Prosecuting the Past: Cold War Conflict

By AM Wednesday, February 26, 2014

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Guest writer Carrie Twomey on the selective prosecution of the past. Is civil action the next stop for Hyde Park? The involvement of former RUC and PSNI Chief Superintendent Norman Baxter in the Omagh, McConville, & Downey cases raise questions about how the peace process is being undermined by those intent on continuing the conflict.

Any student of conflict resolution who is using the Northern Irish peace process as a model must now know fingers were crossed behind all backs throughout. One decade was spent fudging peace, the next is spent in a cold war policing the past for conflict recrimination.

Today, in the wake of the Downey judgement, we are treated to the ridiculous spectacle of the same fingers-crossed politicians who negotiated the process pretending they had no idea what was negotiated. The whole pantomime is a farce, made all the more ridiculous by the Cameron government's blasé blundering unravelling the peace via pure bigoted British ignorant idiocy, taken advantage of by home-grown bigots with axes to grind: the history of Ireland on endless repeat.

It is this hands-off approach of Cameron's that has allowed the strategy of a cold war fought via the past to expand: glimpsed like the tip of an iceberg in the hard-to-believe incompetence of the US-UK MLAT subpoenas of the Boston College archive and their predictable results. The Downey case exposes more of what's lurking below the surface.

Circumnavigating the Boundaries of Justice

When justice was not easily gained via criminal prosecutions in the Omagh bombing case, the legal strategy of launching civil action was pursued. This strategy uses the vehicle of criminal prosecutions — which have little to no chance of either a guilty verdict or a sentence longer than 2 years for anything pre-1998 —  to gather evidence, not for successful prosecution, but for future civil action.

As we saw in the Boston College subpoena case, the seeking of the archives was never about securing convictions:

[I]t has now emerged that, even if the tapes do not provide the proof beyond reasonable doubt required in a criminal case, they could be used in a civil action where proof is only on the balance of probabilities.

That is what happened in the case of the 1998 Omagh bombing.

In June 2009, some of the families of the 29 dead won a £1.6m civil action against four suspects who had not been convicted.

They did so using police evidence which was subpoenaed by their lawyers. Norman Baxter, a former RUC and PSNI Chief Superintendent who investigated the Omagh bombing, said the same thing was likely to happen again.

“Before the information can be used in a civil action the opportunities for criminal prosecution must be exhausted.” [emphasis added]

In reading reports about John Downey's case, it was quite interesting to see Norman Baxter as the leader of Operation Rapid, the PSNI squad tasked with looking at the strength of cases against OTRs. In Downey's case,

In a report, Acting Det Chief Insp Neal Graham told his superior, Det Chief Supt Howard [sic] Baxter, that Mr Downey was not wanted by PSNI, but further checks should be made as to whether Scotland Yard still wanted him.

But when Det Chief Supt Baxter reported to his superior, Assistant Chief Constable Peter Sheridan, three days later he said only that Mr Downey should be informed he was not wanted by PSNI and made no reference to the fact that he was still wanted over the Hyde Park atrocity.

When asked about the omission, on behalf of the court earlier this year, Det Chief Supt Baxter said only that there was no statutory requirement to supply further information beyond whether he was wanted by PSNI and Mr Downey was not considered to be on the run because he was not a resident of Northern Ireland. — Hyde Park IRA bombing: prosecution of suspect could have threatened peace process

Operation Rapid was one of Norman Baxter's responsibilities before he retired from the PSNI.

Revisiting Norman Baxter's 2009 testimony to the Northern Ireland Affairs Committee hearing on the Omagh Bomb, we see a man unhappy with political 'tampering' of policing:

Q381 Lady Hermon: Am I not right, Mr Baxter and Mr McWilliams, that there is an absolutely fundamental principle within policing in Northern Ireland and that is operational independence. Could you just reconcile to me the evidence that you have given that you believe that there was a political policy in Northern Ireland dating back from 1994, I think you said, not just 1998, not just the date of the Agreement, are you really saying to me that the RUC were influenced by that policy made by politicians? Surely to goodness the RUC and the chief constables that they had maintained operational independence?

Mr Baxter: You see, you would have to be so naive to think that the Secretary of State, and his predecessors, sits in Stormont Castle and does not tamper with policing.

Q382 Lady Hermon: Tamper with policing?

Mr Baxter: Yes, I would use the word "tamper". One of my responsibilities before I retired was to conduct a review of on-the-runs, that is persons who are outside the jurisdiction. I can assure the Committee that there was an extremely unhealthy interest by officials in the Northern Ireland Office about prioritising individuals who were on the run and about ensuring that they were cleared to return to the North. That was done through—

Q383 Lady Hermon: Yes, but with the greatest respect, Mr Baxter, those were on-the-runs. We are talking here about—and again I will use the term—the mass murder of 29 people plus two unborn children, and are you really saying to us that despite all of those deaths, that somehow within the RUC they were influenced by politicians in investigating the bomb?

Mr Baxter: I am saying that you would have to be naive to believe that the Secretary of State and his officials, or her officials in the past, did not directly intervene in policing. I can give the Committee one example where Dr Mowlam rang a duty inspector when I was on duty—

Q384 Mrs Robinson: And let a certain person go free.

Mr Baxter: When Martin McGuinness was stopped, he telephoned her and she rang the police to get him released. I think you would be extremely naive to think that these things do not go on. I am not saying it is, "Chief constable, you have to do this," but it is a cultural or a nurturing sort of relationship so that policy is delivered in policing.

It seems Baxter has come round to the position — at least in relation to political tampering with policing — that what's good for the goose is good for the gander.

What exactly is Baxter's role in the last few years' push to prosecute the past, and where that fails, to push for civil suits? How in bed is the Cameron government with the Baxterites of Northern Ireland?

We know that Baxter was instrumental in the pursuit of Gerry Adams using the McConville family, and that resulted in the subpoenas of the Boston College archives.

Eamonn McCann took a look at Baxter's role in 'Getting Gerry Adams', and the cottage industry of former security force members — specifically ex RUC and Special Branch — who parlay their experience in Northern Ireland into lucrative government contracts. Baxter's subcontracting outfit is made up of a number of former RUC and PSNI officers, some of whom were also, coincidently enough, previously part of the HET.

Baxter's New Century subcontracting CEO, Tim Collins, was being wooed by the Tories for a role as a Police and Crime Commissioner (PCC) candidate around the same time of the Serious Crime investigation that led to the US-UK MLAT request. It was claimed Cameron is 'a known admirer' of Collins; throughout 2010-2011 the Tories were looking for all the backing they could get for their Police Reform Act.

Protocol dictates that MLAT requests such as the BC subpoena are made through the Home Office. The PSNI couldn't just fire off a subpoena request to the US Department of Justice. This is possibly one reason why the NIO claimed to be surprised and embarrassed by the subpoenaing of the archive; certainly, the request of the archives should have made anyone with an ounce of sense at the NIO recoil in horror — not least because then Secretary of State Owen Paterson was praising the very same archive as a template to follow for potential truth commissions, and official decommissioning papers were in the process of being lodged in the same library.

To anyone with any real knowledge of the politics of Northern Ireland, subpoenaing the Boston College archives would be an act of pure madness that would fly in the face of the logic of the whole peace process. To a former RUC DCS nursing grievances like Baxter, however, the NIO refusal would just be more of the same political 'tampering' with policing he complained about in 2009 when he described what he perceived as the "extremely unhealthy interest by officials in the Northern Ireland Office about prioritising individuals who were on the run and about ensuring that they were cleared to return to the North."

Was an end run done by the PSNI investigators, who were following the Baxter template of using a criminal investigation to gather evidence for future civil action in order to circumnavigate 'political tampering', around the NIO and straight into the welcoming arms of key contacts at the Home Office?

Two months after the second subpoena was served, at the Tory Conference in 2011, Home Secretary Theresa May proudly introduced Colonel Collins as 'the first person to declare their intention to run as a Conservative candidate to become a police and crime commissioner'.

Collins would later withdraw his candidacy, such is the fickle nature of political backroom dealings, but that doesn't mean any quid pro quo wasn't followed through with.

How hard would it be, waiting in the long grass, for a respected former RUC/PSNI stalwart and his comrades of like mind to push against the political concessions made by the Sheridans and Ordes, Mowlams and Hains, and Powells and Blairs, using the easy door of instinctive and uninvolved British Tory bigotry, to police the past in revenge?

Or maybe it's all just coincidence.

The Good Friday Agreement and all the legislation that flowed from it, the years of processing peace, meant that the past was set aside in order to secure stability. One of the many bargains fudged was the decommissioning of IRA weapons in exchange for the amnesty-that-isn't-an-amnesty:

Northern Secretary Peter Hain today announced further steps in the “normalisation” of Ulster politics in the wake of the IRA’s decommissioning of arms. “This is not an amnesty,” he insisted.

“Nevertheless, the implementation of those proposals will be painful for many people. I fully understand this. But the government believes that it is a necessary part of the process of closing the door on violence forever.” (2005)

Now with the relative quiet of peace and stability, the past is being prosecuted in order to secure the politics of today's needs, and to settle old scores of long nurtured grievances. Short term political expediency trumps all, as it does every time. What treaty was ever written that wasn't meant to be immediately broken by the next political scoundrel who needs tomorrow's votes to stay in power? Yesterday's votes are as worthless as the treaties signed to secure them.

The problem for all concerned, the ordinary people who voted both for and against the GFA because they wanted the conflict to end, everyone, who in some way, no matter their politics, is a victim of the troubles, who grieves and hurts and was broken or cares for the broken, no one who was touched by the years of conflict is not a victim of them in some manner or other, are the political scoundrels who feed off that victimhood and passion and misery.

These same politicians made the peace deals, and wrote and passed the various GFA legislation that make prosecutions of the past a farce that constantly threatens to unravel the peace.

Today's political pursuit of the past is a constant undermining of the peace and an exploitative way of continuing the conflict as a cold war that nobody will ever win.

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Further reading:

The state and Northern Ireland’s past: “Very powerful forces are at play in Mi5 and PSNI, C2 intelligence and we need to look at their whole issue of legacy and their alleged involvement in many multiple incidents that happened in which people were killed.

“They are hiding the policy objective that was collusion because it went so high. So in terms of the British Government, they need to protect the people who directed the agent handlers, the managers of the agent handlers because very quickly it goes up the food chair into government and cabinet office.”

Can the Past Be Policed? Lessons From the Historical Enquiries Team Northern Ireland

CAJ and the Pat Finucane Centre joint submission to the Committee of Ministers in relation to the supervision of cases concerning the actions of the security forces in NI (PDF)

Norman Baxter and the McConville case:

• Daughter of McConville to sue Adams over murder
• I’LL SUE ADAMS; Daughter of Disappeared Jean to take case after claims SF chief ordered mum’s murder
• ‘I’m suing Adams for the truth — it is not about money’
• ‘PSNI must launch probe into Adams’
• Adams Should Be Arrested
• PSNI study claim over Adams and McConville
• It is victims of the IRA who need to be hugged
• Boston tapes ‘give hope to victims’
• Security Services Making a Killing from the Troubles
• Getting Gerry Adams: Norman Baxter’s Long Crusade
• Warning Over Boston Tapes; Testimonies Could Be Used to Destabilise Peace Process: McGuinness