2 November 2015 Edition
Inquests – Struggling to find the truth
‘Many of the killings being examined look into the role of the British Army, the SAS, and the RUC’ – Relatives for Justice
It is no surprise that the British Government and its state agencies have, according to Mark Thompson of Relatives for Justice, ‘log-jammed’ the system
IN MARCH 2001, the European Court of Human Rights (ECHR) ruled that (under Article 2 of the European Convention on Human Rights) the British Government breached the right to life of people killed by the state during the armed conflict in the North of Ireland due to its failure to carry out proper investigations into their deaths.
The court found that the investigative processes in place to examine killings involving the state, including collusion between state forces and death squads, were in breach of the legal obligation on the state to investigate such killings properly.
This ruling meant that inquests needed to change and that those within the British state security apparatus involved in “lethal force” cases would be compelled to appear and be questioned, and disclosure of information, intelligence and documents relating to killings would be made available.
The ruling meant that quite a number of inquests into controversial killings that had not yet been held would operate under these new rules. Until then, inquests could not deliver verdicts or attribute blame,or examine the nature and circumstances of killings beyond basic facts already widely known.
Families were also denied legal aid, relying on lawyers to represent them pro-bono.
The main practice was to delay inquests into controversial and disputed killings, possibly as long as a decade. Some of the most controversial are waiting over 20 years to be completed.
The landmark decision was therefore hailed as a breakthrough that would see the relatives ‘getting their day in court’.
Under Article 2 procedural obligations, a key part of compliance with the law is to investigate killings involving the state thoroughly, independently, effectively and promptly.
For the families of many, it seemed the European judgement would be the means by which they could prise open the system that was being used to deny them the facts surrounding their relatives’ deaths.
These controversial cases include:
• The eight IRA Volunteers shot dead at Loughgall in 1987 and civilian Anthony Hughes killed in the same SAS ambush;
• Pearse Jordan, the Belfast IRA activist killed by the RUC in 1992;
• Volunteers Gervaise McKerr, Seán Burns and Eugene Toman, killed in a ‘shoot-to-kill’ operation outside Lurgan in 1982;
• Patrick Shanaghan of Sinn Féin, shot dead by loyalists near his County Tyrone home in 1991;
• Dermot McShane, crushed by a British Army armoured vehicle during rioting in Derry in 1996;
• Solicitor Pat Finucane, gunned down by the UDA and RUC/British Army agents in his family home in 1989.
It was obvious that the inquest system would become central to the next stage of their fight for justice but it also became clear that the British Government would do all in its power to interrupt, slow down and even block the legal process in its efforts to keep the lid on the activities of the British Army, RUC and their loyalist surrogates.
Now, almost 15 years after the ruling, the families of those killed by the state are asking whether or not they will ever get to know what happened their loved ones.
Speaking on 1 October this year, the Chief Constable of the PSNI, George Hamilton, described the inquest system in the North as “chaotic”.
He told a meeting of the Policing Board:
“It is chaotic, people are going from one inquest to the next depending on which coroner is shouting the most.
“It needs to be more of a whole-system approach.”
Four days later, on 5 October, Sinn Féin MLA Bronwyn McGahan drew attention to serious problems within the coronial system when, during a debate in the Stormont Assembly, the West Tyrone MLA highlighted the “under-resourcing of the Coroners’ Service” which is adding to delays in holding inquests.
With the North’s most senior coroner, John Leckey, set to retire on 31 October, without a replacement in post, and two other coroners on sick leave, the chaos that Hamilton described is set to continue.
However, to see this chaos as simply the result of under-resourcing and sick coroners is to miss the point.
• Relatives for Justice and Committee on the Administration of Justice have criticised the failures to hold inquests
According to the Committee on the Administration of Justice (CAJ) in its January 2015 report, The Apparatus of Impunity, the inquest process “has been obstructed by endemic delays, particularly in obtaining disclosure of information from state agencies”.
In fact, continues the CAJ, “a significant number of the systemic failings, seven in all, identified in the Strasbourg ‘right to life’ cases relate to the inquest system”. And as the inquest remains the only forum available to families seeking redress, the coroners’ court has become the main focus of their campaigning.
With more than 50 legacy inquests involving 86 deaths going through the system (most of which were carried out by British Army undercover units, the RUC and loyalist death squads where collusion is suspected) it is no surprise that the British Government and its state agencies have, according to Mark Thompson of Relatives for Justice, “log-jammed” the system.
Speaking to An Phoblacht, Mark Thompson said:
“Many of the killings being examined look into the role of the British Army, the SAS, and the RUC so this may help to shed some light on why inquests have become ‘log-jammed’.”
That the British Government has made direct interventions in its efforts to block inquests from going ahead exposes its direct attempts to prevent the details and facts surrounding particular killings to go ahead.
In July 2014, British Secretary of State Theresa Villiers, using the hoary old “interests of national security” argument, referred the Loughgall killings to the British Advocate General in a clumsy attempt to prevent a fresh inquest from going ahead.
On 23 September 2014, however, Advocate General Jeremy Wright QC, who is independent of the British Government, announced that “following careful consideration of a huge amount of material. I have come to the decision that new inquests into the Loughgall deaths are justified”.
Not only was the Advocate General’s decision a blow to Secretary of State Villiers, it was a puck in the eye to retired senior RUC and PSNI officers and their mouthpiece, DUP MP Jeffrey Donaldson.
Raising the threat to national security in a parliamentary question in 2012, Donalson stated:
“Last night we had a briefing from senior retired police officers about the threat to national security from evidence that is being given in inquests that opens up the whole modus operandi of our security forces and security services. What do the Government intend to do to protect national security from this threat?”
In November 2014, PSNI Assistant Chief Constable Drew Harris was in the news when it was discovered that he and the now-retired Deputy Chief Constable Judith Gillespie addressed meetings with retired RUC and PSNI personnel where it is believed they were briefed on how to deal with inquests into controversial killings by state forces. Advisers from the PSNI’s Legacy Support Unit also attended.
Gillespie addressed the meeting on “the legacy landscape” while Harris spoke about “the view from crime operations”. Crime Operations, which Harris headed up, includes the C3 Intelligence unit – formerly Special Branch.
The CAJ has become “increasingly concerned at the capacity of the inquest system”.
Despite the changes wrung out of the British Government by the ECHR Article 2 ruling, there remain serious blockages.
The human rights watchdog identifies, among other issues, the anonymity of selecting juries and the excessive delays in bringing cases to court as problematic.
Nor can juries in the North reach verdicts of lawful or unlawful killing which fall short of international standards while both the PSNI and the British Ministry of Defence continually redact documents and refuse to release documents to the families’ legal teams.
Juries are also required to return unanimous verdicts thus raising questions about the impartiality of jurors and their ability to influence a verdict.
In the inquest into the deaths of Volunteers Dessie Grew and Martin McCaughey, one juror fell asleep or was not paying attention on FIVE separate occasions. The same juror was hostile towards the families’ counsel and even spat at family members.
In the case of Volunteer Pearse Jordan, a juror criticised the Jordan family’s barrister and in a note to the coroner stated: “I feel this inquest is very unfair. Do we really need to hear all this?” The coroner, a Mr Sherrard, refused to dismiss the juror!
While CAJ’s The Apparatus of Impunity is an overarching analysis of the numerous mechanisms used by the British state to cover up its dirty war and protect its agents and agencies, inquests remain the only domestic legal setting within which families can challenge the state’s version of events.
When the British Government published last month its proposed legislation on dealing with the past, it drew criticism from Sinn Féin with Gerry Kelly MLA describing it as “unacceptable and a clear breach of the Stormont House Agreement”.
“All the parties at Stormont House agreed on the need to provide justice and truth recovery mechanisms for the families of victims of the conflict.
“The British Government’s legislation on dealing with the legacy of the past is in clear breach of the Stormont House Agreement.
“The legislation being proposed by Secretary of State Theresa Villiers and her colleagues in the British Government is about hiding the British state’s role as a central player in the conflict and its collusion with unionist death squads.”
Clearly the present British Government is picking up where others left off – they are still fighting their dirty war by denying families the justice they need.
As An Phoblacht goes to print Chief Justice Declan Morrow announced that judges are to preside over all outstanding inquests