Marking twenty eight years

In any other jurisdiction, there are cold case reviews on a regular basis. Even the PSNI is embracing this idea , with the recent activity over the death of Inga Maria Hauser, found dead in April 1988.

As someone said , recently, sad as it is, why her?

The answer of course is that the huge lump of Troubles deaths involve the state and the vast store of documents, implicating it. There are stores  in Sprucefield, Seapark and Thiepval, where the army sits on a million copies. The state, in the form of Hamilton, Harris and the faceless people of MI5 will keep the lid on, as best they can.

All the citizen can do is keep probing.

What is additionally disappointing is that the new leaders appear to have gone to Spooks Academy.

Consider the letter written by the deputy director of the PPS in the case of Seamus Ludlow. His understanding of hearsay would shame a first year law student. How did he become deputy director and regurgitate all the lines of the state? Can you guess? Let’s hope he gets well spanked in the High Court.

As part of the week to mark twenty eight years since the murders of my parents, I am posting a secret document, giving an insight into how the state worked.

There will be other posts in this anniversary week.

 

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Moussa Koussa, an odd man out

MK, as I shall call him, born in 1947, was one of the most powerful figures in Gadafy’s regime. Educated in the USA, he was head of the Libyan Intelligence Agency from 1994 to 2009. He then became foreign minister. He defected in March 2011 as the Arab Spring engulfed Libya. Arriving into  Farnborough by private jet , he was guarded by British Intelligence until he was permitted by the Foreign Secretary, William Hague, to leave for Qatar.

There has been much press speculation that he was a MI6 agent.Papers released by the CIA in relation to the Senate Inquiry into Mrs Clinton point to him  being  their asset.

Despite calls for him to be questioned about the killing of WPC Fletcher and the supply of Semtex to Sinn Fein/IRA he was spoken to only by the Scottish police, presumably in relation to the Lockerbie massacre.

The then Foreign Secretary , William Hague,  told the House of Commons that officials would encourage MK to cooperate fully with all requests for interviews with investigating authorities. This was said with a straight face.

Both the USA and the EC lifted both monetary and travel sanctions against him.

Well done thy good and faithful servant!

So, there it is then. MK saw the light, defected, recanted and now lives in comfortable retirement.

Enter Andrew MacKinlay at the Northern Ireland Affairs Committee.He said in evidence that MK was a known terrorist , named to him by Leyden , the British Ambassador as having been “up to his neck in Lockerbie”. MacKinley went on ” There were far too many people and agencies who would have been embarrassed in either a British or an International court… it is a reasonable assumption that his fingerprints would have been all over the supply of Semtex and other weaponry to the IRA.”  He went on to say that MK probably authorised supply to the IRA.

The really embarrassing thing for the “Peace Process” would be that MK knows precisely what Sinn Fein/IRA got. Comparing it to what was “decommissioned” would not be in the interests of the Peaceniks.

You might wonder Dear Reader , when the Director of Public Prosecutions is so exercised about the alleged murders by British forces  in Belfast and Derry , that he might be a little concerned about Andrew MacKinlay’s allegations. Unless I have missed something , he has been utterly silent.

So too, the silence of Chief Constable George, the man who invariably follows where the evidential trail leads.

The answer may lie in what MacKinlay says. Neither Barra nor George fancies facing up to the opening of Pandora’s Box. Or they have been told to do nothing by their political masters.

Happy Christmas Moussa!

Barra and George

Barra McGrory has been in post since 2011. Time enough , you might think, to get the basics right.

Let’s look at how his team is doing on disclosure.

Disclosure,  Dear Reader is an obligation placed on the prosecution to give to the defence any material [statements, forensics etc.] that might be considered capable of undermining the case for the prosecution or of assisting the case for the accused. In other words the prosecution cannot hide evidence which does not suit their case.

This month,  Criminal Justice Inspection NI published a report into the quality of police files.

It found that “disclosure was dealt with satisfactorily by police in only 23% of Crown Court cases. This is unacceptable”.

In his report Brendan McGuigan , Chief Inspector of Criminal Justice, listed the consequences of disclosure obligations not being followed. See para 3.41. Astonishingly, he failed to mention the most important risk of all, that an innocent man might be convicted.

Imagine that you are wrongly accused of shoplifting. Your defence is that you were not in the shop at the time, you were walking in the local  park. The police fail to disclose that they took a statement from a man who  recognised you , walking a dog.

You are convicted.

The issue of disclosure has featured in many  appeals and  in references by the Criminal Cases Review Commission. It is not new and it is not rocket science and the subsequent acquittals or quashings of conviction may only be the tip of the iceberg.

You might be tempted to say ‘ now that it has been highlighted I’m sure George and Barra will fix it’.

Well, in April 2013 the Inspector found that the PPS records of continuing disclosure to defence teams were “not good” and some compliances were “very poor”.

So what did Barra say about that?

He said ” I am confident that the PPS can rise to the challenges highlighted”.

Well Barra, as they say in Belfast has not “riz” at all. This despite publicly criticising PSNI files in March 2012 , only four months into the job, in an effort to divert attention away from his underachieving and dysfunctional Service.

The lesson?  Try not to be prosecuted in the Crown Court in Northern Ireland. It is a dangerous place for defendants.

All of this has received little coverage in a media obsessed with sensation.

More disturbingly, unless I have missed it ,the Criminal Bar Association [with justice  as its watchword],  has not commented on this limp  performance by Barra and George.

Barra would serve justice better by putting his head down and delivering a first class prosecution system, instead of sound bites.

Hiding in plain sight

Aren’t we missing something, Dear Reader?

During the vexed times when Sinn Fein/IRA were negotiating with Blair and matters such as decommissioning, or the lack of it, on-the-runs and Royal Pardons were being discussed there was a class of person for whom there was a difficulty. The murderer  such as Martin McGuinness or Brian Gillen, who had not been convicted. If you had a conviction, a Royal Pardon solved it. If you were outside Northern Ireland you got a letter. What to do with the rest? Given the level of detailed negotiation and subsequent events, there must , at least , have been an understanding about their future.

Try this. Unless the participants  commit a further offence, HMG will ensure that nobody will be prosecuted for a crime committed prior to the GFA. Should the PSNI arrest, charge and/or report someone on the list for an offence pre-GFA , HMG will ensure that , even if there is evidence which passes the test for prosecution, the prosecuting authority will be advised that prosecution is not in the public interest.

The legal basis for this is the Shawcross Doctrine. The executive can overrule the law officers in certain circumstances. Originally , regard had to be given to “the effect which a prosecution successful or unsuccessful as the case may be would have on public morale or order”.

Dominic Grieve also included ” where necessary to safeguard national security”.

Does this explain the paralysis re Gerry Adams, the dropping of a case against McGuinness in the 1980s, the disappearance of the file in Operation Taurus and the remarks of the investigators into the Enniskillen bomb? Does it explain the shock articulated by McGuinness when Adams was arrested and the mention of dark forces. Does it explain Bobby Storey’s guldering on a west Belfast platform? [ the caterpillar, before he was the butterfly]

Prosecutions are going nowhere, unless it is now in the public interest to let them.

Is it?

Humpty Dumpty sat on the fence

Humpty Dumpty told Alice that if he ever fell off the wall, the King would send all his horses and all his men to pick him up.

Our own policing Humpty Dumpty can look forward to the Queen sending him a knighthood, providing he stays on the fence.

Last night Sharon O’Neill asked him a very obvious question; “Who is the leader of PIRA?”

His answer was that membership is a criminal offence and he wasn’t going to do or say anything or speculate on anything which could undermine any future court proceedings.

So there you are Dear Reader, the Chief Con is on the case “following the evidence”. Can’t you see him with his magnifying glass and cape , accompanied by Joe 90, examining the footpaths of West Belfast?

Of course he could have arrested a sizeable proportion of PIRA high command the other week when he met them in a hall in West Belfast, a hall being guarded by a PIRA run security company. He shook hands with a man who has murdered many innocent people. The butchers boy from the Bogside.

To imagine for a moment. George causes a file to be sent to Barra-Boy. It contains evidence against senior members of PIRA, it being a proscribed organisation. Barra, because of his past would have to pass it to the team which bought you such block busters as Cahill and McCartney.

This is just a little fantasy for two reasons.

  1. A number of the northern command and the Belfast brigade PIRA are state agents. Therefore George and MI5 know exactly what is going on in PIRA and keep the Secretary of State informed.
  2. I have been asking since 1990 why no senior member of PIRA was questioned about the murders of my parents.

No senior member of PIRA has ever been convicted.

As Northern Ireland descends into chaos and farce with this , Nama, Red Sky and other imbecilic acts, will the unionist parties have the courage to act?

Don’t hold your breath. As they often say in Ahoghill; “Deus ex machina”.

The Good Old days, when Barra was a pup.

Roy Junkin, sometime deputy director of the DPP, used to remind his staff and police the “we are in the ‘E’ business”. E stood for evidence. A case would not be prosecuted unless and until the evidence supported a reasonable prospect of success of conviction. That was the test.

Barra was just a pup then.

Now the PPS , under Barra’s command, are all over the place.

[Although it should be said that he did apply  for another job]

Consider the Ivor Bell case. As I understand it , the case against him is that he has given interviews to the Boston College project and therein he has incriminated himself in the murder of Jean McConville. Thus he has been charged with membership of the IRA and aiding and abetting her murder.

You might think, Dear Reader that before the police arrested him they had some evidence to support the contention that his voice could be heard on a tape.

The law requires that a police officer must ‘reasonably suspect’ that a crime has been committed before he arrests.

So Bell was arrested in March 2014 and he was charged a few days later. Undoubtedly the PPS would have been involved in the decision to charge.

So that’s it. Police have evidence that he spoke words on tape…..

Well, not exactly, because in May 2015 the PPS had not made up their minds and had involved senior counsel. Not so cut and dried?

The PPS prosecutor needed further time. Further time was afforded by the court and eventually the PPS indicated that the case would proceed. So the prosecutorial test had been passed. “A reasonable prospect of success”. Hurrah!

On 30 July the case was listed for a preliminary enquiry on 22 October 2015 over eighteen months after Bell was arrested.

In the meantime a lawyer in the PPS will be putting the papers in order. Statements of evidence, which already support the contention that Bell is guilty as charged. Just a clerical exercise…..

But, just a minute!

The PSNI wrote  to Ed Moloney, in August 2015 asking if he would cooperate as a witness in the case.

I am tempted to ask “What is Barra-Boy up to?”  Then I remember. In the words of Jim Allister, Barra was Sinn Fein’s lawyer of choice before he took the Queen’s shilling. Many of his clients were senior members of the provisional IRA. He has played no part, I think, in the Bell case.

So the team who are bringing you the Ivor Bell prosecution brought you the Mairia Cahill debacle.

My more constant adherents may wonder why, coming from my background, I find the Bell case so worrying. Five points.

  1. If the State can fit up Bell, so stand we all in peril.
  2. The PPS and particularly its Director are not fit for purpose.
  3. The handling of the case, given its fame, is awful. Cart before the horse. What chance does the ordinary citizen have?
  4. It’s another in a long line of flawed prosecutions.
  5. My father, killed at the hands of the Provisional IRA , taught me to respect the rule of law. It is conspicuously absent here.

The wonderful world of the PPS

Aside from the considerable interest the press and public would have taken had Barra appeared as a witness for the defence or the prosecution  [see Larkin para 4.49-4.51] in the trial of Liam Adams, a number of other points arise from the Starmer and Larkin reports.

1. Why was Gerry Adams, Barra’s former client, not called in the second trial? The answer to the justice committee from the Deputy director was “technical reasons” [ a well known legal term] and the volume of potential disclosure. One wonders if this disclosure related to Gerry’s terrorist activities and/or his usefulness to the state. It may well be another example of where intelligence held by the state intrudes into the administration of justice.

2. Whilst taking responsibility for the AA/BB/Cahill shambles Barra blamed the two prosecuting barristers. Asked by the justice committee about his civil servants , his response was that of the three involved , one had retired and the other two were not in the places they had been when the events happened. This is an obscure remark. Does it mean that they have been sent to the PPS equivalent of the Russian Front or Siberia? He went on to tell the committee that neither would be disciplined because their actions “did not raise issues of indiscipline”. So there you have it. No harm will befall the civil servants, they will eventually retire on their inflation proofed pensions. Meanwhile they may be performing incompetently in your case, dear reader. Their names have never been made public. Meanwhile the two barristers face a public disciplinary hearing.

3. Moving on from that demimonde , Barra was asked a number of questions by Edwin Poots. Barra initially declined to respond when Poots  asked him what ‘he put his thing in me” might mean. Having unsuccessfully appealed to the chairman for protection, he stated that it was a description of penetration. Poots point was that that remark by the complainant re Liam, her father, constituted a complaint of rape and that it had been heard by Gerry, bringing him within the ambit of the then legislation on with holding information. Larkin concluded that Aine’s evidence re Gerry called at the very least for clarification.

4. Alban Maginness told Barra that Larkin’s report gave the PPS “a clean bill of health”. Let’s examine that. The real nub of the PPS performance is set out by Larkin at paras 6.17- 6.22. Larkin notes that in relation to the assessment of the evidence against Gerry, neither the acting director nor senior counsel appear, from the acting deputy director’s minute, to have been provided with the two transcribed interviews of Aine. Nor did senior counsel have access to a minute from the directing officer. So , another PPS communication failure. Larkin was not asked to comment on the decision not to prosecute Gerry but it is clear that had communications been working properly , at the least the PPS would have sought clarification from Aine or Gerry. Larkin describes the “obvious steps” that should have been taken at 6.40. This all leaves out of account Larkin’s view that the PPS did not follow its own procedures.

5 Enter the PSNI, stage left. The police told the PPS that Gerry Adams had “quite rightly…Aine’s welfare at the forefront throughout”. Contrast that astonishing statement with his performance under cross-examination in the first trial. Is this a genuinely held belief by the PSNI or was it another smokescreen? They lobbied the PPS for no prosecution of Gerry “in the public interest” Did it fall within example [x] in the PPS list of some grounds for not prosecuting in the public interest ” where details may be made public that could harm sources of information, international relations or national security”?

6. A number of the members of the justice committee voiced concern at the performance of the PPS. It is hard to disagree.

6. Larkin’s report was spun by the PPS as a vindication of its activities. It is no such thing.