The following Platform piece by Doug Beattie MC MLA, appeared in the Newsletter today (Wed 26 September) as part of their “Stop the Legacy scandal” series.  

I wrote some months back that the charge of collusion has been thrown about so widely that it has almost become meaningless

My views have not changed.

Speaking to the Irish government justice representative in June I asked them what definition they used for collusion, their answer was simple.

They do not define collusion but instead use the terms relating to any offence committed such as aiding and abetting.

Yet here in Northern Ireland the clamour for every killing or incident logged against the state or loyalist paramilitaries is to be described as collusion is deafening and completely inaccurate.

Indeed, a letter I received from the Attorney General for Northern Ireland, John F Larkin QC, in response to a letter I sent him about the definition of collusion, could not be any clearer.

He said in the letter that “the term collusion is, in the absence of a clear and generally accepted definition, unhelpful. It is not a term that I now use as a descriptor”.

In simple terms there is no such criminal offence as collusion.

Yet the office of the Police Ombudsman, present and past, has used and continues to use collusion as a descriptor.

The attorney general pointed out that the “criminal law provides for various forms of participation whether by aiding and abetting, counselling or procuring, or conspiring in, or attempting, the commission of criminal offences”.

He says that he is not sure “that there is much benefit in trying to use one word (such as collusion) to cover all the ways in which an offence may be committed but I am sure that there is no benefit either in using collusion vaguely, or in using it to describe acts which are not themselves criminal”.

The attorney general is responsible for Section 8 Guidance under the Justice (Northern Ireland) Act 2004.

This applies to criminal justice organisations in the exercise of their functions in a manner consistent with international human rights standards.

Therefore, where is the standardisation within the criminal justice system?

In 2003 Lord Stevens, the then Metropolitan Police Commissioner said collusion ranges “from the willful failure to keep records, the absence of accountability, the withholding of intelligence and evidence, through to the extreme of agents being involved in murder”.

In 2004, Canadian judge Peter Cory published six reports into alleged collusion in murders in Northern Ireland and highlighted several dictionary definitions of the word including “to co-operate secretly: to have a secret understanding” and he also added definitions of connive, a synonym of the verb collude.

However, an inquiry into the death of Billy Wright, in the Maze prison in 1997, took issue with the emphasis on connivance.

The report said

“We have been concerned throughout the inquiry by the width of the meaning applied by Judge Cory, having in mind in particular that the word is not to be found in our terms of reference.”

“For our part we consider that the essence of collusion is an agreement or arrangement between individuals or organisations, including government departments, to achieve an unlawful or improper purpose. The purpose may also be fraudulent or underhand.”

The first police ombudsman for Northern Ireland, Nuala (now Baroness) O’Loan adopted the definitions, in 2007, of Lord Stevens and Peter Cory to examine whether there had been collusion in the murder of Raymond McCord Jnr and using those definitions, she concluded that there had been collusion.

However, her successor as police ombudsman, Al Hutchinson, applied a less broad definition in his report on the attack, in 1971, on McGurk’s Bar.

In his review of the murder of Pat Finucane, Sir Desmond de Silva said he had adopted a “working definition” of collusion less broad than that of Judge Cory and more in line with that of the Billy Wright inquiry panel, whereas Justice Smithwick gave a similar definition of collusion to that of Peter Cory.

The argument that collusion was persistent, deliberate, institutional and one-sided is easily argued away by the fact that if it was, ‘The Troubles’ in Northern Ireland would have ended in the mid-70s with the death of those leading figures of the IRA both North and South of the border.

The fact that they did not, demonstrates clearly that the state adhered to the rule of law and continues to adhere to the rule of law, well beyond what many feel is appropriate.

Of course there were some who used their position within the armed forces or the police to act outside the law and they should face the full force of the law.

But to say that something was an example of collusion, or that RUC investigatory methods of the 70s — viewed as ineffective through the optic of the 2018 — amounted to collusion is simply fantasy.

All governments use Human Intelligence (HUMINT) sources. During the Troubles the majority of these HUMINT sources were from within IRA.

Indeed, even today, many have simply transferred their IRA credentials to Sinn Fein but continue to take the Queen’s shilling as a HUMINT source. 

This is not collusion, this is effective intelligence and it is one of the reasons why the IRA is a spent force.