Truth and Justice as hostages

Mark Thompson

As I waited outside Courtroom 13 at Laganside Court for the inquest into the loyalist killing of Roseanne Mallon to resume on Friday 6th December a few yards away in Courtroom 11 former republican prisoner Seamus Kearney was due for sentencing.


Seamus was convicted in relation to the IRA killing of an RUC member, Johnny Proctor. Mr. Proctor was shot dead as he left Magherafelt hospital where his wife had just given birth.


The prosecution of Seamus Kearney is as a direct result of work by the PSNI’s Historical Enquiries Team (HET) and the PSNI’s C2.


Seamus Kearney is married to Fiona O’Hagan who was widowed with a young family when her husband, Bernard, was shot dead in 1991 as he arrived at Magherafelt College where he was a lecturer. Students witnessed the loyalist killing. Some were deterred from giving evidence about the killing by the RUC – a standard practice at the time.


Bernard O’Hagan was also a Sinn Féin Councillor elected to Magherafelt District Council. Some DUP Councillors made repugnant and deeply offensive remarks after the killing. This too was commonplace. The Council refused to recognise and mark the killing of an elected official all adding to the O’Hagan family grief.


The killing was one of a series of killings by loyalists throughout the South Derry area where collusion between the RUC, UDR and loyalists is sufficiently evidenced beyond reasonable doubt. It is most definitely not a case of collusion on the balance of ‘probabilities’.


As Seamus Kearney was brought into the Courtroom 11 Sean Lynch and I sat together. As a former combatant Sean survived an SAS ambush in which his comrade Seamus McIlwaine was wounded, interrogated, and then killed. At a later inquest into that killing Sean was brought from prison as a witness and a jury found the SAS killing to be unlawful. The Coroner immediately struck out this finding. The Mallon’s are friends and constituents of Sean.


Other former republican POWs were also there. I sat there thinking of all these events and of how one set of circumstances prevails above and beyond the other. I thought about the need to deal with the past in an independent way compatible with sustaining and building a credible way forward for our entire society. I also reflected on the ham-fisted intervention of John Larkin that was both wrong in terms of drawing a line under the past and a blanket amnesty.


No one has ever been in a court regarding the killing of Bernard O’Hagan and yet the very security institutions prosecuting Seamus Kearney were the de-facto authors of Bernard’s killing. And the SAS soldiers that lied at the inquest into Seamus McIlwaine’s killing were never held to account despite the verdict of a jury.


The previous evening I was invited into the UTV Live studio for a discussion on the Smithwick’s findings and the past. I was personally struck by comments in a pre-recorded piece to the discussion by the widow of Johnny Proctor saying that her husband and Seamus Kearney were both 25-years old at the time and of how her life was forever changed for the worse. I was equally struck by the interview of their son, also named Johnny after his father, the previous week – a father he said he never knew or met. It was a story all too familiar. I thought about the O’Hagan children.


Many, including republicans who engaged in armed conflict, felt their hurt, pain, anguish and loss. We are also a society recovering our humanity and seeking to understand all experiences of loss, injury and imprisonment post conflict, which is not without its challenges and difficulties. I thought about the words of Abraham Lincoln ‘binding the wounds of the nation’. I thought of the contrast to how Fiona O’Hagan was treated.


The HET and the PSNI have responsibility for numerous investigations into conflict killings. More recently the HET were exposed for the partial and indeed ‘illegal’ way they approached killings by the British Army with ‘less rigour’. A fact illustrated in that despite examining hundreds of cases where British soldiers killed citizens, mostly uninvolved civilians and children, the HET and the PSNI have failed to prosecute one single soldier. But are prosecutions the only way forward? I’ll come back to this.


Is this policy – is it political – and what impact is this having on how we deal with the past where post the war there is a continuing pursuit of those who opposed the State whilst also covering for those within State forces who took lives and colluded?


The clear answer is the PSNI and the HET have vested interests concerning what the State did during the conflict. They are not independent. Simply put they are perpetuating the legacy and culture of State impunity and thus a State narrative. Worse they are reinforcing this as part of transition and peace and this is grossly offensive to many victims where arguably there should be more of an onus on State accountability. And yes it is policy and it is political.


The fingerprints of the same police officers responsible for the prosecution of Seamus Kearney are the very same officers responsible for the failure to provide information in numerous inquests where the State is being examined concerning deaths. They represent an inner cabal who have reinserted themselves into the PSNI and are effectively attempting to hollow out the Patten reforms and prevent the past from being examined when it concerns the Special Branch and other State intelligence agencies. They have even been party to blocking the release of public records surrounding killings that led to RFJ and KRW Law being brought to court following the lawful release of public documents by Minister Ni Chuilin. They wield power within policing structures particularly around legacy killings and disclosure. They have a clear political agenda.


Seamus Kearney was sentenced to twenty-years. Under the terms of the political agreement he is eligible for early release.


For the Proctor family they feel that the process has worked for them and I respect fully that position. But in a wider context some prosecutions that are driven by the HET and PSNI whilst burying and destroying evidence concerning collusion and State killings is not the way forward. The majority of families bereaved by the conflict will not avail of a prosecutorial process.


So what’s available for them and how do we square the circle in not allowing a blanket amnesty whilst ensuring accountability?


The HET has failed, the Police Ombudsman hasn’t the resources, deliberately or otherwise, and is recovering from interference by the cabal referred to, and inquests have become a default mechanism in the absence of a proper truth process. These too are being strategically strangled in terms of resources and families feel the consequences of the Department of Justice attacking legal aid necessary for families to be fully and adequately represented while the State uses public money in denying truth without comment. And that’s not to mention the destruction of evidence and vetting of disclosures and public interest gagging orders prohibiting the full examination of all the available evidence.


Applying the Smithwick’s test of collusion then surely inference must become a key factor when cooperation is refused and evidence destroyed in all legal and transitional truth mechanisms.


On returning to Court 13, the inquest into Roseanne Mallon, we learned that the RUC had used what the judge described as ‘a unit within a unit’ to do ballistics on the murder weapon rather than using the proper forensic lab; that those within this unit did not have the qualifications necessary yet produced a false report stating that the murder weapon had no previous history; we now learn that the same weapon was used in a series of murders mostly of republicans and their relatives; and that some of these ‘forensic scientists’ will seek anonymity if called to account for their ‘mistakes’. Many families are now wondering if this same unit was one that handled weapons handed back to loyalists by Special Branch. Was this a ‘unit’ that didn’t require the same regulation and paperwork normally associated with the proper forensic lab and exactly who was it comprise of and answerable to?


Unlike Smithwick we won’t see a rush by senior intelligence police officers to provide evidence and reports at this inquest. We have seen the opposite.


Limited or use amnesty is never to be confused with amnesia. However, limited forms of amnesty will undoubtedly play a role in a future truth process as it has already done so from 1969 in the Scarman Tribunal, the location of the remains of the disappeared, Bloody Sunday, Smithwick and decommissioning.


However, limited amnesty must be within a legal and human rights compliant framework with full powers of subpoena and which can robustly test evidence where transactional prosecutorial immunity may be sought. Within such a process thematic issues including nature, causes and extent of conflict must also be examined. Focusing on individual culpability could potentially miss the crucial policy context that largely enabled much of the State violence to occur. Such an outcome would undoubtedly be a fundamental error. Organisational and governmental accountability is necessary.


It is within such a framework that some families may make decisions about engaging and seeking truth and especially where inference will be drawn in their favour should evidence be destroyed or withheld and where failure to cooperate with compliant investigative mechanisms arise. Crucially such a truth process must be internationally independent and not as witnessed in the contrasting difference of Laganside Court 11 and 13 last week where truth and justice are themselves hostage to politics and vested interest.