Belfast Telegraph

The nuts and bolts of a plan aimed at drawing a line under the Troubles: the views of Attorney General John Larkin on...

by liam clarke

...A truth commission modelled on South Africa

"South Africa has one narrative of what happened, but here there is no agreed narrative of the Troubles. I don't favour a lawyer-driven apparatus such as a truth and reconciliation commission. We are different from South Africa and I think those who have looked at that experience haven't found it a particularly happy one."

...Why we can't carry on prosecuting the Troubles

"Any criminal lawyer will tell you the prospects of a successful conviction grow less and less with each passing year. Yet if the Troubles had simply stopped without any overall deal, we wouldn't be having this conversation because the usual criminal justice structures would be gathering evidence in the usual way.

"That is not what happened. Instead we had the Belfast Agreement. We have already accepted that the pure criminal justice solution doesn't apply and that can be seen most starkly in three pieces of legislation which contain an arrangement not to use any evidence that is gathered in prosecutions.

"One is the limit on sentencing for Troubles-era offences to two years. The others are the special provision for decommissioning and the provision for recovery of victims' remains.

(When paramilitary weapons were decommissioned, forensic evidence gathered could not legally be used in prosecutions. The same applied when the IRA assisted the authorities to find the bodies of some of the Disappeared. If members of paramilitaries who are now on ceasefire are prosecuted for pre-1998 offences, the maximum sentence they can be given is two years, even for murder.)

...Whether or not he is advocating an amnesty for Troubles-era crimes

"Amnesty can be an emotionally loaded word and it is misleading to refer to my proposal as an amnesty. It is not an amnesty; it is a stay on prosecutions. One form of amnesty is the wiping out of any offence that may have been committed.

"In these proposals, the convictions of previous years stand. We are not saying as a community "these offences didn't happen"; we are simply saying they happened but we will not prosecute them. Even if you do use the term amnesty, there is absolutely nothing wrong with an amnesty in international law. The Strasbourg Court (the European Court of Human Rights) has accepted that on two occasions."

...The problem with inquests

"The present set of circumstances suffers from a certain imbalance because, at present, we have tools which are quite good in relation to the State, which is the occasional inquiry and inquests. Depending on the nature of the evidence an inquest is very good if you want to find out what happened, if you have been bereaved as a result of the actions of a State actor.

"On the other hand, if you have been bereaved as a result of the actions of a non-State actor, it is not particularly good because what you really want is not finding out what happened – you know in broad terms what happened, for instance "a member of organisation X killed my brother".

"What many people then want is that person arrested and prosecuted, preferably to conviction. That is not happening and the prospect of it happening grows less and less with each passing year. I think the time has come to take a balanced approach.

"On the one hand we need to bring to an end the prospect of inquests with respect to Troubles-related deaths. We need no more inquests and no more prosecutions with respect to Troubles-related deaths."

...The problem with continued prosecutions

"Victims who have suffered at the hands of non-State actors (paramilitary group) see the State, which has archives, being hauled over the coals. It is important, in my view, that the State is properly held to account, it is one of the proud boasts of the State that it has the resources to hold itself to account, and very properly so.

"Yet at the same time the State is responsible for a much, much smaller proportion of the deaths that took place during the Troubles. That means that the larger constituency of victims who sustained loss at the hand of non-State actors don't see any comparable tools available to them. They realise that prosecutions are not going to happen at all or, even if they do, their chances of success are limited and the outcome will be a sentence of at most two years.

"There is a law of diminishing returns. With each year the number of cases that can be pursued becomes less numerically significant as set against the large number of unsolved cases."

...How victims might gain if prosecutions were abandoned

"There should be a huge public facilitation of access to State records, above and beyond what is currently available under Freedom of Information legislation. The State should make its archived resources available with appropriate safeguards to members of the public who want to find out what happened to their relatives during the Troubles.

"I see it as "Freedom of Information plus". People who came with a particular standing in terms of being victims would be facilitated in terms of finding out everything the State held.

"Some information might be released on condition that there be no further dissemination. There could be a variety of measures that could be imposed to ensure the balance is struck between ensuring maximum access, while at the same time the person who committed the offence is not placed in peril because, like it or not, the State owes that person a duty too."

...Whether people should be able to sue the Government on the basis of information released to them under his proposals

"There is a statute of limitations on most civil actions of between three and six years. Right now there is no obstacle, save the limitation period. If we are trying to create a space where the issues of the past can be safely resolved then it seems to me that we would want to put a line under civil proceedings as well. Obviously, there will be issues about the human rights of individuals who may be placed in jeopardy by pell-mell disclosure of material."

...The role of historians, lawyers and journalists

"What I am saying is take the lawyers out of it. Lawyers are very good at solving practical problems in the here and now, but lawyers aren't good at historical research. Is it worth looking to the courts to solve historical controversies? The answer to that, by and large, has to be 'No'. The courts haven't shown themselves to be particularly good on historical issues.

"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."

...The implications for libel and defamation

"There is a good deal of discussion about libel law reform. It strikes me that if we want to get good history written there has to be an additional safeguard to protect good faith publication. If people make judgments about what happened in good faith, for instance if an historian conducting good archival research comes to the conclusion that X murdered three people and publishes it, there ought to be protection in the law of defamation for that.

"That protection might come with an obligation to print corrections and so forth depending on the nature of the medium. We really ought to ensure that if someone makes a good faith effort to get history right they don't face the huge wallop of a libel action. This could serve as a very useful small control experiment for larger libel law reform."

...Possible disputes about what could be released

"You could create a pared-down system for the resolution of disputes. If someone wanted information about a death, the State would disclose what it held but might seek to withhold some of the detailed information. Such a dispute could be very easily resolved by application to either a particular minister or a judicial figure."

...Whether the Troubles archives should be held in a special centre like Spanish Civil War archive in Salamanca

"The difficulty of moving everything and creating a purpose-built centre is that it is very expensive and it may be unnecessarily expensive. If you put in place an apparatus for reclaiming material and 20 people use it, you immediately see that the creation of some large Salamanca-type bunker has been quite unnecessary. The existence of what the HET archive has done already may facilitate the State's response to any requests for materials, but I don't think you could have a separate edifice."

...People admitting murders they committed during the Troubles

"To take it to its limits, if a person comes in and makes a clean breast of it, they can be prosecuted now, but if the legislation I am proposing was enacted, then that person wouldn't be prosecuted. I don't think that we should overestimate the likelihood of people coming forward. Even if the threat of prosecution was removed, I think it is unlikely that people generally will disclose deeds which would appear ignoble or shameful but, in their twilight years, some might write memoirs."

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