BY LAURA FRIEL
The office of the Director of Public Prosecutions has failed to deliver justice to the people of the Six Counties. It has pursued the interests of the state to the detriment of the citizen. It has failed to protect the community from illegal actions by the British crown forces, such as shoot to kill and collusion. It has perpetuated the use of torture and ill treatment as a means of securing convictions.
In November last year, 72-year-old Alex Hegarty lay on his deathbed unaware of frantic efforts to persuade British NIO Security and Victims Minister Adam Ingram to allow an official to travel to Derry to listen to his story. In July 1972, during Operation Motorman, 15-year-old Daniel Hegarty was shot twice in the head at close range by a British soldier using a General Purpose Machine Gun.
The failure of the DPP to operate within the framework provided by international standards and human rights law represents a blatant disregard for the protection of human dignity,
the Pat Finucane Centres
Two teenage cousins, Thomas (18) and Christopher (17) were walking with Daniel at the time. Christopher was also shot in the head but survived. After the shooting, the soldiers did not search any of the boys and Thomas, who was uninjured, was not detained.
The soldiers' actions immediately after the shooting belie their later justification that they opened fire because they believed one of the boys was carrying a revolver. Despite these discrepancies, in July 1973 the Director of Public Prosecutions decided that the soldiers involved in the killing should not face prosecution.
For over a quarter of a century, Alex had sought justice for his son Daniel. A year before his own death, he contacted the Pat Finucane Centre and asked for help. A fact file outlining the case was sent to Adam Ingram.
In reply, the family were told that the case had already been investigated and a direction of no prosecution had been issued. In other words, ``the inaction of the DPP in 1973 was now being used as a smokescreen to refuse any acknowledgement that a wrong had been done''.
This double tragedy of a young son's death at the hands of the British Army and the denial of justice to a dying father by the British state is one of many cases cited in a recent critique of the DPP compiled by the Pat Finucane Centre.
The office of the DPP is made up of a Director and Deputy Director. The Deputy has all the powers of the Director and can determine prosecutions without recourse to the Director himself. Two assistant Directors also wield considerable decision-making powers and only refer matters to the Director or Deputy if they believe the case warrants such action.
Called to the Bar in 1948, Senior Counsel Barry Shaw was the first Director of Public Prosecutions to be appointed to the office in 1972. He was replaced in 1989 by Alasdair MacLeod-Fraser, also a senior counsel, who had worked in the DPP's office as Assistant Director and later as Senior Assistant Director since 1974. MacLeod-Fraser is the current Director.
Prior to the creation of the office of the DPP, it was the responsibility of the RUC to decide which prosecutions would be pursued or dropped. The Hunt report of 1969 concluded that the involvement of the RUC in prosecutions undermined their impartiality and suggested the Scottish system of independent public prosecutions be introduced in the North of Ireland.
The British government rejected Hunt's main recommendation, opting to establish an office which provided the appearance of independence without its consequences. In the wake of Hunt, the role of the RUC in determining prosecutions was diminished and the involvement of crown solicitors abolished, but power of appointment and dismissal of both the Director and Deputy Director of Public Prosecutions remained in the hands of the British government through the office of the Attorney General.
The role of the Attorney General, a political rather than legal appointee of the British government, does not end with the appointment of personnel within the office of the DPP. Decisions made by the DPP are subject to review by the Attorney General, making ``a mockery of claims that profess the independence of the office''. In politically sensitive cases, argues the Pat Finucane Centre, the role of the Attorney General is pivotal.
The document draws on the experience of John Stalker's investigation into the allegation that the RUC were operating a shoot-to-kill policy. During the investigation, Stalker complained that the then Attorney General, Patrick Mayhew, determined the scope of the inquiry by monitoring information revealed to the investigation.
When the investigation appeared to be getting too close to the truth, the Attorney General played a decisive role in the removal of Stalker from the inquiry. When Sampson, who replaced Stalker, recommended to the DPP that 11 members of the RUC should be charged, the Attorney General ruled there would be no prosecutions on the grounds of national security.
Through the Attorney General, the British government can manipulate the operation of justice, determining which cases will be prosecuted and which, ``in the national interest'', will not. This has led to the operation of a blatant double standard within the office of the DPP. The Finucane Centre document compares the fate of the Casement Accused with that of the loyalist mob that killed Robert Hamill.
There was no need for the Attorney General to step in to save RUC officers and reserve officers Neill, Atkinson, Cornett and Sharpe. The office of the DPP decided not to pursue prosecutions of the armed RUC officers who did not intervene while a loyalist mob kicked Portadown Catholic Robert Hamill to death, who made no arrests at the time and who failed to administer aid to the dying man. Clearly the DPP is not independent and views itself as ``an arm of the state'', argues the Pat Finucane Centre.
Prosecutions deemed to be in the interests of the state are proceeded with despite being in clear breach of international standards of justice and human rights. Prosecutions seen as detrimental to the state are quashed through a combination of inadequate RUC investigations, a compliant DPP and a coercive use of Public Interest Immunity Certificates and other restrictive practices.
In the last 30 years, over 350 people have been killed by members of the British crown forces - the majority of those killed have been members of the nationalist community, the vast majority have been killed in disputed circumstances. Despite this, only 30 crown force personnel have ever been asked to account for their actions by the DPP, resulting in only six convictions.
The report concludes that ``the logical conclusion to be drawn from such figures is that the office of the DPP was at the very least acquiescing'' to a policy in which crown force members appeared to enjoy immunity from prosecution, ``by actively deciding, in the vast majority of cases, not to proceed with the prosecution''.
The document also explores the DPP's relationship with the RUC. The DPP does not have primary investigative powers but ``does possess an indirect investigatory role of considerable potential.'' But the relationship between the DPP and RUC is not one of independence but interdependence. ``The failure of the DPP to compel the RUC to carry out further investigations has often been a key factor in allowing crown force personnel involved in shoot to kill or brutality to escape prosecution,'' says the Pat Finucane Centre.
In the case of Rosemary Nelson, the DPP's decision not to prosecute RUC officers involved in a campaign of vilification and death threats illustrates the office's failure to confront crown force collusion with loyalist death squads. The role of the DPP in the case of loyalist William Stobie graphically illustrates the willingness of the office to manipulate the operation of justice in the interests of illegal acts by state forces.
In the last four years, there have been over 6,500 complaints made against the RUC from members of the public alleging ill treatment or infringements of their legal rights resulting in compensation being paid in out of court settlements to the tune of over £2.5 million.
Despite this, only 19 complaints against the RUC have been upheld by the internal RUC complaints system. Only one led to the prosecution of three RUC officers.
The majority of people prosecuted under emergency legislation in the North of Ireland are convicted on the basis of uncorroborated confessional evidence obtained coercively during interrogations. The DPP's office has not only failed to prosecute members of the crown forces engaged in illegal and often brutal actions, it has compounded this by pursuing prosecutions of detainees who have been subjected to illegal and brutal treatment at the hands of their RUC interrogators.
``The failure of the DPP to operate within the framework provided by international standards and human rights law represents a blatant disregard for the protection of human dignity,'' says the Pat Finucane Centre. Indeed the establishment of the office of the DPP is best understood as ``largely a public relations exercise'', which attempted to ``engender public confidence in the prosecution process''. But even in this, the office of the DPP has failed, ``further diminishing public confidence in the criminal justice system''.
The Hegarty family's story, which was ignored by the DPP in 1973 and denied again by the NIO in 1999, appears as an appendix to the more technical analysis of the record of the DPP presented in this 65-page document. But as this example makes clear, the failure of the DPP to deliver justice has been etched out in the blood and tears of families like the Hegarty's.
``The major stumbling block to achieving justice in this, and many other cases, is the decision by an anonymous official in the office of the DPP that the life of Daniel Hegarty was expendable.''