Is a little known legal process set to play a key role in legacy cases?

NORTHERN Ireland’s legal system continues to struggle with how it should deal with the hundreds of unsolved Troubles related murders.

In recent years a number of republicans, loyalists and former soldiers have all been charged with historic killings and in April The Detail reported that the PSNI continues to investigate 1,186 unsolved Troubles related deaths.

PSNI Chief Constable George Hamilton has previously stated that investigating the past is placing increased financial pressures on existing police resources. And last month 150 Conservative politicians called on Prime Minister Theresa May to abandon investigations into killings committed by members of the security forces during the Troubles.

In many of these court cases the legal process has been complicated by the advanced ages of some of those on trial and the fact that some of the accused have been found to be suffering from serious ill health.

It is understood an obscure legal procedure could now play an increased role in how the justice system here deals with the past.

Northern Ireland Court Service (NICS) statistics obtained by The Detail reveal that between 2013 and 2017 a total of 46 defendants faced a Trial of the Facts hearing after they were deemed medically unfit to face a normal criminal trial.

The offences included, murder, rape, theft, indecent assault and aggravated vehicle taking. In 36 cases the accused was found to have committed at least one offence.

The Trial of the Facts process is a little known and rarely initiated legal process which can only be used if a court determines that a defendant is unfit to stand trial because of serious ill health. The process involves a public hearing to determine whether an accused committed the alleged offence or offences.

However, unlike a normal criminal trial, a jury cannot find a defendant guilty of any offence. Even if an accused is found to have committed a serious offence, including murder, they cannot be sent to prison. Instead treatment orders can be imposed.

Veteran Belfast republican Ivor Bell is due to be told in coming weeks if he will face a Trial of the Facts hearing. The 81-year-old is charged with soliciting the murder of mother-of-10 Jean McConville in 1972.

Mr Bell's lawyers have applied to have the case against him stopped stating that he is medically unfit to stand any trial.

The Public Prosecution Service (PPS) has argued that it is in the public interest that a Trial of the Facts hearing should take place.

In 2012 the Trial of the Facts process was used to determine if former Labour MP Margaret Moran had committed £53,000 expenses fraud. Ms Moran had been judged to be unfit to face a normal criminal trial as she was suffering from a ‘severe depressive disorder’.

After a jury found that she had committed the expenses fraud she was placed under a supervision order for two years.

In his closing comments trial judge, Mr Justice Saunders said: "There will inevitably be feelings among some that Mrs Moran has got away with it. What the court has done and has to do is to act in accordance with the law of the land and on the basis of the evidence that it hears. The findings of the court were not convictions.”

CAUTIOUS SUPPORT TO TRIAL OF THE FACTS

The possibility that the Trial of the Facts process could start to play an important role in so called legacy cases is being closely observed by victims and legal experts with some concerned the process could allow defendants to escape prison while others believe it has the potential to provide proper answers to the families involved, many who have been waiting for decades for justice.

Wave Trauma Centre co-ordinator Alan McBride, whose wife Sharon and father-in-law John Frizzell were killed in the 1993 IRA Shankill Bomb, said it was important for victims to have access to the facts surrounding the death of their loved ones.

“Wave supports processes that provide answers for those bereaved and injured, this includes a Trial of the Facts,” he said. “It is important for victims and survivors and should be supported.”

Former victims’ commissioner Patricia MacBride believes that the Trial of the Facts process could potentially play an important part in some so-called legacy trials in the future.

Ms MacBride has prevously spoken about how her father Frank died from injuries 17 months after being shot and seriously wounded in a loyalist gun attack in 1972 while her brother Antoine was killed by the SAS during a gun battle with the IRA in December 1984.

“It's quite possible that we could see the process of Trial of the Facts becoming more widely used as the people accused in legacy cases age and fall into ill-health,” she said.

However, Ms MacBride cautioned that any potential benefit for the process to be used in such cases presented a “double edged sword” for victims.

“On one hand, it can mean that a judicial proceeding takes place, evidence is presented by both sides and a finding of fact made as to whether the person accused committed the acts.

“That has the potential to provide a measure of acknowledgement and reparation to victims.”

However, Ms MacBride said the legal limitations of the process means that it may not fully satisfy the needs of all victims.

“The fact that there is no opportunity to cross-examine the accused reduces the likelihood of any meaningful information recovery around the wider context.

“As well as that, the absence of any real sanction, should the accused be found to have committed the acts, has the potential to cause upset.”

She said that while the process was an important legal tool to ensure that so called legacy cases were not abandoned due to the ill health of defendants, it should be used sparingly and with caution.

“On balance, this mechanism can ensure that no one suspected of conflict-related offences can evade responsibility simply because of health issues.

“Decisions to prosecute should be based only on the evidence and not the ability of the accused to participate in proceedings.”

Alan Brecknell was just seven years old when his father Trevor was murdered in a loyalist gun and bomb attack in 1975 as he was celebrating the birth of his daughter.

Mr Brecknell said: “I personally don’t want to see anyone go on trial in relation to my father’s killing.

“However, I appreciate and accept that others will want to see people go through the court system and for families to receive some form of legal justice.

“I feel it is more important to get a level of truth and acknowledgment in relation to all deaths and injuries and to date the criminal justice system hasn’t in my opinion delivered for people.”

Mr Brecknell said that while the Trial of the Facts process was only likely to ever be used in a small number of cases, it should nonetheless be available to help victims determine the facts of the circumstances surrounding the death of their loved ones.

“I feel all victims and survivors should have the opportunity to pursue every available opportunity to seek truth and justice.

“It should always be remembered that the trial will be held to today’s standards of proof and that if the person is acquitted that is the end of it and they are not guilty, no matter what individual families and society believe.”

ACADEMIC EXPRESSES CONCERNS

Ronnie Mackay is Professor of Criminal Policy and Mental Health at the De Montfort Law School in Leicester.

The law academic says that annually in England and Wales up to 100 defendants in serious criminal trials are judged unfit to plead. In such cases a Trial of the Facts hearing must then take place before a court can impose any judgment on a defendant.

“That’s so the prosecution has to prove its case,” the senior law academic explains.

“This used not to be the case at all. Before that there was no requirement for the prosecution to prove anything.

“As the law then stood, if a person was found unfit to plead there was only one form of disposal and that meant he or she was sent to hospital indefinitely.

“The defendant would be sent to hospital (often secure unit) even though the prosecution hadn’t proved that he or she had committed the criminal act.”

However, the De Montfort academic says that even with the introduction of this legal safeguard, serious concerns still remain with the process.

While prosecutors in a normal criminal trial have to prove that a defendant committed all the elements of a crime, in a Trial of the Facts case they do not have to prove that the accused was mentally aware of his or her actions – a key requirement ordinarily needed to secure any successful prosecution of a serious crime.

“The problem with the Trial of the Facts is that the statute simply says that the prosecution must prove that the accused did the act or made the omission charged.

“All they have to prove is the physical ingredients of the crime. They don’t have to prove the mental element of the offence.

“If you take (a charge of) murder, the charge requires not just the physical ingredient of the actual killing, whatever form it might have taken, but it also includes the mental ingredient of intent to kill or to cause grievous bodily harm.

“The prosecution doesn’t have to prove that (in a Trial of the Facts process).”

The PPS' view

While a Trial of the Facts hearing may not be appropriate for use in all legacy cases, The Detail asked the Public Prosecution Service (PPS) if it viewed the process as a potential way forward in specific legacy cases when a defendant is judged medically unfit to stand trial.

In a statement, the PPS replied: “As set out in Article 49A of the Mental Health (Northern Ireland) Order 1986, if a court determines that an accused is unfit to stand trial, then a criminal trial cannot proceed, rather a hearing in accordance with Article 49A takes place (often referred to as a “Trial of the Facts”).

“The provisions of Article 49A apply in respect of any accused who has been found by a court to be medically unfit, irrespective of the offence, and it would not be appropriate for the PPS to provide further comment on the use of this provision.”

We asked the PPS what legal implications a Trial of the Facts process could have on any independent legal proceedings which a defendant may subsequently face in a civil case taken by victims. It said this was not a matter it could comment on.

We also asked if there are any major cost implications for Northern Ireland’s legal system if the Trial of the Facts process does see an increased use in future legacy cases. Again, the PPS said this was not a matter it could comment on.

• Click here to read more on how the Trial of the Facts process works.