Euro Rights Blog by Cliff Gow: AG Larkin’s proposed end to prosecutions related to the Northern Irish Troubles & human rights

In this guest blog Clifford Gow discusses the proposal of the Northern Irish Attorney General, John Larkin QC, to end prosecutions for crimes related to the Troubles. Clifford enjoyed a twenty year career in policing and broadcasting before studying law at the University of the West of England.  He is currently researching a number of issues in human rights and asylum law.

 

There is a folk song, well known by people from Belfast, which ends with the lines:

To hell with the future, we’ll live in the past,

May the Lord in His mercy be kind to Belfast.

It is a satirical reference to the tendency of many Northern Irish people to look backwards and dwell on past injustices, real or perceived, as opposed to looking forward.

Last week the Attorney General for Northern Ireland, John Larkin QC, attempted to alter that mind-set. In a television interview he suggested that in relation to ‘conflict’ related killings in Northern Ireland carried out before 10 April 1998 there should be no further prosecutions, no further inquests and no further inquiries. A line should be drawn, in terms of the criminal law at least, under the past. It was time to move on.

Mr Larkin’s cut-off date was the day on which the Belfast (Good Friday) Agreement had been signed between political representatives in Northern Ireland and the UK and Irish Governments. The Agreement effectively brought to an end thirty years of sectarian conflict which had cost the lives of over 3,000 people, with thousands more maimed and injured. Yet while the Agreement dealt with and resolved many issues affecting Northern Ireland it failed to put in place any mechanism for effectively dealing with the past. There would be no peace and reconciliation commission.

During the past 15 years Northern Ireland has moved from a society in conflict to a society emerging from conflict. Old sectarian divisions continue to raise their head, however, in the form of protests and rioting surrounding parades and the flying of flags. On one hand they could simply be seen as a dying relic of a divided past, a final attempt to claim territory or assert the identity of one community over another. At a deeper level, though, they can be viewed as a symptom of a failure to deal adequately with recent history, a failure to address perceived or real injustices.  In an attempt to resolve this issue former Bush administration envoy Richard Haass was parachuted back into the province this summer to chair all-party talks on the issues of flags, parades and how to deal with the past.

This was the arena John Larkin entered last Wednesday. Later that day, speaking on the BBC Newsnight programme, John Finucane, son of murdered Belfast solicitor Pat Finucane, said that he was ‘surprised that the attorney general had sought fit to enter this debate so publicly without any prompting ….’. Two events which took place on Thursday and Friday of last week may, however, provide a clue as to what prompted Mr Larkin to make a suggestion which appears to fly in the face of 16 years of Strasbourg jurisprudence regarding Article 2 of the ECHR, the right to life.

The day after the attorney’s interview was released the BBC screened a Panorama special, “Britain’s Secret Terror Force”.  The following day Richard Haass chaired a session of all-party talks in Belfast.  Both events could have had an impact on the timing of Mr Larkin’s remarks, but for very different reasons.

Britain’s Secret Terror Force’ revealed the existence of an undercover unit of the British Army, known as the MRF, which operated in Belfast during the early 1970s. The BBC News website reported last Thursday morning that: ‘Soldiers from an undercover unit used by the British army in Northern Ireland killed unarmed civilians, former members have told BBC One’s Panorama.’ During the programme one former member said that they were not there to ‘act like an army unit, [they] were there to act like a terror group.’ The programme linked the shootings of at least 10 unarmed civilians to the MRF, which was disbanded in 1973 and its records destroyed.

One alleged victim of the MRF was Patrick McVeigh who was shot dead on 12 May 1972. Article 2 of the ECHR was in force in Northern Ireland at that time and Patrick McVeigh had a right, under it, for his life to be protected by law. If his death was the result of the use of lethal force by the State then the actions of the State agents responsible must be subject to a test of absolute necessity (McCann and Others v UK (Application No 18984/91)). The State is also under a positive obligation to have in place ‘effective criminal law provisions backed up by law enforcement machinery’ (Osman v UK (Application No 23452/94)), that includes an obligation to prosecute and hold to account individuals responsible (Oneryildez v Turkey (Application No 48939/99). Article 2 also implies a procedural obligation on the State to hold an independent and prompt inquiry into a death which may have occurred in breach of the Convention (Jordan v UK (Application No 24746/94)).

The Larkin proposal – no further prosecutions, no inquests and no inquiries – would breach all of those requirements and effectively say that Article 2 was not in force in Northern Ireland prior to April 1998. In one sense he may have a point. Strasbourg jurisprudence on the use of lethal force by the State, and the implied obligations, did not begin until 1995 with the McCann judgment. This raises the issue of the temporal scope of the Convention which was discussed in McCaughey and Quinn’s Application ([2011] UKSC 20). Baroness Hale’s comment is relevant ‘…the procedural requirement of article 2 does not require that old inquests be re-opened (unless there is important new material) or that inquiries be held into historic deaths.’ (para 93, emphasis added).

The Panorama programme contained new material important enough for the Ministry of Defence to pass it on to police for investigation. On that basis all of the requirements in Article 2 could now be said to have been ‘triggered’. When asked about the requirements of Article 2 Mr Larkin said he was sure that ‘[a] decision by the State at the highest level embedded in an Act of Parliament or the (NI) Assembly would find favour with Strasbourg.’  He did not elaborate on why he thought the ECtHR would be prepared to tear up its jurisprudence in relation to alleged State killings in Northern Ireland. Instead he took a transitional justice approach.

In doing so Larkin may have been attempting to fill a void identified by Professor Michael O’Flaherty in his final report as Chief Commissioner of the Northern Ireland Human Rights Commission. In it he said, ‘Northern Ireland has never benefitted from a coherent and integrated transitional justice framework. […] There is not a day that goes by without the unresolved senses of neglect and injustice triggering societal problems. The lack of a truth recovery process means that tribal myths will continue to trump actual memory.’ John Larkin suggests that ‘truth recovery’, cannot take place while the threat of prosecution hangs over those involved.

Was he ‘flying a kite’ for the Haass talks and placing on the table something which an independent chairman could not do himself?

His comments, however, prompted an immediate response from O’Flaherty who said: ‘Today’s intervention in the Northern Ireland peace process by John Larkin, as reported in the media, is deeply unhelpful.  By proposing that a line be drawn in the sand regarding pre-1998 atrocities he is defying everything that has been learned internationally on healing the wounds of conflict.’

O’Flaherty ended his response by saying that ‘… the debate needs to move past [Larkin’s] own comments and to how best to [sic] ensure truth, justice and healing for those whose lives were devastated by the Troubles.’

The Belfast Telegraph reported John Larkin: ‘What I am saying is take the lawyers out of it. I think lawyers are very good at solving practical problems in the here and now, but lawyers aren’t good at historical research … The people who should be getting history right are historians, so in terms of recent history, the people who are making the greatest contribution are often journalists.’

Perhaps Mr Larkin should look again at the latest contribution by journalists, ‘Britain’s Secret Terror Force’.  Does he really want to deny justice to the daughter of Patrick McVeigh?  Or does he want to head off the spectre of another costly police investigation and inquiry?  He might also want to consider how the Republic of Ireland, the United Kingdom, the Netherlands and Germany will view his proposal.  Paramilitary killings, relating to the Northern Ireland conflict, occurred there.  He might also want to keep an eye on the case of Keyu and others opening in the Court of Appeal today regarding historic killings by the British military.

Has John Larkin attempted to re-write the penultimate line of that old song to read?

To hell with the past, we’ll live in the future

‘Kite flying’ in the name of transitional justice may be a worthwhile thing to do.  Is it really the job of an attorney general though?