The collapse of the trial of the man accused of the Hyde Park bombing is both serious and potentially dangerous to the stability of Northern Ireland.
Historic wrongs were done on both sides and bringing the communities into greater trust and practical co-operation is an ongoing but fragile process, which unexpected debacles like this do nothing to assist.
The problem operates at multiple levels and yet again we return to a concept that appears to be becoming the theme of Brother Ivo’s blog. In a word “integrity”.
Lord Trimble is a man who was closely involved in the peace negotiations from the loyalist side. He claims that the policy behind the notorious letter allegedly sent in error to Mr John Downey, indemnifying him against prosecution, was never a part of the political Ulster peace settlement. He is saying that even if it was validly sent by Government, those who authorised it, did so without the knowledge or approval of those representing the loyalist community.
Brother Ivo has no basis to doubt Mr Trimble’s integrity on this account.
It is currently unclear if the letter was intra vires or ultra vires the competency of the Westminster Government and that needs to be clarified early. MP’s must ask searching and careful questions.
Plainly however the letter was sent and had a direct legal effect and political consequence.
The public is entitled to know if this type letter was part of an agreement and if so, who were the parties to that aspect of agreement. Were those parties limited to the negotiating teams, the Government of the day, the Civil Servants, the Republican negotiators? Specifically, were any stakeholders in the peace process excluded from knowledge of the agreement, and/or the detailed terms thereof?
We know that this was a complex and sensitive negotiation and we still need to to tread carefully. We also need to ensure that we do not blunder into crisis by accident.
If such letters were part of the settlement, then those who received a proper and lawful indemnity should have the promise honoured. It may be uncomfortable, but sometimes historical amnesia is necessary.
Let us remember that despite horrendous behaviour by troops under his command, the Japanese Emperor was given a State visit to these shores in 1971. That was no less offensive to the former war prisoners of the Japanese that the sight of Mr Downey casually strolling away from the Old Bailey.
Yet that that is not an end to the matters.
If a line is drawn to benefit Republicans there can be no justification for loyalist paramilitaries and British Servicemen to be treated differently. Brother Ivo reminds himself that he is talking about crime on all sides; if he is advocating pragmatism it will hurt victims but sometimes one reluctantly chooses to act against formal Justice. If so we must do it openly regretfully and accept the inevitable justified criticism. That is the essence of integrity – taking the consequences for one’s actions.
There is wisdom in the Book of Common Prayer confession of wrongdoing and sin ; ” we should not dissemble nor cloke them before the face of Almighty God our heavenly Father; but confess them with an humble, lowly, penitent, and obedient heart; to the end that we may obtain forgiveness of the same, by his infinite goodness and mercy.”
Let our politicians read mark and inwardly digest before they speak of these things.
Mr Trimble may be right that trying to overturn the Judge’s decision in this case is more trouble than it is worth. We are a country that respects the rule of law and bad cases do not make good law. Mr Downey may be the unworthy lucky recipient of bad administration or shabby politics. So be it. There is however no reason why everyone in receipt of such a letter needs to profit from it.
The precise nature of that bad administration or political decision should be examined in detail.
Are we talking clerical error, computer glitch, poorly applied judgement or a secret political agreement?
There is no point in debating the problem until the parameters of the problem have been evidenced and made available. Brother Ivo and others fear that there may have been a collusive deal which kept its details from the loyalist negotiators but it would be irresponsible to build a judgement, still less a campaign, upon premature speculation.
It is right to put that concern into the public discussion however, as a marker: that issue needs to be addressed in Government explanations. If our politicians or Civil Servants acted improperly we can and should hold them to account, that is the sine qua non of a functional democracy. It is as offensive for them to go unpunished as it is for an IRA terrorist to avoid a trial of the evidence.
The public mood is mainly directed to the IRA criminals, and there is no reason why the Government cannot and should not redress the problem. It need not break the peace process.
Mr Downey relied upon a well established principle of estoppel. He had received a promise of indemnity and acted to his detriment in reliance of it. Not everyone who received that letter has changed their actions upon such reliance.
The Government can and should write to the other recipients to make clear the error and to advise them not to rely upon that promise. Should the recipient later come before the jurisdiction of our Courts, the onus of proof will lie on the accused to prove a post receipt detriment, and that may not be as easy for them as for Mr Downey.
It is hard to see that Republicans could object to that with any integrity. If it is within the agreement then prove it and it shall be honoured .If it is an error and their people have not acted to their detriment, then the withdrawal will have left them in no worse position.
There has been progress in Ulster. We must not throw the baby out with the bath water but neither do we have to completely affront our sense of Justice by simply letting everyone involved in this sorry story escape scrutiny.
Wrongdoing should have consequences whether it be by incompetent administrator, devious politician or terrorist murderer. Mr Downey may be lucky; it is no basis upon which to build a precedent for everyone else involved in this sorry business.