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Are you truly incapable of shame?

Former Director of Public Prosecutions for Northern Ireland, Barra McGrory QC, describes the UK Government’s legacy proposals to abolish all existing forms of due process as “astonishing and shameful”.

Adherence to the rule of law is perhaps the single most important factor that distinguishes open democratic states from totalitarian regimes across the world, whether they be single party states or military dictatorships.

The rule of law, of course, takes many forms, but all encompass processes, the central purpose of which is to hold to account those who have done a wrong to another and to make recompense wherever that is possible. First among all these processes is a criminal justice system, shaped by each society, that identifies the most serious of wrongs and creates a system of due process for the investigation and prosecution of those offences that both punishes and seeks to rehabilitate.

As a result of the serious consequences for those accused, the bar is set very high with a high standard of proof required and strict rules of evidence identified to ensure that wrongful convictions do not occur.

Alongside this are other processes, set to a lower civil standard of proof and with less restrictive rules of evidence to allow a broader range of information to be considered by the decision makers. While the penalties for those identified as having done the wrong may be limited to the public humiliation of being so identified or a financial penalty, there is nonetheless a considerable degree of accountability available to those wronged in a civil justice system. These can range from public inquiries to inquests into controversial deaths and actions arising from the myriad of civil wrongs such as assaults, unlawful killing, misfeasance in public office and many more.

In the context of the troubled history of this part of Ireland, it is one thing to creatively re-examine ways to provide an efficient and meaningful process to provide justice for the thousands of citizens who feel they were deeply wronged, but it is another to propose to abolish all forms of due process in a single stroke.

During my six years as DPP for Northern Ireland, I came to understand the enormity of the task of seeking to re-investigate and re-prosecute the entirety of the period of the troubles to the standards expected of a criminal justice system.

The PSNI and PPS in their current forms are simply not equipped for such a task. The depth of investigation and resource required to determine whether there exists even a reasonable prospect of conviction in most cases would be overwhelming.

Then there is the criminal standard of proof to consider and the strict rules of evidence that are essential in any fair criminal justice system. Add to this the reality that we have already as a society agreed to limit the maximum punishment for all crimes associated with the conflict, including murder, to two years imprisonment, it is entirely reasonable to consider alternative methods of delivering an open and thorough process that provides the accountability for wrongdoing that so many of the victims and families of victims of our troubles crave.

While this article is not the place to examine the format of a civil process that would afford a degree of deliverable accountability, it should not be beyond the capabilities or the resources available to the United Kingdom to properly address this issue.

To now inform the families involved in the many outstanding inquests into controversial killings and those who are the victims of unsolved crimes committed by the many paramilitary groups that the state intends to abolish all existing forms of due process is both astonishing and shameful. It is inconceivable that such a proposal would be contemplated in either of the two jurisdictions on Great Britain. It can only be motivated by a desire to avoid expense, inconvenience and perhaps embarrassment at some of the potential revelations. This is not the behaviour expected of an open, democratic, and accountable society.

The words at the top of this article are those of Samantha Power to the UN Security Council in September 2016 concerning the onslaught on Aleppo. That may seem an extreme comparison but let us not forget that this jurisdiction was ravaged by a violent conflict for a quarter of a century that claimed more than 3,000 lives and left many more scarred by injury and grief.

The architects of the Good Friday Agreement may reasonably argue that the historic peace it brought may never have come about had they attempted to include an accountable legacy process in those arrangements. It has been clear however for some considerable time, at least since the Eames Bradley Report was published in 2009, that the many victims of the ‘Troubles’ are crying out for some form of due process and many simply cannot move on with their lives until this is addressed.

This government’s crude attempt to wipe the slate clean will do nothing but condemn us to generations of recrimination and bitterness. Let us not regret the failure to address our troubled legacy, as it has come to be termed, another quarter of a century from now. We deserve better.

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