to the fabric of society by leaving such wounds to fester. As so many societies transitioning from conflict to peace have learned, building a culture of human rights and accountability depends on having a credible process for addressing past violations. Public inquiries into government collusion in these emblematic cases are quite simply a pre-requisite to breaking the cycle of impunity that persists in Northern Ireland. Until the government demonstrates a commitment to uncovering and acknowledging the wrongs done in these cases, there will be a fundamental withholding of faith on the part of many in Northern Ireland that no amount of policing or criminal justice reforms will remedy. The time in which the UK government can finally demonstrate a commitment to transparency and accountability with respect to the murder of Patrick Finucane is running out. We thank you and your colleagues in the House for your efforts to convey this sense of urgency to Prime Minister Blair. We urge you to do all you can now to ensure that President Bush sends the same message.
Thank you for the opportunity to share our views with the Committee.
Testimony by the
Committee on the Administration of Justice (CAJ)
House Committee on International Relations
Sub-Committee on International Operations
and Human Rights
16 March 2005
Thank you for the invitation to testify today. The Committee on the Administration of Justice (CAJ) is an independent human rights organisation that draws its membership from across the different communities in Northern Ireland. CAJ works on behalf of people from all sections of the community and takes no position on the constitutional status of Northern Ireland. In 1998, CAJ was awarded the prestigious Council of Europe human rights prize by the member states of the Council of Europe in recognition of its efforts to place human rights at the heart of the peace process. One of the reasons for the success of our work on the peace process has been the continued involvement and interest of the United States. In this context we would particularly like to thank the honourable members of this Sub-Committee for this opportunity to raise these important issues and in particular the Chairman Chris Smith for his work in this area. Chairman Smith will of course know that I and other CAJ colleagues have testified before Congress before. On one occasion my colleague Paul Mageean sat here before you alongside Rosemary Nelson, an executive committee member of the organisation, and I could not let this occasion pass without noting that yesterday was the sixth anniversary of her murder.
My colleagues have spoken of a number of cases which are, or should be, the focus of public inquiries. However, bearing in mind that there are many cases in Northern Ireland deserving of a public inquiry where such an inquiry is unlikely to be established, I will focus on other mechanisms. One recent and very relevant development is the establishment of the Serious Crime Review Team.
CAJ has long been concerned with the issue of the state’s use of lethal force, issuing reports into specific incidents and campaigning for changes in policing and in the inquest system, and urging appropriate mechanisms for oversight and accountability. In this context, we successfully took a number of cases to the European Court of Human Rights. The Court found in our favour, concluding that the State had violated article 2 of the Convention (the right to life provisions) by not adequately investigating the incidents that led to the loss of life. Compensation and costs were ordered against the government. These cases (six in total) were concluded between 2001 and 2003 but as recently as last month (February 2005) the Committee of Ministers, which as the highest political organ of the 46-member Council of Europe, determined to keep an active watching brief on the cases. In an Interim Resolution (which CAJ would like, with permission of the Chair, to have read into the record), the Committee of Ministers explicitly stated that “there is a continuing obligation to conduct (article 2 compliant) investigations inasmuch as procedural violations were found”.
In seeking to answer the concerns of the Committee of Ministers, the UK government had relied heavily on the fact that it was establishing a Serious Crime Review Team to examine all historic cases. The argument was made that this Review Team would be given resources to ensure appropriate investigations or re-investigations of all unsolved cases, and that this would in large part respond to the requirement of the European Court, and the Committee of Ministers, in complying with the judgments handed down against the UK government.
CAJ and other human rights groups following this debate closely have a number of concerns that they would like to share at this stage. We would respectfully suggest that this Sub-Committee conveys its interest in this issue to the appropriate British and Irish authorities, as co-guarantors of the Agreement, asking to be kept informed of developments.
Firstly, by way of background, the Secretary of State for Northern Ireland, Paul Murphy, announced the creation of a new unit within the Police Service of Northern Ireland (PSNI) to review unresolved deaths and provide bereaved families with answers to questions they have about the loss of their loved ones. He said “We believe that Northern Ireland needs a tailored approach to deal with the pain, grief and anger associated with its past. Part of this approach is the need to address, in a systematic and comprehensive way, all of the unresolved deaths that took place during the Troubles”.
The statement goes on to explain that the Serious Crime Review will be “a new ring fenced unit created by the Chief Constable” and headed up by recently retired Metropolitan Commander, Dave Cox. Mr Cox will be assisted by a head of investigations, who has been seconded from the Metropolitan Police – Detective Superintendent Phil James. Both men previously worked on the Steven’s team inquiring into the murder of Pat Finucane.
The Northern Ireland Office press release goes on to explain that the Unit will be served by a mix of serving and retired police officers from the PSNI and British police forces; that a key part of the process will involve the disclosure of appropriate information to families of victims; that the PSNI will create a dedicated intelligence team working in the Review Unit and some mechanism to ensure an effective review process and public confidence. All complaints about actions by the PSNI (including seconded) officers attached to the Unit will be subject to investigation by the Police Ombudsman in the normal way, though this would not extend to agency staff as they will not be exercising police powers. Media reporting of the establishment of the new Unit suggest that government is financing this measure to the tune of £30m over a six year period.
Before elaborating some of the concerns or reservations that CAJ and others have with regard to the Serious Crime Review Team, let me start by welcoming the fact that government is trying to engage in some way with the legacy of the past. Human rights violations have fed and fuelled the conflict in Northern Ireland but – for all its powerful commitment to a more just and peaceful and human rights compliant society in the future – the 1998 Agreement said little about the past. There is, in the preamble, a passing reference to the fact that “the tragedies of the past have left a deep and profoundly regrettable legacy of suffering”.
The Agreement also addresses very positively the changes (political, institutional, legal, social, cultural and economic) that are needed. But it says little about how to address the past, and this is increasingly being recognised as inadequate.
The establishment of a Serious Crime Review Team is a small part of the overall jigsaw of responses that is needed if Northern Ireland is to successfully address its past and turn its legacy of pain into a positive agenda for “the way forward”.
But this is CAJ’s first reservation about the announcement of the Serious Crime Review Team. This initiative must not be seen as in any sense a comprehensive response to the legacy of the past. That would be quite unacceptable. Government does, in its press release, state that the Review is “part” of a response, and we would wholeheartedly endorse that. Unfortunately, major initiatives such as this, particularly involving a fairly high level of staffing and public resources, can consciously or unconsciously fill a void, and over time become seen as “the” answer. This would be entirely wrong for several reasons. Firstly, the UK government alone, as one of the parties in dispute, cannot be the sole provider of any vehicle for an assessment of the past, and any attempt for it to do so would undermine all hope of its success. Secondly, whilst it is true that Northern Ireland needs a “tailored” response to the legacy of the past, it is clear from all other societies in transition that an array of different measures and responses are needed, and no single initiative – however widely it is ‘owned’ – will prove sufficient.
A second reservation that we and other human rights groups share relates to terminology, since terminology can be extremely important in societies in conflict, and especially at times of transition. The NIO press release talks of the Review looking at “some 1800 murders”. The key word here is “murders”. Deaths at the hands of security forces are not considered “murders” in any official statistics. If taken at face value, this might suggest that the Review will not be looking at any of the deaths caused by army or police personnel. CAJ and others have received assurances from the Police Service of Northern Ireland that no such interpretation should be placed on this formulation, and that the Review will examine “1876 unsolved incidents of murder (some with multiple victims) and a further 400 deaths related to the security situation in Northern Ireland” (our emphasis).
While welcome that all unsolved cases, regardless of the perpetrator, will be examined, it is still problematic that a linguistic distinction is retained between “murders” and “deaths”. The Review is in the hands of the PSNI so it would be deeply unfortunate to use terminology which from the very outset implies an inherent bias towards the exoneration of alleged state abuses.
The problem, however, is clearly not one solely of terminology. As noted, the Review is a PSNI Review. This will create real and perceived problems of impartiality when the PSNI is responsible for investigating allegations that police or army officers were directly or indirectly involved in criminal acts. It is very welcome that the Northern Ireland Office talks of a “ring-fenced” Unit, and has introduced senior managerial and detective officers from outside of the jurisdiction to take the work forward. The issue of independence however is crucial to the success of this enterprise, and government should be asked to comment in more detail on how it intends to ensure an independent process.
If the process is to be independent and seen to be independent, human rights non-governmental groups will be asking questions such as – What are the lines of accountability and responsibility from the Unit to the Chief Constable? Are the lines of authority direct or are they mediated through PSNI officers who served previously in the Royal Ulster Constabulary who may be expected to retain some loyalty to that institution and to former colleagues? What proportion of officers are being recruited or seconded from outside the jurisdiction, and how broad is this pool of independent investigators? The NIO press release talks of PSNI and British officers, for example: why not draw also on police expertise from other European (including Irish) jurisdictions, and from other parts of the world? How public and transparent will the whole process be? How closely will the Policing Board be involved in civilian oversight of the process and the policy lessons that arise in the course of the Review? Will the Police Ombudsman have jurisdiction over retired PSNI officers who join the team? How will the Review Team handle particularly problematic but grouped cases – such as all those cases that were handled by the Royal Military Police in the early 70s, where no police investigation was undertaken.
An obvious way of ensuring greater public confidence in the independence of the process is to ensure that there are a series of safeguards built in. One of those safeguards would be the principle of transparency. Clearly, investigations into murders and collusion are going to uncover a great deal of sensitive information. Families have a right to know what happened to their loved ones, but the police have a duty to protect the safety of all; they cannot divulge information in a way that would put others at serious risk. So, a careful balance will have to be struck. However, it is vital that to the extent possible, the needs of victims and of the wider public are met and that they are kept apprised of the approach being taken, and of the progress in the Unit’s work.
It is particularly important that the public, and the specialised policing oversight bodies, are kept abreast of the learning that is arising from the re-examination of old cases. It is evident, even before the Unit formally starts work, that the investigative practices of the past are likely to be found seriously wanting – however, one of the key questions is whether all of the possible lessons have yet been learnt. It seems unlikely. The Cory report into the cases of Robert Hamill, Rosemary Nelson and Billy Wright – all of whom died in the period leading up to and after the peace agreement (1997-1999) – highlighted relatively recent ‘system’ failings. Those charged with ensuring policing and criminal justice change must examine whether the various reforms introduced in recent years have in fact been adequate to respond to those failings, or whether further change is needed. Again, this ‘learning from the past for the future’ underlines the importance of keeping the process as independent as possible from those individuals and institutions closely involved in past failings – it is unlikely that such people and bodies will think that they have much to learn.
Alongside the reporting process, there needs to be a system of evaluation. The NIO press release talks of “some mechanism to ensure an effective review process and public confidence”, but no details are given. Will there be a process of independent evaluation and validation of the work of the Review Team and the learning therefrom?
Of very great importance is the learning that should arise from the case review regarding the operation of other criminal justice agencies. It is likely, for example, that many cases will be found to have been investigated by the police to a certain point, but to have failed to convince the Director of Public Prosecutions (DPP) to pursue the case in court.
The Criminal Justice Review arising from the Agreement argued that in future there should be a presumption in favour of the DPP giving reasons for their decision not to prosecute cases. The failure to give reasons for their decisions in the past has led to a serious lack of confidence in the institution, and may well now mean that many individual case reviews will come to an inexplicable halt because of uncertainties at the stage of transfer from the police to the prosecution stage. But families will want to know why the DPP chose not to prosecute, or secure some reassurance as to the justification for that decision. Even if that cannot happen in all cases, those involved will want reassurance that past practices of the DPP in this regard have changed. Many of the most serious concerns around past investigations lie not with police investigation, or not alone with the police investigation, but with subsequent action or inaction by the DPP and/or the judiciary.
This Sub-Committee is aware of the criticisms of the human rights community of the Criminal Justice Review process, which was less independent, international and far-reaching in its work than the equivalent work carried out by the Patten Commission into policing. Despite these weaknesses, the final report provided an interesting blueprint for change but, as with policing, these proposals were not warmly embraced by those responsible for introducing the necessary legislative change. Two separate pieces of legislation were needed to give effect to the recommendations (the first being far from satisfactory), and CAJ and others are now monitoring those changes that are being put into effect. The Justice Oversight Commissioner in his most recent report urged, with regard to the new Prosecution Service that “as the new service unrolls it is to be expected that an increasing degree of openness and transparency in the service should become evident”. A measure of any such move to greater openness and transparency should be seen in the willingness of the Prosecution Service to respond positively to any lessons brought to its attention as a result of the work of the Serious Crime Review Team.
While the focus of the Review will be on ‘unsolved’ cases, and therefore any failings in the court system and by the judiciary are less likely to be apparent, there may nevertheless be some relevant experiences to be captured. The judiciary, like the other criminal justice agencies, and indeed even the police service, was not subjected to a major compositional change. Proposals from the Criminal Justice Review about monitoring the criminal justice workforce, and monitoring the impact of the criminal justice system on different individuals and groups in society, are amongst those that are being implemented quite slowly. Accordingly, it would be of great assistance to the agencies to learn as much as possible about the attitudes to and experiences of their work in the past, with a view to learning for the future.
The conclusion from the above is that the Serious Crime Review Team could provide some people with answers to important questions about the past. It will not be, and should not be, seen as a panacea or a comprehensive response to the past. Moreover, it will not even provide bereaved family members with answers to their questions if the Review does not command the necessary level of public confidence. That confidence can only be secured if the Review complies with basic human rights principles of accountability, transparency, respect for human dignity, impartiality and fairness for all involved. To avoid censure – again – at the level of the European Court of Human Rights, all investigations must ensure that they comply with the standards of independent investigation set out in the Court’s jurisprudence for the upholding of article 2 (right to life) compliant investigations.
Confidence will also only be secured if the whole process is not seen as police-driven. The Review is probably unique and is certainly going to raise enormous complexities; there needs to be broad consultation across society to develop an ownership of the process, and the victims need to be placed centre-stage in all deliberations..
This submission has focused on the Serious Crime Review. Needless to say, the human rights agenda for Northern Ireland is much broader than this Review alone. CAJ is actively campaigning for written constitutional guarantees for human rights in a Bill of Rights for Northern Ireland; we are working to turn the equality duty created by the Agreement into something meaningful that will challenge the deep rooted legacy of discrimination and inequalities in our society; and we are working to deliver criminal justice and policing systems that will deliver justice and fairness to all. At the very time when there are advances in some areas, the Policing Board is discussing introducing a new form of plastic bullet, and is holding its discussions on this contentious issue of public order and weaponry behind closed doors. As public institutions embrace the language and rhetoric of human rights, and indeed in some cases were created with the explicit purpose of upholding these principles, they occasion simultaneously fail to comply with the spirit of those principles.
The United Nations Secretary General Kofi Annan, visiting Northern Ireland in October 2004 noted that “nearly half of all peace processes collapse within 5 years. Others fall into a sort of limbo of no war, no peace. In the life of almost every peace process, there comes a time – usually three to seven years out – when disillusionment is high, when the wheels seem to be turning without any real forward movement. Fatally this often coincides with the waning of outside interest. Political engagement and financial support are reduced, just when the process needs a second wind….Hard won agreements on human rights and the reform of justice are often eroded once domestic and international attention diminishes”.
This statement rings true for Northern Ireland, particularly at this sensitive time in the political process. Let me thank you once again, Mr Chair and Committee members, for your continuing interest and commitment to human rights in Northern Ireland.
We need that interest and commitment more than ever.