In the Irish News 7 March edition solicitor Darragh Mackin of Phoenix Law called for pending trials against British soldiers to be heard by a judge alone, i.e a non-jury trial.
Let me from the outset make clear that I make absolutely no professional or indeed personal criticism of Mr Mackin’s advocacy on behalf of his clients, in this case the family of Aidan McAnespie. I believe the comments made in the Irish News were not driven by any personal political agenda, but rather a desire to provide the best possible representation for his clients and indeed offer one particular legal viewpoint on the ongoing legacy process.
Indeed on the point of law Mr Mackin has to his advantage the judgement of Sir John Gillen in an appeal by former British soldier Dennis Hutchings against the decision by the Director of Public Prosecutions (DPP) to issue a non-jury certificate for his scheduled trial. However lawyers for Mr Hutching’s have won leave to appeal that decision to the Supreme Court and the case is listed to be heard on 14 March 2019 in London.
Before we get to the point of non-jury trials, Mr Mackin is right on one fundamental point when he says “any chance of a jury being objective is now gone”. These comments were in relation to the contribution made by the Secretary of State in Parliament on 6 March 2019, however if the same principle is to be applied then the relentlessly one-sided legacy narrative, some unbalanced media coverage and comments of elected representatives in Northern Ireland must equally lead one to reach the same conclusion, namely that “any chance of a jury being objective is now gone”. So, albeit for differing reasons, I agree with Mr Mackin on that point.
It is at the next logical point in the debate where our paths diverge. If an objective jury trial is no longer viable, then the only possible way to have soldiers stand trial is via a non-jury trial. Those who oppose elderly soldiers standing trial will therefore naturally travel along the path which argues that a non-jury trial is inappropriate, whilst those who do want to see elderly soldiers face a criminal trial will travel with the argument that a non-jury trial is appropriate.
In order for a non-jury trial in Northern Ireland there is a two-stage test which must be applied by the DPP who must:
- Suspect that one (or more) of the four conditions is met; and
- Be satisfied that there is a risk that the administration of justice might be impaired if a jury trial were to be held.
The four conditions, one of which must be satisfied, are as follows;
The defendant is, or is an associate of, a person who: (a) is a member of a proscribed organisation, or (b) has at any time been a member of an organisation that was, at that time, a proscribed organisation
That (a) the offence or any of the offences was committed on behalf of a proscribed organisation, or (b) a proscribed organisation was otherwise involved with, or assisted in, the carrying out of the offence or any of the offences
An attempt has been made to prejudice the investigation or prosecution of the offence or any of the offences and- (a) the attempt was made on behalf of a proscribed organisation, or (b) a proscribed organisation was otherwise involved with, or assisted in, the attempt.
The offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons.
It is clear that before the second stage of the test is applied that the only relevant condition that could possibly apply is condition 4.
Therefore it is not hyperbolic to say that the entire legacy process, in terms of criminal prosecutions of former members of the security forces anyhow, rests solely on the Supreme Court’s interpretation of the construction of condition 4 in section 1 of the Justice and Security (Northern Ireland) Act 2007.
This assessment will largely hinge upon whether section 1 of the 2007 Act should be narrowly or broadly interpreted. It seems to me grossly unfair that a broad interpretation should be applied given one of the fundamental rights of British justice, the right to be tried by a jury of your peers, is suffering interference by virtue of the issuing of a non-jury certificate.
However, if we were for one moment to go with the assertions of Mr Mackin that a non-jury trial is appropriate, then even the otherwise helpful (from Mr Mackin’s point of view) Hutchings judgement by Sir John Gillen makes clear that condition 4 cannot be so broadly interpreted that it would encompass every incident involving the British Army. What therefore is Mr Mackin’s proposed remedy in circumstances whereby even a broad interpretation of condition 4 does not encompass a particular incident involving a British soldier? It cannot be that there should be a jury trial, because the argument that the chance of finding an objective jury is now gone in relation to trials involving members of the British Army has already been advanced as a cornerstone of the argument for non-jury trials. And if even a broad interpretation of condition 4 does not bring a particular incident within its remit, then surely the only logical outcome is that there should simply be no trials at all?
Having firmly committed to the argument that no jury could possibly be objective, there is a lot riding on the Supreme Court’s decision on the construction of condition 4 of section 1 of the Justice and Security (Northern Ireland) Act 2007 for Mr Mackin and those who would agree with his arguments. If the Supreme Court were to reverse the judgement of Lord Justice Gillen, this would place Mr Mackin’s argument in a bit of a bind.
In relation to the wider points on legacy I would be interested, given his role representing a large number of families who had loved ones killed by security forces in various circumstances, in hearing Mr Mackin’s viewpoint on what he feels may be solutions to the ongoing legacy impasse in terms of the criminal justice system and how such solutions could provide a fair, balanced and equitable way forward?
*Unionist Voice is an open platform for robust debates and critical analysis of issues that affect our community. An invite has been extended to Mr Mackin to respond to this piece setting out his alternative viewpoint.