Collusion and the abuse of power

On Monday of this week the families and friends of Fran O’Toole, Tony Geraghty and Brian McCoy remembered their loved ones who were killed when members of the Glenanne Gang attacked the Miami Showband as they returned home from a successful gig in Banbridge on July 31 1975 outside Newry. The survivors have been fighting for justice ever since.

Last Thursday, as part of the ongoing battle around truth and legacy, around 40 relatives were in a courtroom in Belfast to hear the outcome of a case taken by one of the families against the PSNI. Patrick Barnard aged 13 was one of four people killed in a bomb attack on the Hillcrest Bar in Dungannon in March 1976. It was one of scores of attacks carried out by the Glenanne Gang, which included in its ranks members of the British Army, the Ulster Defence Regiment (UDR), the RUC, and unionist paramilitaries. In what is a significant judgement the High Court concluded that the PSNI breached its human rights obligations by refusing to publish an overarching thematic report regarding the murder of Patrick and “its linkage to other murders and offences carried out by the Glenanne Gang.”

During the 1970s, when the gang was active, it was responsible for over 120 killings, and scores of injuries, including the Dublin and Monaghan bombs in May 1974 which killed 33 people, and the bomb attack in December 1975 at Kay’s Tavern in which two Dundalk men Jack Rooney and Hugh Watters were killed. In 2001 a Commission of Inquiry under Mr. Justice Henry Barron was established by the Irish Government. Four reports were published and a Sub-Committee of the cross-party Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights conducted an extensive examination of the reports. The Sub-Committee concluded “that given that we are dealing with acts of international terrorism that were colluded in by the British security forces, the British Government cannot legitimately refuse to co-operate with investigations and attempts to get to the truth.”

The Sub-Committee was right. But the British have consistently and illegitimately refused to co-operate. It is now clear that policing, intelligence and political elements within the British system have sought to frustrate families and victims getting to the truth of the Glenanne Gang and its actions.

The judgement last week by Mr. Justice Treacy, sitting in the High Court in Belfast, was given in a case taken by Edward Barnard, the brother of Patrick. Edward’s legal team argued that the PSNI was in breach of a package of measures agreed between the British government and the Committee of Ministers (CM), which is responsible for implementing judgements by the European Court of Human Rights (ECtHR). These measures had been agreed after the ECtHR ruled between 2000 and 2003 that a number of complaints, regarding killings with British state involvement, had breached Article 2 – the right to life – of the deceased. The British government gave a commitment to the Committee of Ministers that investigations into state killings would be carried out independently.

The Historical Enquiries team (HET) was part of this process. It was supposed to be an independent investigative process with three main objectives. Firstly to assist in bringing a measure of resolution to families of those killed between 1968 and 1998; to re-examine all deaths linked to “the troubles” and to ensure that “all investigative and evidential opportunities are subject to thorough and exhaustive examination” and to do so in a manner that “commands the confidence of the wider community”.

However, seven years ago the PSNI brought the HET under the control of its Crime Operations Branch and removed investigative functions from HET officers. Under the new regime the HET could no longer arrest and question suspects. The PSNI also took control of the HET’s budget. Critically, in a reply to a letter from Edward Barnard’s legal representatives the Assistant Chief Constable of the PSNI (ACC) Drew Harris, on 12 June 2014, confirmed that the “HET does not intend to prepare an overarching thematic report into those cases referred to as the ‘Glenanne Gang’ linked cases.”

In deciding whether the PSNI decision not to produce an overarching report into the Glenanne gang was an abuse of power Justice Treacy “referred to case law which stated that “conspicuous unfairness” amounted to abuse of power. The more extreme the unfairness, the more likely it is to be characterised as an abuse of power.”

Justice Treacy ruled: “The unfairness here is extreme – where the applicant had believed that the murder of his brother would finally be considered in context for the purposes of discovering if there was any evidence of collusion in the murder, that process is now completed and will not be taken up by any other body.

The frustration of the HET commitment communicated by the ACC completely undermined the “…primary aim [of the HET] to address as far as possible, all the unresolved concerns that families have”. It has completely undermined the confidence of the families whose concerns are not only still unresolved but compounded by the effects of the decisions taken … “

The Judge is also critical of the decisions of the then PSNI Chief Constable in 2010. He expresses his concern that “decisions were taken apparently by the Chief Constable to dismantle and abandon the principles adopted and put forward to the CM to achieve article 2 compliance.”

Justice Treacy concluded that: “In the context of the Glennane series, as I said earlier, the principal unresolved concern of the families is to have identified and addressed the issues and questions regarding the nature, scope and extent of any collusion on the part of state actors in this series of atrocities including whether they could be regarded, as the applicant argued, as part of a ‘state practice’. I consider that whether the legitimate expectation (that the HET would publish an overarching thematic report) is now enforceable or not its frustration is inconsistent with Article 2, the principles underpinning the ECtHR judgments in the McKerr series and with the Package of Measures.”

In other words as the summary of the judgement states “the Chief Constable’s decision to transfer the work of the HET into a branch of the PSNI was fundamentally inconsistent with Article 2 and frustrated any possibility that there would be an effective investigation in the Glenanne cases.”

That has been the pattern for decades. The British state has consistently sought to cover-up the role of its policing, intelligence and military agencies in the killing of citizens.

Despite these efforts last week’s judgement was a significant success for the Barnard family and the scores of others effected by the actions of the Glenanne Gang. Regrettably, this legal milestone was largely ignored by the mainstream media or given little prominence in their news coverage. Where it was covered words like ‘rogue’ were used to describe the role of RUC, UDR and British Army members in the Glenanne Gang. The cover-up continues but so too does the search for truth by families.