Supreme Courts around the World: the US Supreme Court

Supreme Courts around the World: the US Supreme Court
LAURA COOGAN 
UK Supreme Court Blog
18 Oct 2012

The US Supreme Court yesterday extended the stay of a Federal Court order which provides that transcripts and tapes of interviews between researchers at Boston College and a member of the Provisional Irish Republican Army should be handed over to the British government.

In 2001, Boston College began a research project (known as the “Belfast Project”) which looked into the Troubles in Northern Ireland. Between 2001 and 2006, a number of individuals were interviewed as part of the Belfast Project, including former members of the IRA and the Ulster Volunteer Force. These interviews were conducted on the understanding that the information given by the interviewees would remain confidential until after their deaths.

One of the interviewees was Dolours Price, a former member of the IRA who in 1973 was convicted in the English Courts in relation to her role in a car bombing at the Old Bailey.

Ms Price has since given interviews to The Sunday Telegraph and CBS Evening Newsin which she made reference to her activities as an IRA member. In the latter, she referred to having a role in the abduction of Jean McConville. Jean McConville was a West-Belfast mother of 10 who was allegedly abducted, murdered and secretly buried in 1972 by the IRA as a result of being a suspected informant. Hers was one of the most high profile murders that took place during the Troubles, and remains unsolved.

The Police Service of Northern Ireland is seeking access to the recordings and transcripts of the interviews Ms Price gave to the Belfast Project in connection with the unsolved murder, claiming that they contain a detailed account of what happened to Jean McConville. The British government has issued subpoenas for the documents under the terms of a Mutual Legal Assistance Treaty (“MLAT”) between the US and the UK.

Earlier this year, the First Circuit Court of Appeal upheld the decision of the Federal Court. Mr Moloney and Anthony McIntyre, a researcher for the Belfast Project (who was previously an IRA volunteer), are seeking an appeal of this decision by the US Supreme Court.

Messrs Moloney and McIntyre’s lawyers argue that the MLAT gives the British government greater powers in relation to issuing subpoenas than could be exercised by US bodies: subpoenas issued by the latter could be challenged on First and Fifth Amendment grounds, whereas subpoenas served by foreign powers under an MLAT cannot be challenged in such a way.

Mr Moloney has said that the disclosure of the documents to the PSNI would have the unattractive result of no one else being prepared to speak out about what happened during the Troubles. He has been quoted as saying

“Clearly this case is developing into a major assault on privacy. Not content with assailing academic rights, the PSNI are now set to lay siege to the media as well. Where will this stop?

It has also been argued that disclosure of the tapes could risk the welfare of Mr McIntyre.

Mr Dornan, one of the lawyers of Messrs Moloney and McIntyre has been quoted as saying

“My clients have raised issues of exceptional importance, including the constitutional right to free flow of information to the American public in the face of a foreign subpoena, the protection of important academic research, and the harm which the release of these materials would cause”.

The decision of the US Supreme Court means that Messrs Moloney and McIntyre will have until 16 November to file a formal appeal of the First Circuit Court of Appeal’s decision in July of this year.