Solicitor for the Families In conflict zones throughout the world there are often competing versions of the truth: that promoted by the state which has inflicted human rights abuses and that preserved by those families and communities who have suffered the abuses.
Those abuses are not often officially acknowledged until some time after they have been carried out. The Bloody Sunday families can testify to this assertion.
Here, in the struggle between official and unofficial versions of the truth, the law, and by extension the agencies of the criminal justice system, were often appropriated by the British government as a tool to deny the abuses.
The extensive human rights abuses committed by the British Army and RUC would never have happened but for the fact that a compliant prosecution and unionist judiciary promoted the growth of a culture of impunity in which members of the security forces could routinely break the law and present perjured evidence before the courts.
In 1970 an agreement was reached between the General Officer Commanding the British army (GOC) and the Chief Constable of the RUC whereby in an investigation into the use of lethal force by military personnel, the interviewing of soldiers, would be carried out by the Royal Military Police, another branch of the army ‘family tree’. The agreement continued until it was abolished after the imposition of Direct Rule in 1972 and the establishment of the office of the Director of Public Prosecutions.
During the period when the agreement was in force, soldiers who engaged in the use of lethal force were not subject to the rigours of the legal system, nor were they rendered accountable, in any way, for their use of lethal force. The RUC/British army agreement was a significant usurpation of the police responsibility for the investigation of crime when the suspects were soldiers.
That the procedures were hopelessly inadequate as a method for investigating the criminal conduct of soldiers has been expressly recognised by the High Court in Belfast in the case of Thompson v. Secretary of State.
The soldiers involved in firing live rounds in Ballymurphy in August 1971 were interviewed by the RMP. There was no attempt to probe these accounts, nor was there any attempt made to address the inconsistencies between the various soldiers’ accounts. It is, moreover, apparent that there was nothing approaching a proper RUC investigation into the incident. Whilst there was civilian evidence to contradict the soldiers’ accounts, particularly as regards their justification for firing live rounds, these accounts were never put to the soldiers and their accounts were simply accepted without question. Inconsistencies in the soldiers’ accounts were deliberately withheld from the Coroner.
In addition, the fact that soldiers didn’t have to give evidence to the Coroner’s Court, the lack of pre-inquest disclosure to the families or their legal representatives, and the inability of the Coroner’s Court to reach ‘findings’ meant that the original inquests into those murdered in the Ballymurphy Massacre were flawed.
The legal regulation of inquests in the North of Ireland has been subject to penetrating changes since the original inquests. These changes to the inquest system have, in large part, been due to legal challenges by the families of victims of state killings. Those who have suffered the abuses often learn from this and employ the law as a tool to focus attention on the violation.
It was in this context that the Ballymurphy Massacre families made an application to the Attorney General to exercise his powers under section 14 of the Coroner’s Act (1959) to reopen the inquests. The Attorney General has recently written to me confirming that he has directed the Coroner to reopen inquests into the deaths of Fr Hugh Mullan, Francis Quinn, Daniel Teggart, Joan Connolly, Joseph Murphy, Noel Phillips, Edward Doherty, John Laverty, Joseph Corr and John McKerr. The application by the family of Paddy McCarthy,who have never had an inquest into the death of their loved one, was not granted. The Ballymurphy Massacre Committee will continue to gather evidence and witness testimony in relation to the circumstances of the death of Mr McCarthy and intend make a further application at a later date to the Attorney General.
The fresh inquests must now comply with Article 2 of the European Convention on Human Rights (ECHR) which means that they will be considerably different creatures than their predecessors. In addition...
• British soldiers involved in the killings are now compellable witnesses
• The House of Lords has made it clear that the Coroner dealing with an inquest now has a generous discretion in relation to the remit of an inquest and that ‘the purpose of an inquest is to investigate fully and explore publicly the facts pertaining to a death occurring in suspicious, unnatural or violent circumstances, or where the deceased was in the custody of the state, with the help of a jury in some of the most serious classes of cases’ – Jordan v Lord Chancellor & Ano’r (2007)
• A jury will now be in a position to reach ‘findings’ as per the judgment of Lord Bingham in Jordan v. Lord Chancellor & Ano’r (2007) wherein he stated ‘nothing in the 1959 (Coroner’s) Act or the 1963 Rules prevents a jury finding facts directly relevant to the cause of death which may point very strongly towards a conclusion that criminal liability exists or does not exist’
But those who seek to use the law as a way of finding the truth and of honouring their experiences should be aware of its limits. Legal processes can be lengthy and traumatic. The very formal nature of legal processes prevents a coherent narrative emerging by disallowing elements of a witness’ experience that are not directly evidentially relevant. Legal processes also tend to prosecute or investigate the actions of individuals, not groups or governments, and in focusing primarily on the individual responsibility the law tends to obscure the patterns created by abuses and its part in an overall programme of political repression employed by governments.
An international and independent investigation that examines the causes, context and consequences of the Ballymurphy Massacre will facilitate a wider focus, a perspective that traditional legal models are not capable of achieving.
Whilst legal processes may be imperfect, it does not mean that the law is not an important element of a wider truth-finding process. It is only through legal processes that the rule of law can be restored. This is especially so where the legal system, including flawed inquests, has been employed by the state in pursuit of its political objectives during the conflict. The Attorney General, John Larkin, has stated that recent jurisprudence from the ECHR and the decision of the Supreme Court in McCaughey and Quinn will put the Coroner’s Court “front and centre” of the way that our past is explored.
That the British army committed murder and abuses of human rights in Ballymurphy in August 1971 is an undeniable, if much denied, truth. That truth must be set free to prevent the casualty of its recurrence and to allow some measure of communal healing. This is not a simple task, but fresh inquests which are compliant with Article 2 of the ECHR (especially in the absence of any other legal mechanisms or truth recovery process) can play a pivotal role to assist in the preservation of an accurate historical account of the events of 9-11 August 1971.