The Government’s current approach to addressing LEGACY issues in Northern Ireland is “cavalier” – By Barra McGrory QC

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This Legacy Options Paper issued by a group of legacy experts made up of QUB academics, including Professor Kieran Mc Evoy and the CAJ is a welcome addition to this evolving debate. This will certainly help to bring a measure of clarity to the issue following the confusion caused by the vague and rather cryptic announcement by the Secretary of State on the nature of proposed legislation on this most sensitive and important matter.

As a former DPP who had to confront some difficult legacy prosecution decisions during my period of office between 2011 and the end of 2017, I particularly welcome the analysis and publication of figures, which clearly demonstrate the absence of any anti state bias in terms of prosecutorial decision making in these difficult cases. It is also encouraging to see some criticism of the constant use of the term ‘vexatious’ by HMG when referring to the complex issue of prosecutions of state actors arising from the Troubles. There is not a single example of a ‘vexatious’ prosecution of any individual that can be identified let alone one in relation to any present or former member of the security forces. The casual use of this term by those who should know better serves only to undermine public confidence in our criminal justice system at such a critical time in the development of sustainable legal solutions to our unique situation.

The paper summarises a submission I made to the NIO consultation on legacy (proposal 7), which challenges the application of orthodox thinking around concepts of justice when it comes to attempting to deal with a quarter of a century of violent conflict, which itself ended nearly a quarter of a century ago. It also includes a proposal (proposal 10) on similar lines to a private proposal I made to Hass/Sullivan some time ago, which allows for the reduction of jail time from a maximum of 2 years to Nil under the terms of the Northern Ireland Sentences Act 1998, in return for co-operation with an information retrieval body.

These proposals are capable of being misunderstood as a ‘get out of jail free’ card for all and any perpetrators of serious wrong during the Troubles, whether they be state or non- state actors. Such an interpretation would be a grave misreading of the proposals. Common to both is the concept of replacing the strict application of criminal justice processes with alternative solutions, to enable true accountability on the part of those who had responsibility for these events, at every level and from every quarter. I do so only because I have arrived, reluctantly, to the conclusion that our criminal justice system is neither designed for, nor is it capable of actually delivering meaningful information to the bereaved or indeed to society as to how and why people died. Human nature dictates that any process that accuses any individual of serious crime discourages the telling of the truth. While I am not naïve enough to think that an alternative process that removes the threat of punishment by any means guarantees full disclosure from those involved, there is at least a better prospect of encouraging frankness than the criminal justice process will ever achieve. This view also comes from someone who undertook the role of DPP shortly after the creation of the PPS, the purpose of which was to remove the issue of prosecutions from the political arena and to restore public confidence in the criminal justice system after the damage done by years of divisive conflict. While I am concerned that the SHA, in its current form, may not be the panacea to the many difficulties posed to the legal system by the legacy issue that many believe it is, the recent cavalier treatment by HMG of this most complex and sensitive area is deeply worrying.

This thoughtful analysis of Professor Mc Evoy and his colleagues of the range of available options deserves careful consideration.

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Barra McGrory

Barra McGrory QC is the former Director of Public Prosecutions in Northern Ireland

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