News of Interest: Researcher-participant confidentiality now a formal concept in Canadian law

Researcher-participant confidentiality now a formal concept in Canadian law
Miriam Shuchman
Canadian Medical Association Journal
February 3, 2014

The successful quashing of a search warrant for confidential research records has changed the landscape for protecting research participants in Canada, says a research confidentiality expert. John Lowman, a criminology professor at Simon Fraser University in Vancouver, British Columbia, says the court decision made researcher-participant confidentiality privilege a formal concept in Canadian law. However, the privilege won’t apply automatically to all confidential data; the ruling from Quebec Superior Court underscores that it must be argued on a case-by-case basis.

The pivotal case began in late May 2012, when an international manhunt was underway for Luka Magnotta, the Montréal porn actor suspected in the gruesome, videotaped murder of a Concordia University student in Montréal. With the web awash in photos of Magnotta, a man contacted police and told them that five years earlier, when he was a research assistant on a Social Sciences and Humanities Research Council-funded study of escorts, he had interviewed the alleged murderer. University of Ottawa criminologists Chris Bruckert and Colette Parent led that study, but when Montréal police asked Bruckert if Magnotta had been interviewed, she said she didn’t know.

“In fact, there was no way I could have known,” she told CMAJ. To protect the privacy of research subjects working in the sex trades, Bruckert and Parent used strict confidentiality protocols, including asking research participants to choose pseudonyms — Magnotta chose “Jimmy” — and having their research assistants sign the pseudonyms to consent forms, to guard against anyone identifying participants based on handwriting. After an interview is taped, transcribed and stripped of obviously identifying information, they send it to the participant to delete other details that could identify them. Once the participant returns the transcript, the team destroys the participant’s e-mail address, along with the connection between the name, e-mail address and pseudonym.

Undeterred, police told Bruckert they would take legal steps, including a search warrant, to obtain the interview.

Bruckert contacted the Canadian Association of University Teachers (CAUT) where Executive Director Jim Turk hired Peter Jacobsen, a lawyer known for defending journalists who are pressed to divulge their sources. Bruckert sent the digital audiotape of the interview and the 68-page transcript to Jacobsen’s Toronto office. Police seized the materials there, but took them in a sealed package, because of the legal move to quash the search warrant on the grounds that it would violate the researchers’ promise of confidentiality.

By then, Magnotta had been arrested in Europe. Later he wrote an affidavit stating that he gave an interview as “Jimmy” in a study at the University of Ottawa, that he was assured the interview would be private and confidential, and that he wanted it to remain so.

To Bruckert, the threat was clear: her research on sex workers would be impossible without confidentiality. But the issue had been tested only once before in Canada. In a 1994 Coroner’s Inquest in Vancouver, a masters’ student was subpoenaed to testify about confidential interviews with individuals who assisted suicides among people with HIV/AIDS, but after he refused to answer questions, the coroner ruled that the student’s communications with his research subjects were privileged so his refusal to answer questions was not contempt of court.

As Bruckert and Parent worked to prepare their case, CAUT negotiated with the university seeking its support of the researchers, but University of Ottawa President Allan Rock wrote Turk that the university would not pay legal costs “in the context of criminal proceedings.” Members of the university’s Research Ethics Boards also pressed for support for the professors, writing Rock that a board had approved the research on condition of the participants’ confidentiality, and months later, University administrators agreed to cover about half the CAUT’s expense, or $150 000.

The hearing took place in April 2013 before Justice Sophie Bourque of Quebec Superior Court. Her 37-page decision issued Jan. 21, follows a legal framework known as the Wigmore criteria, a four-step analysis to determine if a particular communication should be protected against disclosure. The case hinged on whether the public interest in obtaining the “Jimmy” interview for the investigation and suppression of crime outweighed the interest in what Justice Bourque described as “the free flow of accurate and pertinent information,” which could dry up without a reliable promise of confidentiality. She broke the seal and reviewed the interview transcript privately, but did not share its contents, writing that its relevancy to the charges against Magnotta or to a “not criminally responsible” defence was “minimal at most and marginal.” Bourque quashed the search warrant, concluding that “the Confidential Interview is covered by the researcher-participant confidentiality privilege and…it should not be disclosed.”

The Crown has until late February to appeal the decision but already, the case has prompted rethinking of researchers’ duties. New guidelines at the University of Toronto, for example, list principles to be followed in “research where external pressure to disclose is reasonably foreseeable” and the federal Panel on Research Ethics told CMAJ it would issue a new interpretation of the duty of confidentiality in the next two months.

News of Interest: Magnotta case precedent setter: “Researcher-participant confidentiality privilege” formally recognized

Magnotta case a precedent setter: “Researcher-participant confidentiality privilege” now formally recognized in Canadian common law, to be evaluated case-by-case

Magnotta ruling protects ‘cornerstone’ of research: profs
By Neco Cockburn
January 22, 2014

OTTAWA — A Quebec court decision that keeps a confidential academic research interview of accused killer Luka Magnotta out of police hands protects the “cornerstone” of study work, say the University of Ottawa criminology professors involved in the case.

“It’s a principle of research. We can’t betray the trust participants give us when they share their stories with us,” said Chris Bruckert, who, with Colette Parent, carried out a study titled Sex Work and Intimacy: Escorts and Their Clients between 2004 and 2008.

The research included interviews with 20 female escorts, 20 male escorts and 20 clients of escorts who agreed to speak confidentially. Magnotta was interviewed in March 2007 under the pseudonym Jimmy.

After police arrested Magnotta, now 31, in connection with the death and dismemberment of Concordia student Lin Jun, 33, in May 2012, officers acted on a tip from a student research assistant about the interview and executed a search warrant to seize the audio recording and a paper transcript.

Bruckert and Parent asked a court to quash the warrant, arguing that the circumstances supported a researcher-participant confidentiality privilege.

“This is the cornerstone of doing research — that you protect the confidentiality of your participants, and if you can’t do that, then not only does it threaten research, but it’s ethically unacceptable to do research if you can’t protect the confidentiality of people,” Bruckert said Wednesday.

Quebec Superior Court Justice Sophie Bourque sided with the researchers’ challenge this week, finding the evidence demonstrates “that the public interest in respecting the promise of confidentiality is high.

“On the other hand, the interest of society in the investigation of serious crimes such as the one (contemplated) in this case is high, but the probative value, if any, of the Confidential Interview in the pursuit of that interest is, at best, minimal and marginal both theoretically and factually,” the decision stated.

Such decisions must be made on a case-by-case basis, weighing protection of the relationship with other matters of public interest such as a criminal investigation, public safety or national security, Bourque wrote.

The court, which examined the content of the otherwise-sealed interview, concluded “that the potential relevancy of the Confidential Interview is minimal at most and marginal” to the Crown’s interests.

Magnotta is awaiting trial in September and has pleaded not guilty to five charges, including first-degree murder, interfering with a dead body, mailing obscene matter, publication of obscene material and criminal harassment.

He was arrested in Berlin in June 2012, following a manhunt that was reported around the world.

Bourque found that the researchers’ work “contributes not only to the academic community’s understanding of the sale and purchase of sexual services, but also to the broader public policy and society-wide discussions on this important, and controversial, aspect of Canadian life.

“Promises of confidentiality are integral to (the researchers’) work because it involves acquiring essential information from a marginalized population working in a stigmatized sector. Most participants like Jimmy would not agree to be interviewed in the absence of a promise of confidentiality and anonymity,” the decision states.

Protecting the confidentiality of research subjects is “crucial,” Parent said. If participants fear that confidentiality will be breached, “they won’t give an interview. It took us four years to do our interviews, and we are connected with sex workers’ organizations. This is a population who have a lot of reasons to stay in the shadows,” she said.

The decision makes clear the test that’s to be used in protecting the confidentiality of research subjects, said Bruckert.

“Courts have recognized the social importance of journalists being able to protect confidential sources, and this decision extends a similar recognition to academic researchers,” stated James Turk, executive director of the Canadian Association of University Teachers, in a news release.

Luka Magnotta’s confidential academic video interview not for police: judge
By The Canadian Press
January 22, 2014

MONTREAL – A judge has prevented Montreal police from getting their hands on a confidential academic video interview with accused killer Luka Rocco Magnotta.

The Canadian Association of University Teachers welcomed the Quebec Superior Court decision, saying it upholds researchers’ rights to protect confidential information needed for their academic work.

The association’s executive director says in a statement the ruling represents the first court recognition of researcher-participant privilege.

Montreal police had sought to gain access to a copy of the interview for evidence they’re still gathering against the 31-year-old Magnotta, who is charged with first-degree murder in the slaying and dismemberment of Chinese engineering student Jun Lin.

Lawyers representing University of Ottawa criminologists had argued the 2007 interview with a subject known under the pseudonym “Jimmy” should be kept confidential.

The attorneys said Magnotta participated in the study as part of a survey of sex workers under the condition his interview would remain confidential.

“The impact of this decision is that researchers can now have confidence that courts will recognize and will treat seriously promises of confidentiality vital to the conduct of their research,” James Turk, executive director of the Canadian Association of University Teachers, said in a statement Wednesday.

“Courts have recognized the social importance of journalists being able to protect confidential sources, and this decision extends a similar recognition to academic researchers.”

The news release published by Turk’s association said that, in her ruling, Justice Sophie Bourque noted “much academic research… provides useful information on certain aspects of the human condition that are normally kept silent.”

The Bourque ruling was also quoted by the association as saying: “The evidence demonstrates that much of the research involving vulnerable people can only be conducted if human participants are given a guarantee that their identities and the information that they share will remain confidential.”

Early Retirement of head of PSNI’s Historical Enquiries Team (HET)

Goodbye Dave Cox And Good Riddance!
Ed Moloney
The Broken Elbow
September 7, 2013

I was delighted to hear that the former head of the Historical Enquiries Team (HET), former Scotland Yard detective Dave Cox has been forced to take early retirement in the wake of a damning report by the British Inspectorate of Constabulary which found that the HET, under his direction, had treated killings carried out by state forces with less rigour and scrupulousness than paramilitary cases.

The HET, set up in 2005 as part of the peace deal, was supposed to investigate all 3,300 killings between 1968 and 1998. Cox’s sacking is an official admission it failed in this task.

This conclusion will have come as no surprise to readers of who learned of the HET’s bias and disregard for ordinary victims of violence from two pieces we published back in January 2012 dealing with the case of Patrick McCullough, a 17-year old Catholic who was gunned down by Loyalists near his North Belfast home in 1972. You can read themhere and here.

His case was highlighted by his brother, Catholic priest Joseph McCullough who wrote to The Irish Times about officialdom’s uncaring attitude towards Patrick’s death. No serious attempt had been made by the police, Fr Joe said, to discover who pulled the trigger and the HET’s attitude he described as “abysmal”. The police ineptitude or worse was in stark contrast to the efforts ofIrish News reporter Sharon O’Neill who able to discover not only that the UVF had killed Patrick McCullough but to put names to the killers who, she wrote, were well known in the area as the culprits.

Only when his letter was published and the HET shamed in public did officers from the unit contact him. Fr Joe was also interviewed by  and he told of how after his brother was killed in a drive-by shooting on the Antrim Road, the police – in those days the RUC – never came near the home to explain what happened or to update the family on the investigation.

But the home was visited by the British Army who invaded the street in which the McCullough’s lived. They were ostensibly searching the area for weapons but the only house they raided was the McCullough’s, a respectable, peaceable family with no history of republican activity. Fr Joe suspected they were going to plant  weapons in the house to discredit the family and thereby justify the Loyalist killing and would have had the local parish priest not intervened.

All these circumstances strengthened the suspicion that perhaps Patrick McCullough’s killers and the security forces were colluding together. To add insult to injury the RUC then lost all the paperwork on the case and so Patrick McCullough’s sad death was forgotten. I wrote about the case because of the contrast with all the energy officialdom has recently invested in investigating the Jean McConville case where the IRA was the culprit.

The pro-security bias of the HET lies behind the scandalous treatment of the McCullough family and evidence for it can be found in the HET’s official video which is still available on YouTube. This is what I wrote in January, 2011:

The film features four victims, the son of a Catholic shot dead by the UDA; the sister of a British soldier shot dead, presumably by the IRA; the husband of a victim of the IRA’s Shankill Road Fish Shop bomb and the brother of two Catholic men killed by the UVF.

And what’s missing? Well any relatives of people killed by the police or army, that’s who’s missing. Seemingly they don’t rate a mention on the HET video and that is not insignificant surely? It means they don’t really appear on the HET radar and in such a way are almost airbrushed out of existence. The video provides a subliminal and fascinating peek into the HET’s consciousness.

That’s not to say that in the video the HET’s commander Dave Cox does not at all address the issue of security force collusion in killings. He does, but look at how he deals with it: “Could his death have been avoided, was there collusion? Most times we are able to actually answer and dispel those worries.”

In other words: “Our work is about nailing all those terrible terrorists and setting minds to rest about the role of the RUC and army.” It’s an approach that dovetails exactly with the state narrative of the Troubles, with the state and its forces on the good side and everyone else on the bad side. Problem is, it wasn’t ever as simple as that.

Here’s the video and Dave Cox’s appearances start at 1 minutes 7 seconds:

And confirmation of this bias was there in the Inspectorate of Constabulary’s report published this July, which detailed all the various ways in which security force killings were treated more leniently than others by the HET (e.g. soldiers who pulled triggers were never interviewed under caution, meaning it would be so much harder to charge them if evidence emerged during questioning of a crime. If they claimed to be sick they could avoid being interviewed, and so on. None of this magnanimity was shown to non-security force suspects).

The pro-Army/Police bias was so intense that it was codified into the rules governing the HET’s investigations. Add to that the fact that the HET’s intelligence branch was stuffed full with former RUC Special Branch officers and the result is all too predictable.

Here is what the HET Operational Guide states:

“HET maintains it is not appropriate to compare the review processes in military cases with reviews of murders committed by terrorists. Soldiers were deployed on the streets of Northern Ireland in an official and lawful capacity, bound by the laws of the UK and military Standard Operating Procedures of that time.” (HMIC report, pp 74-75)

So, there you have it. The official body charged with investigating Northern Ireland’s troubled and violent past is set up on the basis that killings carried out by soldiers were probably lawful whereas those committed by groups like the IRA were crimes. So no need to investigate security force slayings with any enthusiasm or vigour.

It is not possible to deal with this subject without making two comments. One is that the approach of officers like Dave Cox and his colleagues in the HET are confirmation that for many in the British security apparatus the war against the IRA goes on. In theory the peace process was supposed to signal a score draw in the battle between the British state and republicanism; in practice ‘la lotta continua’ in the British mindset. The IRA has stopped shooting soldiers and policemen and stopped planting bombs; but the British are still trying to put republicans in jail.

The other obvious comment is that all this happened on Sinn Fein’s watch but the party charged with overseeing Nationalism’s interests in the peace deal did nothing to stop it, not even to issue warnings about the HET’s all too obvious bias. The HET’s faults were exposed by an academic from a Belfast university not by a Sinn Fein minister or Assembly member (nor any SDLP ones either) and it took seven years to get rid of the man responsible for them. What, one may ask, is the point of being in government if such things are allowed to happen under your nose and you do nothing about them?

Anyway Dave Cox will soon be taking the Liverpool ferry back home. It will be good to see the back of him.

NI police chief to meet head of HET after report criticises team’s work

NI police chief to meet head of HET after report criticises team’s work
Defence Management
08 July 2013

Northern Ireland Chief Constable Matt Baggott is to meet with the head of the police Historical Enquiries Team (HET) to discuss a highly critical review of its work.

The move follows a recent HM Inspectorate of Constabulary (HMIC) report which suggested the HET treated killings carried out by the army differently to other cases.

The HET was set up to re-examine 3,260 killings which occurred during the Troubles and has been run by Commander David Cox, formerly of the London Metropolitan Police, since it was formed eight years ago.

The HMIC report said the HET was investigating deaths involving army soldiers with less rigour than cases with no state involvement. It described the HET approach as “illegal and untenable”.

The report claimed the HET gave former soldiers preferential treatment and did not properly investigate deaths caused by the military. The HET rejected the claims.

The report added that the HET treated cases involving military differently as a matter of policy – a situation that appeared to be based on a “misinterpretation of the law”.

It also found that the HET did not always seek verification where a potential interviewee in a state involvement case claimed to be unfit for interview due to illness.

The HET has rejected the report’s findings.

In the wake of the report, the Policing Board of Northern Ireland said it had no confidence in the leadership of the HET and regarded all HET military case reviews as suspended.

It also announced that recommendations made by HMIC would be implemented by a working group made up of political representatives and independent figures.

The same group will also review police “failures to respond promptly to issues raised in relation to the work of the HET”.

Baggott to meet with head of HET
Published Monday, 08 July 2013
UTV News

The head of the Historical Enquiries Team is to meet Chief Constable Matt Baggott for the first time since the policing board said it has no confidence in the group.

Last week a scathing report revealed investigations into army killings during the Troubles in Northern Ireland have been less rigorous.

Mr Baggott has been asked to examine the role of Dave Cox and if the HET should continue.

It follows calls from Sinn Féin for Mr Cox to step down.

According to Her Majesty’s Inspectorate of Constabulary, the UK’s top policing watchdog, the HET has serious shortcomings and risks losing the confidence of victims’ families.

It said the PSNI unit set up to probe more than 3,000 deaths in Northern Ireland had been treating military cases differently to other cases as a matter of policy.

Members of the Policing Board met last Thursday to discuss the findings.

In a statement the board said it has “no confidence in the leadership” of the HET and has asked the Chief Constable to review the organisation’s management.

The board added: “The HET should continue the process of conducting all other reviews but it should not finalise any cases until all the necessary reforms are completed.

“The board has established a dedicated working group to take forward and oversee the implementation of all of the recommendations in the HMIC Report.

“This group, comprising political and independent membership, will also review PSNI failures to respond promptly to issues raised in relation to the work of the HET.”

Matt Baggott has apologised and said all military cases will be re-examined.

He said: “Let me say at the outset that I am sorry that HET put in place a policy that was wrong.

“HET is unique and so is the task they fulfil. There was no easy or established template to be followed. Notwithstanding this, a differential approach to military cases is wrong. I give you my assurance that this has ended.”

Matt Baggott to meet Historical Enquiries Team head
BBC News
8 July 2013

Chief Constable Matt Baggott is to meet with the head of the police’s Historical Enquiries Team (HET) to discuss a highly critical report about the team’s work.

Last week the leading oversight body for UK police said the HET treated killings carried out by the army differently to other cases.

HET has been headed up by Dave Cox, since it was formed eight years ago.

Sinn Féin has called for Mr Cox to go.

The organisation was set up to re-examine deaths during the Troubles.

It was criticised in a report by Her Majesty’s Inspectorate of Constabulary (HMIC).

It said the HET was illegally investigating deaths involving army soldiers with less rigour than cases with no state involvement.

Following the publication of the report on Wednesday, the Policing Board has said it had no confidence in the leadership of the HET.

The board said it viewed all HET military case reviews as suspended.

Mr Baggott offered a personal apology to Prof Patricia Lundy, the University of Ulster academic whose research initially raised concerns over the HET and led to the HMIC review.

The chief constable outlined a series of measures he planned to take in response to HMIC’s criticisms.

The Policing Board also announced that the recommendations made by the HMIC would be implemented by a working group made up of political representatives and independent figures.

The group will also review police “failures to respond promptly to issues raised in relation to the work of the HET”.

The group will begin its work this week and a report on progress is expected later in the year.

HMIC described the HET’s approach as “illegal and untenable”.

Mr Baggott agreed to a board request to commission the review after criticism of HET in Professor Lundy’s University of Ulster report.

The report had claimed the HET gave former soldiers preferential treatment and did not properly investigate deaths caused by the military. The HET rejected the claims.

HMIC’s report found the HET treats cases involving military differently as a matter of policy and this appeared to be based on a “misinterpretation of the law”.

It also found that the HET did not always seek verification where a potential interviewee in a state involvement case claimed to be unfit for interview due to illness.

The HET was set up in 2005 to re-examine 3,260 murders.

Dealing with the past before it deals with us

Dealing with the past before it deals with us

The Historical Enquiries Team has made itself a victim of our past – made the stick to beat its own back and made the wrong decisions when it came to reviewing conflict killings involving soldiers.

So, it must now hear the words of “no confidence”, and it is hard to see how it recovers from the report of HMIC – but we should also listen to the words of former Chief Constable Hugh Orde.

“It [the HET] was never ever the answer to the past,” he told me in an interview for the Belfast Telegraph.

“It was only ever going to be a tiny part, but there was nothing else,” he continued – “and, even now, there is not much else.”

So, the story can’t just end with the damming criticisms of double standards.

These things were being said before we read them in this latest report, and there are those who could easily say ‘I told you so’.

The challenge is what to do next and who is big enough to do it.

How do you take the past out of the hands and control of the police and intelligence services, and to use the words of Jarlath Burns, how do we deal with it before it deals with us.

Burns was member of the Eames-Bradley Consultative Group that produced a detailed blueprint back in 2009 and, today, he is arguing we need to get it back on the table.

Orde also asked: “Where is Eames-Bradley?”

Its detailed set of proposals included a Legacy Commission with Investigation and Information Recovery Units.

This was meant to be the structure within which an attempt would be made within a five-year timeframe to try to address many of the unanswered questions.

There was also a recommendation for a Reconciliation Forum, but what do we have today?

A political battle over the Maze/Long Kesh ‘shrine’, Eames-Bradley gathering dust somewhere and the HET being kicked around with calls for it to be kicked out.

Then what?

Who has the big idea – even any idea?

We all know what happened to Eames-Bradley.

It was dismissed in the panic caused by one of its recommendations that a recognition payment of £12,000 should be made to all families who lost a loved one.

“I am staggered that a report was allowed to be hijacked by one issue with everything else discarded,” Sir Hugh told the Belfast Telegraph.

“I assured Lord Eames and Denis Bradley I would be relaxed, indeed relieved, if they took the HET into a wider structure,” he continued.

“That would have increased its independence and transparency,” he said.

Eames-Bradley wanted the work of the HET to become part of the proposed Investigations Unit inside the Legacy Commission, but who even remembers that recommendation.

The proposals weren’t heard above the political shouts of shame.

So, now what?

In the here and now we have yet another mess, but also the reality spoken by Orde that: “To police the future, you have to deal with the past.”

Who wants to deal with it?

There is no sense or suggestion of political will and, almost twenty years after ceasefires, no plan, strategy or structure within which questions can be asked and answered.

In the Belfast Telegraph I wrote that the past is large in the present.

It is not yesterday or yesteryear, but today and tomorrow.

Eames-Bradley has a structure.

What it didn’t answer was who would participate and under what terms.

Before there is any Legacy Commission we need to know those things.

Then in a structured way think about what delivers the maximum amount of information and the best possible help to victims.

How is every story told and heard?

We need to understand and accept there is no such thing as one truth.

Maybe the design of such a process is beyond the capabilities of local politicians, and perhaps this will need international help.

We need also to understand that the past isn’t going to go away.

Just a few days ago families still searching for bodies that were disappeared in the 1970s and 1980s raised their voices to ask again for information.

For them there is no such thing as drawing a line. How could there be?

So, a process is needed.

It may have to happen in private, and it will have to address the question of amnesty or non-prosecution.

We need also to be realistic.

There will be no such thing as absolute truth from one side never mind all sides, and some answers being sought will hurt more than they heal.

This needs political will and international help.

In a tweet to me, Andree Murphy of the Relatives for Justice project accused the British and Irish Governments of disgracefully disengaging like neutral observers.

They were not and are not neutral observers and they have to be part of this.

For too long, the past has been a political play thing – a battleground.

That needs to change, and all the sides need to start looking for reasons to answer questions rather than excuses not to.

On the Eames-Bradley report, Andree Murphy believes: “There is much to sign up to and add to.”

In all the current fall out, let us all remember the HET was not about answering the past.

It was there because there was nothing else, and now we need something different.

Where is the big idea to deal with a troubled past?

Brian Rowan: Where is the big idea to deal with a troubled past?
The Historical Enquiries Team was set up in September 2005 to investigate more than 3,200 unsolved murders between 1968 and 1998
Belfast Telegraph
04 JULY 2013

When he was here as Chief Constable, Hugh Orde’s idea of an Historical Enquiries Team was not meant as some great answer to the past.

Doing something after decades of conflict, and doing it because there was no other big or small idea.

“It (the HET) was never ever the answer to the past,” Sir Hugh said last night.

“It was only ever going to be a tiny part, but there was nothing else,” he continued, “and, even now, there is not much else.”

Then he asked the question: “Where is Eames-Bradley?”

He means the report published in 2009 containing a detailed set of proposals; a blueprint including a Legacy Commission with investigation and information recovery units.

It was meant to be within this structure that an attempt would be made in a much broader context to try to address many of the unanswered questions.

There was also a recommendation for a Reconciliation Forum.

But the report was dismissed in a furious row over one proposal to make a recognition payment of £12,000 to all families who lost a loved one.

“I am staggered that a report was allowed to be hijacked by one issue with everything else discarded,” Sir Hugh told the Belfast Telegraph.

“I assured Lord Eames and Denis Bradley I would be relaxed, indeed relieved, if they took the Historical Enquiries Team into a wider structure,” Sir Hugh continued.

“That would have increased its independence and transparency.”

In the thinking of the Eames-Bradley report, the work of the HET would have become part of the proposed Investigations Unit inside the suggested Legacy Commission.

But the document and all its suggestions have vanished, gathering dust on some shelf and, more than four years later, there is still no big idea.

“To police the future, you have to deal with the past,” Sir Hugh said.

But almost 20 years after the 1994 ceasefires, there is no plan – no strategy or structure within which questions can be asked and answered.

The past is still playing out on a political battlefield – the peace building and conflict resolution centre at Maze/Long Kesh the stuff of headlines and news almost every day.

Will it or won’t it become a shrine to the 1981 hunger strikers?

As that argument continues the story of the past is large in the present.

It is not yesterday or yesteryear, but today and tomorrow.

So, the challenge is to step off the battlefield, and to think of a structure that can deliver the maximum amount of information and the best possible help to victims.

Within that structure there has to be room for every story to be told and heard.

There is no such thing as one truth.

Maybe the design of such a process is beyond the capabilities of local politicians, and perhaps this will need international help.

But the past isn’t going to go away.

President Obama’s visit to North comes at a critical time for peace process

President Obama’s visit to North comes at a critical time for peace process
Hopes that he can help stop slow slide into the dark side
Periscope by Niall O’Dowd
Irish Central
Monday, June 17, 2013

Don’t look now but President Obama’s trip to Northern Ireland is coming at a critical time.

Contrary to some opinion it is a vital visit.

His speech at Waterfront Hall was less significant for what he said rather than the fact that he made it.

When the President of the United States pays attention to an issue then everyone else does too.

It is American soft power at its best and it has always worked in Northern Ireland.

It was no coincidence that British leader David Cameron met Northern Ireland’s two leaders, Peter Robinson and Martin McGuinness, last week and announced a major economic package.

In addition, he announced an investment conference for October aimed at bringing new industry to Northern Ireland.

The announcement came after strong pleading from the North that the gains of the peace process were endangered if there was not a significant increase in economic activity leading to jobs and opportunity.

It is doubtful that the new initiatives would have happened if the United States president was not on his way.

Northern Ireland has languished out of the headlines and a gradual erosion of the peace process has taken place.

Most serious was the issue of securocrats attempting to undermine the peace agenda.

Last month Irishman John Downey was arrested in Gatwick Airport and charged with the Hyde Park bombings and death of four soldiers in 1982.

Deeply significant was the fact that Downey had been assured in a letter that following the peace process, he was free to come and go in the general amnesty that prevailed.

There are many horrific and unsolved murders from all sides during The Troubles. Clearly there are groups within the British establishment, given the Boston College subpoenas and now John Downey who want to start the war all over again.

That is why the visit of President Obama is so vital.

Coverage of Northern Ireland exposes these latest negative developments and also forces politicians there on all sides to make greater efforts to reach agreement on issues.

It was thus during President Clinton’s time when many major developments occurred in the arc of a visit by the U.S. president. George Bush, in fairness, also helped achieve breakthroughs.

Now it is Obama’s turn and his visit is a critical moment in cementing a peace that has looked even more uneasy in recent times.

News of Interest: Bias’ claim over killings probe

BCSN  Comment: Who Guards the Guards?

4 former RUC Special Branch members and a former RUC intelligence officer chosen by PSNI Chief Constable to prepare sensitive Shoot-to-Kill Documents; review team members served with witnesses, with one team member having served with up to 52 potential inquest witnesses. Ministry of Defence resists family of victims’ requests for military advisers who sat in on police interviews to be called as witnesses. 

Previously, the Public Records Office of Northern Ireland, acting on the advice of the PSNI’s Historical Enquries Team, refused to allow access to public records asked for in a Freedom of Information request made on behalf of families of men shot by loyalists.

This is the same PSNI who are abusing the MLAT procedure to demand access to the Boston College Oral History archives. Why is the US Department of Justice and Obama Administration facilitating this?

Further Reading

‘Bias’ claim over killings probe
Belfast Telegraph
31 MAY 2013

An inquiry is looking into six alleged shoot-to-kill incidents

A former police officer selected to trawl through top-secret information on some of Northern Ireland’s most controversial killings served with 52 potential inquest witnesses, it has been revealed in court.

He is part of a team made up of four former RUC Special Branch members and an ex-RUC intelligence officer chosen by the chief constable to prepare sensitive documents relating to six alleged shoot-to-kill incidents involving the security forces more than 30 years ago. He has been charged with reading and redacting information from classified material due to be disclosed to the families of those shot dead.

A preliminary hearing at Belfast’s Old Town Hall also heard that two other members of the research team served with 10 potential witnesses; another worked alongside 21 potential witnesses; and a fifth knew one potential witness.

Barrister Karen Quinlivan QC, who is representing relatives of those killed, described it as “breathtaking” that police were investigating police. “They served alongside each other for years and presumably had confidence in their abilities. This is not only institutional bias but actual bias,” she said.

Ms Quinlivan said ongoing problems with disclosure meant the process had been “held up” and “dragged out” beyond expectation. She also claimed the families had very little confidence in the disclosure process. “We remain extremely concerned about the personalities involved in this case,” added the lawyer.

Barrister Fiona Doherty, who is also acting for some of the next of kin, raised concerns around delays with disclosure. “This is a serious issue. It is an issue that is going to have to be dealt with sooner rather than later,” she said.

The case involves six people shot dead by the security forces during the 1980s amid claims there was a deliberate intention to kill them. IRA men Sean Burns, Eugene Toman and Gervaise McKerr were killed near Lurgan, Co Armagh, in November 1982.

Catholic teenager Michael Tighe was shot dead by police at a hay shed near Craigavon, Co Armagh, in November 1982 and suspected INLA men Roddy Carroll and Seamus Grew were fatally wounded near Armagh in December of the same year.

Tony McGleenan QC, barrister for the PSNI, described the scale of the disclosure as vast. He said up to 82 boxes of material containing tens of thousands of pages had to be considered by counsel, the chief constable and the minister for justice before being handed to the coroner for consideration of relevance. The next preliminary hearing is due to take place in July.

An investigation into whether police set out to kill was carried out in the years after the incidents by former Greater Manchester Police deputy chief constable John Stalker and Sir Colin Sampson of West Yorkshire Police. The Stalker and Sampson reports were long classified top secret but the Police Service of Northern Ireland (PSNI) finally handed over edited versions to the coroner in 2010 after a lengthy legal battle. The reports were then passed to lawyers for the families.

Advisers plea over 1984 shootings
Belfast Telegraph
31 MAY 2013

Attorney General John Larkin ordered a new inquest into the deaths of two suspected IRA men almost 30 years ago

Military advisers who sat in on police interviews with SAS soldiers involved in the ambush and killing of two suspected IRA men almost 30 years ago could be called to give evidence at their inquests.

Daniel Doherty, 23, and William Fleming, 19, were shot dead in the grounds of the Gransha Hospital in Londonderry in December 1984. It was alleged that the pair, who were both from the city, were planning to carry out an attack on an off-duty Ulster Defence Regiment soldier when the SAS opened fire.

An original inquest was held two years after the shootings but in 2010 Northern Ireland’s Attorney General John Larkin ordered another hearing after finding that police documents had been withheld from the coroner at the time.

At a preliminary hearing in Belfast’s Old Town Hall, lawyers representing the families of the two men requested the identification of Army legal advisers or senior soldiers who routinely accompanied the rank and file during police interviews.

“The soldier or soldiers who attended interviews should be identified – given a cipher – and should make a statement on their role,” said barrister Karen Quinlivan QC.

She said there were concerns about an alleged military policy which directed soldiers to only provide the minimum amount of information required for the police investigation. Ms Quinlivan said it was also important to know whether the advisers involved in this case had attended police interviews relating to other lethal force deaths.

“There are broad issues. Soldiers were engaged in lethal force and the state – Army legal services and the RUC (Royal Ulster Constabulary) – operated to ensure that they were not held accountable,” she said.

There were also requests for military intelligence files on the IRA suspects to be handed over to their families’ legal teams. “We know that there was intelligence in advance, it is obviously relevant to the circumstances. The question is whether it has been used as a shoot-to-kill policy,” said Ms Quinlivan.

Peter Coll, acting for the Ministry of Defence, claimed the families’ lawyers were embarking on a “fishing expedition” and questioned the relevance of advisers’ roles in other lethal force incidents. “This is putting the cart before the horse. Particularly, we do not know if military advisers were involved,” he said.

Fiona Doherty, barrister for the Coroners Service, said anything which could have affected the quality of evidence gathered at the time of the killings would be relevant to the inquest.

Further Reading


News of Interest: DPP issues ‘Call to tackle historic cases issue’

Call to tackle historic cases issue
Barra McGrory QC urged politicians to decide whether to try and prosecute historic cases or to forego investigations to ’embed’ the peace process
Belfast Telegraph
21 MAY 2013

Political uncertainty over dealing with Northern Ireland’s troubled past needs to be addressed, the Director of Public Prosecutions (DPP) has said.

With more than 3,500 deaths and countless more injured during the conflict, politicians should decide whether to attempt to prosecute historic cases or to forego investigations to “embed” the peace process, Barra McGrory QC added.

He highlighted difficulties including impaired memories, dead witnesses or perpetrators and limitations using modern evidence-gathering methods like DNA and said his Public Prosecution Service (PPS) would need to be properly resourced for any large scale investigation.

But he said he would continue to prosecute where the evidence existed to deliver true justice.

“Perhaps the time has come when our society should reflect on how we are going to address these issues because we appear to be drifting along at the moment in a sort of vacuum of some uncertainty,” he told a transitional justice conference in Belfast.

“As the Director of Public Prosecutions I don’t think it is my role to deny any victim of an injustice the delivery of true justice to that person or his or her family. As the DPP that is what I must strive to do in the current circumstances.”

Sinn Fein has called for a truth and reconciliation commission to consider the fall out from Northern Ireland’s 30 years of violence and wants the state to participate after its forces were responsible for some deaths. Senior MLA Mitchel McLaughlin recently proposed separating truth from reconciliation until that is done. Democratic Unionists believe victims should not be denied the right to justice.

Mr McGrory said if the prosecution service was going to be expected to deliver prosecutions then it needs to be properly resourced.

“I think society has got to make a choice. Either it decides now to go down the route, the very difficult route, of determining that we are going to forego the investigation and prosecution of the past in favour of embedding the political institutions or the peace process, or between that and deciding whether or not the peace process is best served by continuing to prosecute the past,” he added.

“If it is going to be the latter then I think there needs to be a very clear investigative structure established with very clear lines of definition and with significant resources and if that is going to be done it needs to have terms of reference which will cover all criminality from all sides. The prosecutorial aspect of this will have to be significantly resourced as well. That has not yet happened.”

News of Interest: Amnesty International says Northern Ireland’s authorities have failed to deal with legacy of the past

Amnesty International: New approach needed in the North
Press Release
Sunday, May 05, 2013

The authorities in the North have failed to deal with the legacy of the past, human rights campaigners claimed.

Amnesty International said it would be raising the concerns when it gives evidence to the United Nation’s committee against torture in Geneva this week.

The organisation claimed existing mechanisms such as the Historical Enquiries Team (HET), the Police Ombudsman and ongoing legacy inquests had proved inadequate in securing accountability for alleged past human rights violations and abuses.

“The piecemeal nature of existing mechanisms and their narrow remits means that they are simply not able to secure full accountability for past human rights abuses.

“We are bringing our concerns to the attention of the United Nations in the hope that the international community will urge the UK authorities to ensure a new approach is found to address the outstanding abuses of Northern Ireland’s past,” said Patrick Corrigan, Amnesty’s Northern Ireland programme director.

Part of the committee’s remit is the investigation into deaths by lethal force that occurred during the Northern Ireland’s 40-year conflict.

UK government representatives will be quizzed by the UN scrutiny committee on Tuesday.

Mr Corrigan said the HET and Police Ombudsman were delivering for some families, but were failing to deliver fully independent, effective, prompt and thorough investigations for others.

“A new, comprehensive process is crucial to ensure accountability for those abuses, not just to help individual victims and their families, but to help society as a whole to build a shared future on firm foundations,” he added.

As part of its research Amnesty said it had spoken to victims and their families over the past 12 months. The organisation said it would publish the findings before the end of the year.