Continuing with an old practice

By Brian Feeney (for the Irish News)

Stormontgate is not the first time the DPP and the British attorney-general have decided not to proceed with a prosecution. Far from it.

Indeed, public dissatisfaction with the arrogant and condescending approach of the DPP’s and attorney-general’s offices was what led to the Criminal Justice Review (CJR) recommending in 2000 that the DPP provide “as full an explanation as is possible without prejudicing the interests of justice or the public interest”.

As you see, that was about as weak a recommendation as you could devise. The CJR added that the DPP’s “presumption should shift towards giving reasons where appropriate”.

Really radical stuff eh?

Even so, it was too much for the British administration here, which accepted the CJR’s proposals ‘with qualifications’. In other words, there was going to be no change. Last week confirmed that.

There was another reason for the CJR’s interest in the prosecution service.

For decades the old DPP’s office had worked hand-in-glove with the RUC, with the Special Branch being very much the hand in the glove.

In fact nationalists regarded the DPP’s office and its strange decisions as evidence that it was pretty much the RUC’s puppet. Hence the demand in the Good Friday Agreement for a truly open, independent prosecution service.

Judging from the reaction of both unionist and nationalist politicians last week it seems what we have is a case of plus ca change. The DPP decides what the public interest is but won’t tell anyone else or explain why and that’s that.

What did the prosecution lawyer’s cryptic reference to the public interest and human rights legislation mean? The evidence, if you can use that word in connexion with this case, seems to be the following.

The solicitor for the ‘Stormont 3’ heard that there was a secret PSNI operation called Torsion going on for most of 2002.

The suggestion is that as part of Operation Torsion an agent acting for the PSNI or MI5 secretly entered private premises and spirited away documents which might later have been presented as evidence. These documents were then returned to the private premises.

The solicitor applied last February for material referring to Operation Torsion to be revealed. The Crown applied for, wait for it, a Public Interest Immunity Certificate to prevent this material being released to the defence. In short they were arguing that it was not in the public interest to reveal it. Geddit?

Now, regardless of claims that the security services were protecting the identity of an agent within the IRA or anywhere else, the simple fact is that, as every first-year law student knows, if evidence has been taken away and returned ‘the chain’ has been broken.

Such documents are worthless as evidence because they could have been added to, subtracted from or otherwise tampered with.

Human Rights legislation and the Police and Criminal Evidence Order require disclosure of such information to the defence. Had that been done the case against the Stormont 3 would have instantly collapsed.

It seems therefore that the security services and PSNI in 2002 were continuing their old practices of bugging and burgling without regard to changes in legislation introduced in the 1990s. The wonderful shiny new PSNI had ruined the case for the prosecution.

Of course we’ll never know the details because the DPP seems intent on continuing the old practice of claiming to act in the public interest without revealing to anyone what the public interest is.

Does the public not have a right to know if the security services wrecked the case by tampering with evidence?

Now that the case ended in acquittal, why is it a secret if they did?

What conclusion can we draw from this morass? It’s quite simple. The sooner the legislation to devolve powers over justice and policing to locally-elected people which Sinn Féin is demanding is passed the better. It’s promised for March.

The legislation should also include provision for a local attorney-general who is answerable to an assembly or a minister of justice.

Without such machinery the DPP here can thumb his nose at local politicians while his boss the British attorney-general can ignore them.

That machinery is SF’s price for supporting the PSNI.

Urgent Appeal