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Even the dogs in the street know the guilty are laughing at the law

Terror suspects are walking free because MI5's stock-in-trade is intelligence while courts want evidence

By Malachi O'Doherty

Published 18/08/2016

Detained: Intelligence is helping police round up terror suspects, securing convictions, however, is proving difficult
Detained: Intelligence is helping police round up terror suspects, securing convictions, however, is proving difficult

It's a fundamental legal principle that the defendant is innocent until proven guilty. It is not always a fact, however, and legal principles don't always accord with common knowledge, or common sense. Still, they have to be adhered to. For example, when Michael Stone attacked the Stormont building with a pistol in his hand, which television cameras witnessed being wrested from his hand by security guards, the principle seemed a bit frail. We had all seen that he wasn't innocent.

Still, after he was charged, the media's responsibility was to make no independent judgment of their own and to give the courts full jurisdiction over the matter.

Similarly, when Michael Adebolajo and Michael Adebowale murdered Lee Rigby in Woolwich and gave an impromptu Press conference to smartphones on the street, with blood-drenched hands, and everyone knew what they had done, the law still accorded them a defence and the right to be presumed innocent until a trial had fully explored the question.

Incidentally, I am more impressed by Michael Stone's defence than by the credibility of his assault on parliament to murder Gerry Adams and Martin McGuinness. He said his actions formed a work of art, what once might have been called a "happening". And he did, indeed, have a far greater chance of making a show of himself than reaching the debating chamber.

One of the key objectives of the courts in insisting on the principle of innocence before conviction is to preserve the primacy of their judgment.

There is no sense in asking a judge to make a determination on the guilt, or innocence, of a defendant if the right to make that judgment is freely farmed out, too, to every newspaper, commentator and pub wag.

And after the judgment is made, it is for the media to treat the finding as a fact: so-and-so really did kill so-and-so.

And another reason for that principle and the primacy of the courts in making judgments is the need to preserve the separation of powers.

We have decided that, in a democratic society, it cannot be the job of the police, or the Army, to determine who is innocent and who is guilty.

Relax that one and you'll have martial law. A policeman will be able to make the final ruling on guilt and sentence.

We agree that that is how things are done in dictatorships and totalitarian states and not here. And, no doubt, there are some in the Army who would trust themselves to carry out that role fairly and efficiently.

General Tuzo, the GOC in 1972, asked for the power to use bazookas in west Belfast and trusted himself to get a good result with them and make Northern Ireland a better, safer place. Thankfully for us all, it wasn't his call to make.

So, what are we to make of members of the security services telling the Belfast Telegraph's Deborah McAleese last week that judges are too liberally giving bail to "terror suspects".

The source said that people were getting bail in circumstances in which courts in the rest of the UK would not grant it.

"Where people facing such charges are released - even with conditions - there is a risk they will get involved in some level of activity. It does create pressures for the security services, whose work on other investigations doesn't just stop."

What this source wants is for suspects to be kept inside, before conviction, so that MI5 can be spared the legwork of following them around to make sure they are behaving themselves.

A better argument might have been made for more resources.

But MI5 doesn't treat you as innocent until proven guilty. It has the reports from informants, the recordings and the other data that establish sufficiently clearly for their purposes who the members of dissident groups are, who is on the army council of the Provisional IRA and the other IRAs, what is really going on within north Belfast loyalism and, fairly likely, who is carrying out the paramilitary shootings.

In their understanding, they "know" these things. And they have been known to share their insights with journalists and academics down the years. So we have known them, too. A GOC once listed for me and a few other journalists over lunch the names of the seven men on the IRA army council.

But what security people know is what is called intelligence and what the courts want is evidence.

For the decades of the Troubles we had policing and security which was more concerned with intelligence than evidence, which sought to manage the paramilitaries by infiltrating them and ... Well, the "and ..." is the hard part to define. Sometimes, it involved redirecting their energies, that is, collusion. Sometimes, it involved disrupting them. No one has told the story yet of what they were really up to most of the time.

But it is not surprising that an MI5 operative with intelligence on the behaviour of paramilitaries is frustrated by the decisions of a judge who is acting only on the basis of evidence. What he, or she, cannot be allowed to do is to apply moral pressure on the courts to change the balance more in favour of intelligence. That would amount to allowing the spooks to whisper into the ears of judges.

And, yet, we have, as so often, to defer to that higher authority in these matters - the dogs in the street.

People believe that the guilty are going free.

They do not trust the rulings of the courts. They hear on the morning news that someone has been arrested in connection with the latest outrage and in the evening they hear that he has been released.

They watch high-profile cases end in acquittals and they wish that there had been a conviction and that the defendant had gone down.

And all of this may reflect the proper conduct of the law and the due separation of powers and the recognition of the human rights of all, but ask the dogs in the street if paramilitaries are going free and they will howl with one accord that they are.

And the statements made by security sources to the Belfast Telegraph last week in the series of articles about MI5 may, worryingly, suggest that our intelligence agencies would just love to extend themselves beyond their brief, yet they echo with what the dogs and most others regard as simple common sense.

The challenge is to preserve democratic standards, human rights and the real justice and on top of that to catch bad people and put them away.

And too many of us think today that that job is not being done as well as it needs to be.

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