The families of the Bloody Sunday victims were offered not truth and justice, but truth or justice. At best, there was a hope this might become truth as justice.
Evidence to the Bloody Sunday Inquiry, which concluded in 2010, was inadmissible in subsequent criminal proceedings. This is standard practice in inquiries and unavoidable if they are not to function as de facto full criminal trials, with all the restrictions on evidence that entails.
In theory, future prosecutions were not ruled out. In reality, as each of the 921 witnesses testified, they made the facts of their case useless to potential prosecutors, thereby rendering themselves immune.
The one exception, the military witness designated “Soldier F”, is facing two counts of murder and four of attempted murder because the inquiry accused him of “knowingly [putting] forward false accounts”.
This opened the way to a PSNI investigation and action by Northern Ireland’s Public Prosecution Service (PPS). In effect, the case against Soldier F is that he did not provide truth, so justice must take its course.
If convicted, he would qualify for the two-year early release provision in the Belfast Agreement.
The PSNI investigation following the inquiry reported 20 people – 18 former soldiers and two former republican paramilitaries – for possible prosecution.
When the PPS decided last year to prosecute only Soldier F, it took the unprecedented step of issuing a detailed explanation of its reasoning, which boiled down to the inadmissibility of inquiry evidence.
Lifted the veil
The PPS is normally the most opaque part of Northern Ireland’s criminal justice system by deliberate policy. It lifted the veil due to the extreme importance and sensitivity of Bloody Sunday and also because it could be confident its reasoning was watertight.
This still caused huge upset to some of the families, who requested an internal PPS review. That concluded this week, upholding last year’s decision.
Families now say they will seek a judicial review, although it is hard to see how this will reach a different conclusion, given the legal consistency of decision-making so far.
Legalistic arguments, however robust and well-intentioned, are to most ears a grotesque response to atrocity
Wider reaction has been characterised by nationalist anger and unionist silence. Sinn Féin and the SDLP both described this week’s announcement as “disappointing”. It would have been politically impossible for either to say less, nor could unionist politicians have helped by adding more. Legalistic arguments, however robust and well-intentioned, are to most ears a grotesque response to atrocity.
All of this is ominous for the planned general approach to dealing with the Troubles, which formalises the truth or justice model.
Set out in the 2014 Stormont House Agreement between the British and Irish governments and most executive parties, it was reaffirmed in later deals in 2015 and January this year.
The Ulster Unionist Party is the only significant dissenter.
Under the agreement, both governments are to create a cross-Border body called the Independent Commission on Information Retrieval, offering victims and survivors the stark choice to "seek and privately receive information" on Troubles deaths, on condition this will not be passed to police or intelligence agencies and will be inadmissible in criminal and civil proceedings.
Effective immunity
The aim is to encourage former paramilitaries to give information in return for effective immunity. They will also be granted anonymity.
As with the Bloody Sunday Inquiry, prosecutions are not officially ruled out. Another body called the Historical Investigations Unit, with full policing powers, will review all unsolved Troubles murders for fresh evidential opportunities. But it is well understood such opportunities will be vanishingly rare, with many cases dating back half a century.
The British government has recently caused controversy and further delayed implementation by proposing a quick up-front review of all Troubles cases. Some lobby groups say this will breach human rights law but nobody can claim it will make much difference to outcomes.
The Stormont House Agreement is not the cynical stitch-up that political dealing might make it appear. Its institutional structure is lifted directly from the Consultative Group on the Past, a landmark independent body set up in 2007 in an attempt to depoliticise recommendations. That in turn drew inspiration from the commission on the disappeared, established in 1999, which traded immunity for information.
Practical solution
Truth or justice is a model Northern Ireland keeps coming back to whenever the legacy of the Troubles is considered. Obviously, most parties to this debate have a partial agenda, yet they all tend to arrive at the same answer as those genuinely seeking a humane and practical solution. This has at least offered hope of consensus, but Bloody Sunday shows it will not work in terms of satisfying the bereaved, resolving tensions and addressing the past as most people wish and expect a legacy process to do.
The only alternative ever suggested is an amnesty, more as a counsel of despair than as a better approach.
It remains a fringe idea, but the events of this week can only have bolstered it.