Transparency key to supergrass success

By Mary O’Rawe

The legislative criteria devised under SOCPA (Serious Organised Crime and Police Act) in some ways represent the supergrass system of the 1980s come full circle.

Supergrass trials gained notoriety in the early 1980s in Northern Ireland, having been used to a lesser extent in England in the 1970s. In Northern Ireland, in the 1980s, hundreds of people were convicted on the word of around 27 supergrasses. On one person’s testimony, tens of people could be convicted at a swoop.

The leading human rights lawyer Lord Gifford, (who wrote a report on the supergrass system), speaks of the unworthy spectacle of ‘herding people to justice’ and others expressed disquiet at the objectionable morality in allowing a person of equal or greater guilt to escape prosecution or the sentence normally due, by the simple device of turning Queen’s evidence.

In reality, the device is not simple and many lives have been put in longstanding jeopardy as a result of such practices. The ethics of the situation are not black and white by any means and run far beyond the situation of an individual informer and any number of accused.

In one of the longest running trials in UK history in 1983, 22 convicted IRA members were handed down prison sentences totalling 4000 years. The vast majority of these convictions and those resulting from other supergrass trials were overturned on appeal.

These convictions weren’t overturned on a whim. There were fundamental flaws at the heart of these trials in terms of the motivation behind and reliability of the evidence given.

How such sources were handled and what they were allowed to do or what they were promised by their handlers prior to agreeing to give evidence against their alleged comrades in arms and their psychological state pre, during and post such events is still shrouded in secrecy, though reports such as PONI’s Operation Ballast do shed chinks of very unhealthy light on such matters and beg further questions.

Particular allegations about police behaviour were made by many supergrasses retracted before trials were concluded.

Allegations abounded about inducements and the use of undue pressure by the police to turn informer.

Rumours of large sums of money being handed over were never totally refuted.

Evidence which did make it as far as trial was, on the whole, problematic at very many levels and the whole system eventually broke down in a shambolic mess criticised by lawyers and judiciary alike. It is not regarded as the finest hour of the Northern Irish legal system.

The question then becomes, given the passage of time and the reality of a different political context – have the problems with the use of this type of evidence simply gone away or been appropriately addressed?

Society still clearly has a problem with seeming untouchables within the criminal underworld. Admissions and forensic evidence are rarely going to be viable means of dealing with these people. Should the system not make use of whatever information it can get hold of – particularly if it seems to be coming from people with a claimed personal knowledge of how organised criminality works in a given context and the potential to finger those at the heart of things?

Given there now exists a clear statutory basis for the utilisation of evidence from alleged former associates and this in the context of the human rights protections ushered by the 1998 Human Rights Act – the new, improved system might be categorised more in terms of supergrass lite than déjà-vu.

Safeguards and strictures are in place. Money is not to change hands (other than by way of what might be deemed necessary to afford full protection to those assisting the crown in dangerous and murky situations). Improved disclosure provisions should result in better access to information in terms of the context and history of any informant giving evidence for the crown etc.

However, while new improved safeguards may be pointed to as the order of the day at a formal level, the extent to which the lessons of the previous incarnation of supergrass trials in Northern Ireland have been fully taken on board is open to debate.

Many of the same concerns that stalked and ultimately resulted in the shelving of the use of such evidence in the early 80s, still attend the current process. Questions as to reliability, motivation, the possibility of conviction without any further corroboration are all still begged as regards the new regime.

The human rights pendulum has also swung more than one way since these kinds of trials had their heyday in Northern Irish Courts. Testimony from those turning Queen’s evidence will now be used in a context where adverse inferences attend an accused’s failure to respond to police questioning or to give evidence at trial – putting further pressure on the already strained concept of fair trial in these situations.

A further Northern Ireland specific dimension is that these cases will be heard before a judge sitting alone and not with a jury, as is the case in England and Wales.

There seems no tenable reason given that Northern Ireland is not under a public emergency threatening the life of the nation that the system should operate differentially here as regards the use of jury trials. The UN Human Rights Committee has a number of times expressed its concern in this regard.

One practical result of cases being heard before one judge sitting alone is that the warning which would otherwise be given to a jury about the dangers of convicting on the word of an accomplice becomes so much mental jiggery pokery when it is simply a case of a judges reminding themselves to heed their own warnings when they have already formed a view as to guilt or innocence.

The question of justice not only being done but being seen to be done is also important in this context. The peace process is still fairly fragile in terms of garnering respect for the rule of law from previously alienated communities.

A back to the future approach in terms of reintroducing supergrass hearings in this manner and at this time has the potential to sow dragons’ teeth, particularly if the same sorts of issues come to the surface as dogged the last murky foray into this area.

The SOCPA framework represents both a rewriting of the rulebook on the use of supergrasses as well as a pragmatic recognition of the need to return to tried and trusted methods albeit based on not entirely desirable methodology to achieve a desired result – that law has decided compromises are required to enhance the chances of reaching some of those otherwise too fully protected by the secrecy and impenetrability of criminal organisations. The problem is that these methods have been tried in the past and, by and large, found not to be trusted.

In practice, the charge has been levelled that the trials themselves operated both as show trials and as a smokescreen.

For some, the ultimate failure to achieve or sustain a conviction was simply the trade off for the fact that many of those deemed a danger to the community were kept off the streets during a lengthy remand period and for perhaps a further couple of years till any appeal was heard.

To this extent the system operated as a less obvious form of internment by the back door – the next best thing where internment itself had become unpracticable.

The propaganda value of such strategies for those of a paramilitary persuasion should not be discounted – and is something to be borne in mind at this current juncture in our history.

From this point of view, any perceived return to these kinds of practices may appear to deliver short term benefits in terms of locking people up -but at what cost for faith in the administration of justice as a whole – particularly if the trials fail to produce convictions or these convictions are overturned on appeal or worse again, the convictions are flawed and not reversed.

The transparency of the process going forward is going to be key – However, by its very nature, the attendant danger to witnesses and their families is cause for levels of secrecy that will not scotch allegations of plus ca change.

There are also other reforms that could assist both in terms of expectations around the need for corroboration and the mechanics of having these cases heard otherwise than by one judge sitting alone.

Much of this is in the optics. Unfortunately, the optics in such cases tend, of necessity, for good reasons as well as bad, to be very murky. The problem is there is little opportunity for the public to be given the wherewithal to discern which is which.

Mary O’Rawe is a senior lecturer at the University of Ulster’s School of Law. Her research institutes include policing and truth recovery.