Bob Mitchell makes a welcome return to the columns of thebrokenelbow.com with a sharp response to NI Secretary Theresa Villiers, who claimed in a speech yesterday, dedicated to the problem of dealing with the past, that there was a ‘pernicious’ narrative which blamed Britain for the Troubles:
Are some PSNI legacy investigations about to bear fruit?
In a speech at the Ulster University, Northern Ireland’s secretary of state said it was a misrepresentation to say that wrongdoing by the security forces during the troubles was ‘endemic’ and that ‘some people’ were pursuing a pernicious counter narrative of the past’.
Who said it was endemic?
What narrative of the past is being countered?
Could it be the bland elitist histories of the troubles produced by former army officers? Or is she referring to the ‘oral testimonies’ that relate the individual experiences of the common soldier?
The question of ‘what happened?’ has been fully recorded many times – from the excellent ‘Lost Lives’ that tries to account for the detail behind every single killing – to the meagre outline material in overviews of Op Banner produced by senior or elite soldiers. Personal accounts by more junior ranks are often more emotive, but rarely include insights into the context of their times.
Theresa Villiers acknowledges some members of the security forces behaviour “fell below the high standards required of them” and “where there is evidence of wrongdoing, it will be pursued”, but, she continues, “we need to be mindful of the context in which the security forces were operating.”
Where is the historical record of ‘context’ and on what evidence can it be based?
In part of her closing comments the Secretary of State introduced the now common conservative tactic of scaremongering: the government want to retain the power to prevent disclosure of some information on health and safety grounds to prevent action by ‘violent dissidents’ or ‘Islamist terrorists’. Islamist terrorists intervening on behalf of armed republicans? Now there is a new one!
The vast majority of controversial killings during the Troubles occurred in the early to mid 1970s – the government have had over 40 years to investigate whether there was evidence of wrongdoing and to ‘pursue’ the matter. Perhaps they do not read their own embargoed records.
Is it not therefore, legitimate, given the total lack of governmental progress, for others to enquire into controversial incidents that happened 41 years ago?
If, as she stated, there are a “large number of complex sensitive cases” that only concern a small minority of soldiers or policemen (given that the “vast majority carried out their duties with exemplary professionalism”), is it not the case that where research or journalistic enquiry focuses on this large number of complex cases, that they are also, by definition, not re-writing the limited narrative of the ‘vast majority’?Clearly, while some investigations do appear to be in progress (and who knows, might be getting somewhere) there is scope for the revelation of some ‘context’.
Watch this space.
The Broken Elbow 
Bob
You make good points… but, if Ms Villiers can attribute a large number of cases of misconduct to a small number of state forces does that not imply that investigations have been been completed and the culprits are known to her?
Bob Mitchell responds:
“I think you are absolutely correct. I believe that although a large number of cases are date- attributable to the period 1971-72, this was a time when the RUC could not, would not, did not investigate the killings directly, but allowed the Military Police to take the lead, particularly with regard to army involvement. Evidence of this is unwittingly provided in a report given by the RUC Chief Constable to the Northern Ireland Office at the end of August 1972. Graham Shillington illustrates the civil (non paramilitary) focus of the RUC when he reported that between 1 July and 29 August 1972 there had been 48 murders where “…political or sectarian motives might be involved.” The then Secretary of State responded by stating that in order to “…allay public fears” these murders should be selectively categorized as targeted, random sectarian or criminal gang related killings.(1) However, during the period covered by the report there were in fact 150 killings, mostly in Belfast during the relevant sixty day period of Shillington’s report. How community fears about the other 102 killings were to be allayed is not clear.
To me, this illustrates how, perhaps, the RUC went into a corporate huff following the prorogation of Stormont. Moreover, the abandonment of the principle of having the military act in support (as opposed to being in command) of the civil authority was one of the worst political mistakes of the period. Killing increased immensely after Direct Rule while successful investigation virtually collapsed.
In sum, I doubt whether Ms. Villiers has the slightest clue about why the controversial killings occurred, let alone about who was responsible. Indeed, by refusing to open up the files that can provide evidence, it is Ms. Villiers and her establishment colleagues who are ensuring the continued focus on these issues and in doing so they are prepared to sacrifice the reputation of the vast majority of those who did act professionally merely to protect the guilty and the reputation of a relatively small number of senior people who got it wrong.
(1) PRONI CAB-9-G-27-6-4, Conclusions of a Meeting at Stormont Castle held on Tuesday 29 August 1972.”
Chris, to add a little clarification to my response, it is not that Ms. Villiers knows who the culprits are, but she does know where the evidence is to be found. Nor is it necessary that her primary aim is to ‘protect the guilty’, but more to ‘protect the national interest’ which, after reviewing thousands of pages of declassified material, I am convinced concerns the ‘morale’ of the armed forces. It is of course, not a valid argument. I doubt the morale of the armed forces participating in NI in 1971-72 would have been affected by what the military did or didn’t do in 1926. It is therefore, more likely to concern the reputation of those of their commanders who are still alive and the reputation of the officer corps in general. I do not believe that this is a valid argument either. Not unless the establishment has such a low opinion of the rank and file of their own armed forces that they do not think they are capable of distinguishing right from wrong. On the contrary, if the powers that be would step up to the plate and reveal the evidence it holds, they might just remove the stigma that continues to cling to what was the longest deployment of the British army in its entire history.
Bob
Thank you for your response. The probable basis for Villiers definitive statement derives from the fact that evidence of misconduct is already in the public domain -so she can hardly deny any misconduct -thus the few bad apples. She simply parrots her predecessors as the only means of damage limitations she can. I one of the few cases the HET concluded on was a killing in Derry where the RUC had recommended that the Brit Soldier killers be prosecuted -the Prosecution Service did not prosecute but essentially the RUC got the blame. I am not trying to get the RUC off the hook for its abuses but how common place is it for the Police to be blamed where the real blame lay elsewhere? The RUC may have recommended prosecutions in other controversial cases.
To further emphasis my point: for many years I believed the RUC had withheld crucial evidence in my own case back in 1992. The RUC insisted that they had handed everything over for my Trial. For 18 years I always blamed the RUC for the missing evidence. In March 2010 I stole one of the Prosecutor’s files from the Courtroom and discovered the Prosecutor had the evidence in his files all along. The RUC were telling the truth -I had been too narrow minded or short sighted.
By withholding the files, you suggest, is merely perpetuating the continued focus on the files. Villiers readiness to sacrifice the reputation of upstanding members of the security forces by continuing to conceal the files might be strategically the best option and lesser evil; lest the focus shifts upward because the file contents lead up the chain of command.
Therefore, if the ‘powers that be’ ever did step up to the plate that might only remove the stigma from its Indians and not the Chiefs.
Chris
The ‘bad apple’ argument is a consistent ploy after there is no further concealment possible in the long grass due to the lack of funds or appetite for yet another inquiry. My gut feeling is that some of the pressure brought to bear through family actions and justice organizations have forced proper investigations to proceed in some cases and it is likely that there will be a least (or perhaps most) some findings of misconduct and I suspect that SSNI would have a heads up on such information. Whether there is sufficient evidence to pass the ‘evidential stage’ and the ‘public interest stage’ of the Crown Prosecution Full Code Test (both of which must be passed in order to mount a prosecution) is another matter.
It is the Crown Prosecution Service (CPS) which makes the decision on whether or not to bring a case to court not the RUC/PSNI. This decision revolves around whether the CPS considers there is sufficient evidence to provide a realistic prospect of conviction, but is also weighed against any potential defence against the charge. The issue of reliability and credibility of evidence is also considered together with whether the nature of the evidence allows it to be admitted as such in court. On the public interest side, the seriousness of the offence, the level of culpability of the suspect, the effect on the community, the appropriateness of prosecution and the extent to which sources require protection are all elements on which a recommended prosecution might fail. Nonetheless, I continue to have an instinct that something is going to give – albeit that it might fall short of expectations.
Failing to disclose the existence of evidence to the defence, though unlawful, is not all that uncommon. Proving it is the problem and of course, depending on the source of the information in the first place, it is difficult to know whom to trust or blame.
As for the ‘national interest’ ploy, used I have to add in more recent times by putting a spin on Health & Safety to continue to place files under embargo is, as you say, a strategic decision designed to protect establishment interests – nothing else in my opinion. I say this for several reasons.
First, the argument that to reveal these documents would provide insights into the methods used by covert security forces is absurd. There are many accounts in the public domain which illustrate quite clearly the techniques employed to turn activists into agents of the state as well as some recent material on the workings of undercover police (the techniques are the same regardless of which part of the UK is the focus).
Second, there is a large amount of official material already released that provides bone fide arguments that misconduct did occur with regard to some controversies. Whether this happened because the ‘official redactors’ were too young to have an understanding of what was or was not sensitive I have no idea.
Third, some very limited material that is a tiny part of much larger collections of highly relevant material contains information that illustrates the potential wealth of data that might bring some clarity if opened for access.
While I also continue to believe that the reputation of the ‘many’ is being sacrificed for the protection of the few I do not think it is a simple matter of Indians v Chiefs in the military – there was an extraordinary amount of ineptitude in the body politic (both UK and Stormont) in the first years of the Troubles and my own take is that political ignorance of and apathy towards NI in those crucial early years, resulted in consequential contexts that, even if unintended, facilitated circumstances within which misconduct was able to happen.
to add to ‘bad apples’ there was the ‘piggy in the middle’ argument which was, if i recall, a title of a book in the 1070’s about the military in NI – by an ITN corr……same intent, we did our best in desperate conditions, etc, etc……
Bob
Again thank you for your reply. I understand the test for prosecution as did both the RUC and HET in the example Derry case. The Prosecution did not follow its own rules -I am also aware that evidence has since came to light that the Army and Prosecution Service came to some sort of improper agreement back in the early 70s that Soldiers would not be prosecuted for their misconduct. In a lesser known case Donnelly v UK [1974] the ECtHR found that a culture of solidarity for abuse existed within the Security Forces in the early 1970s. So it is clear that focus on the foot soldiers is a distraction to deflect from who in authority authorised or tolerated what which Ms Villiers denies was ‘endemic’ abuse of power.
Yes withholding of evidence is common place in all international jurisdictions. The specific importance of freshly discovered evidence in the NI context burdens significant responsibility on the current legal system and the Judiciaries duty to uphold the administration of justice. If fresh evidence comes to light and the current Judiciary assist in continued attempts to bury or conceal that evidence then the current Judiciary risks making itself party to those same abuses of the past. The Judicial quietism of the past should not be an option for the Judiciary to perpetuate today.
The introduction of the Justice & Security Act 2013 has gone some way to consolidate and perfect the use of Closed Material Procedures (CMPs) throughout every conceivable area of civil law from Coronary, Marine, Commercial or any other form of court or tribunal. This law will probably prove to be the biggest obstacle for many to overcome because it allows a blanket redaction or withholding of all or any material the Security Service say is important to national security. In addition the opposing party is not permitted to be legally represented in such matters but instead a government appointed ‘Secrecy Advocate’ (SA). The governmental SA is not the excluded party’s lawyer and accordingly they do not take instructions from the excluded party but they are supposed to ‘represent’ the excluded party’s interests. The SA remit is contained in an instruction manual written by the government and itself subject to CMPs that its contents are never to be disclosed.
Although CMPs are supposed to only be applicable in cases involving national security they are seeping into the daily running of ‘normal’ litigation. For example the husband/partner of UK Supreme Court judge, Lady Hale, requested a copy of the London Fire Brigade’s report on a fire in a part of a building he owned & managed. Not unreasonably he wanted to ascertain the cause of the fire in his building. The Court upheld the Fire Dept decision not to disclose its report to him even though it was accepted that no issues of national security were involved. From this it is easy to realize how easy it can be to deny the average citizen access to relevant and available evidence in controversial cases against the state.
I would also agree with you with regard to the over-hyped concern placed on Intelligence trade craft and need for secrecy. A couple of years ago 2 Italian Law Professors concluded in their study of the Italian Security Services that they use such claims as a mechanism to allow the Security Service and State to act unlawfully or conceal other misconduct. Laura Donoghue, Professor of Law at Georgetown, wrote in her book how she had reviewed annual reports on the handling of complaints against the UK Intel services and could not help but observe that each annual report was comprised of ‘cut & paste’ from the previous years report. So improper methods and faulty or inaccurate Intel is excessively protected regardless of cost to public confidence.
And yes I agree with your, and Ed’s, reference to how the ‘bad apple’ narrative is used; and in turn dismissively interpreted by others who believe the state is dealing with troublesome or difficult people under difficult circumstances
I had a brief look at the Justice & Security Act 2013 and one of the things that stands out in s2(3)(a)(ii) is the specific reference to the ‘National Interest’ which, unsurprisingly, is omitted from s4 regarding ‘interpretations’. I take it that this usage is deliberately intended to thwart any attempt to pursue a matter of ‘public interest’ – not that the terms of reference of the ISC set out at s1, s2 and s3 allow any deviation from to me appears to be an utterly irrelevant bureaucratic white elephant that is so rigged as to be utterly useless – see Section on access by the ISC to information which can be denied if the Secretary of State says it is sensitive; or Protection of Witnesses – no information provided in ‘good faith’ may be used in a Civil action, Disciplinary or Criminal case.
The ‘creepage’ of the CMPs reminds me of the surveillance bill introduced around 2011 as ‘secondary legislation’ which effectively allowed every kind of public service to utilize covert human agents and cover surveillance. Brits could teach the Stasi a few tricks – or perhaps that is where they learned part of their tradecraft.
This legislation has about as much muscle as David Cameron’s imminent new deal from Brussels – I kind of hope he steps of the plane waving a bit of paper!
Bob
The legislation carries a lot of muscle in so far as once invoked the excluded party has basically no chance -take for instance the admissibility of witness evidence; an unknown witness can make an unknown statement about an unknown event involving unknown people at an unknown location –and without the need for that witness having to attend court in either open or closed session to be cross-examined about the validity of their claims. How does one begin to defend against that?
In addition the UK has held secret trials of at least 2 individuals, where the courtroom was closed, the identities of the accused are unknown and the charges laid against them are so secret that the media are barred from reporting it -it only came to light in so far as the Guardian Newspaper challenged the barring order against it reporting.
Or take the Martin Corey case -he was in Treacy J’s view being unlawfully detained where the secret evidence was so sensitive that even the Judge was not allowed to examine it – he described: “The open material in this case comprises a cacophony of allegations which may tend to overwhelm.” We can only presume the secret evidence was something more damning. Ultimately Corey was released and internally exiled to this day from going near the area of his home where he grew up all his life.
Or in criminal convictions the Government has been actively destroying all records, transcripts and books of evidence after 5 years. Obviously this is to prevent convictions being questioned years later. Only the court published judgments survive which are of little use other than if fine points of law arise.
The point here is that the emerging trend is that disclosure will become even more scarce or difficult to obtain to such extent that if material relating to the 1970s is not already available then the likelihood will be that it might never be. To date we have seen how long and how hard it has been for campaigners to get access to scraps from the archives. It is difficult to know what room campaigners have to maneuver but they probably need to change their approach sooner rather than later.
Yes Chris, you are completely correct regarding the lack of transparency and disclosure. I was referring to the first part of the Act insofar as the supposed oversight committee which as far as i can determine is as likely to be similarly impeded as the rest of us. It appears to lack any independent clout.
But yes, i think the hatches are already being battened down as some of the previously open files have been closed for a ‘review of access’. I wonder what happened to ‘open government’, ‘freedom of information’, ‘human rights’, ‘justice’, ‘integrity’, ‘honor, ‘accountability’ and plain decency. Only hope now lies with ECHR but that takes time and resources. Perhaps more rigorous research, cooperative information sharing and revision and collation are the order of the day. But i do share your concerns and it isn’t looking good
Bob
I will not go into detail here but the ECHR is of little or no value in these matters. Not withstanding that the Rules have been changed to make it harder for victims to apply to the European Court of Human Rights but the rule of thumb is that claims of national security can trump human rights and the ECtHR will leave the matter to the discretion of the domestic courts. In addition ECtHR decisions are not enforceable so the ECtHR will avoid making a decision where the national authority is likely to ignore it. In fact in recent years the UK has been threatening to pull out of the Convention completely so the ECtHR would not want to aggravate UK discontent. Which is why I think the stake-holders need to re-evaluate their approach sooner rather than later.
Bob Mitchell replies:
Chris, another informative post regarding the legal situation – clearly the lawyers are going to have their work cut out. I think this also reinforces the need for good investigative research to continue to uncover what actually happened in NI…..and why. Thanks for your replies and good luck with your own work.
Bob
I hope your article and our exchange draws constructive attention on the pertinent issues we have discussed.
best wishes
Christy