Smithwick tribunal findings could trigger a torrent of compensation claims against Irish state
The Smithwick Inquiry report may set a dangerous and costly precedent, writes Liam Clarke
No criminal actions are likely to flow from the Smithwick Tribunal; there was no "smoking gun", the judge found. But civil actions against the Irish – and perhaps the British – state are a strong possibility.
John McBurney, the solicitor who represented the family of Chief Superintendent Harry Breen, told me that he would be advising the murdered police officer's family of the potential to sue.
"It would be remiss of me not to advise them of the potential for civil action," he said. "Although it has not been on their minds up to this point, it is something that has to be addressed."
Mr McBurney won't be the only lawyer advising clients that they could sue a government after seeing tribunal findings, or Historical Enquiry Team (HET) reports, indicating collusion, negligence, or even failure to hold a proper investigation.
We are likely to see a tsunami of such actions in the next year or so, mostly for nationalist victims in the north, but also potentially from the families of murdered police officers, alleged informers and loyalists.
Without a new approach, that will be the next big thing in dealing with the past.
The drawback is that it is unlikely to put much information into the public domain, because such cases are generally settled out of court.
Victims who take this route will have the satisfaction of saying they received damages and feel vindicated, as I did when I sued over wrongful detention under the Official Secrets Act.
Recently, Anne Cadwallader, whose book, Lethal Allies, focused on security force collusion with loyalists, urged the authorities to admit they were at fault even on the balance of probabilities. That is, to a civil law standard.
The difference is that, to bring a criminal prosecution, you need proof beyond reasonable doubt.
To sue for damages, the bar is set lower.
Proof on a balance of probabilities is enough to secure a compensation award.
This gap was seized on by some victims of the Omagh bombing to sue men whom they suspected of the bombing, but who had not been convicted.
That case is being watched with interest, but the next round of actions is likely to be against the state and its agencies.
Suing is expensive and state agencies, like the police, or the Army, have the resources to cover your costs and pay damages if you are successful.
On the other hand, suspected terrorists are often "men of straw" in legal terms.
They are likely to get legal aid to defend themselves and leave a successful claimant with nothing to show but a legal bill.
Justice Peter Smithwick's findings are to the standard of proof that would be required in a civil action against the Garda, or the minister of justice.
However, he argues that, for his tribunal to accuse an individual of murder, the probability would have to be so high that it would come close to proof beyond reasonable doubt.
"Collusive acts are, by their very nature, surreptitious ... There is no record of a phone call, no traceable payment, no smoking gun," he explained.
He later added that this is why he did not accuse any named member of the Garda of collusion in the murders of Harry Breen and Superintendent Bob Buchanan.
The judge condemned Jeffrey Donaldson, the DUP MP, for pointing an accusing finger at retired Detective Sergeant Owen Corrigan in a speech at Westminster.
"Mr Donaldson acted, at best, irresponsibly and, at worst, disgracefully in naming Mr Corrigan under parliamentary privilege and thereby placing his life at risk," the judge wrote.
He later added that he was unwilling to make such a finding on the evidence before him: "A finding that Mr Corrigan had colluded with the IRA in the murder of the two RUC officers would result in him being viewed as a murderer by society. This would have an irreparable impact on him and his constitutional rights."
So Smithwick leaves it open to the families to sue the Garda – and perhaps also the Northern Ireland authorities – for failing to do enough to protect Mr Breen and Mr Buchanan.
The question is whether we want this to be the way we settle the Troubles – largely behind closed doors among lawyers, with only the state accountable.
Legal fees will drive the cost of such a process through the roof. As the implications sink in, there may be more appetite for ideas like those put forward by John Larkin, the Attorney General, who called for an end to legal actions and a focus on putting more information on the public record.
If so, we could focus more directly on helping victims, with payments to cover their practical needs. Both payments and the disclosure of information could be overseen by independent panels with an international element to allay fears of government cover-up, or favouritism.
This could be more cost-effective and more productive than a haphazard, lawyer-led process, but it would take new legislation.
That would take courage from our politicians, who would need to move beyond their initial knee-jerk reactions to new ideas.