Comments on: Belfast Project: Chris Bray Says “I Told You So!”

By: Ted Folkman

Ted Folkman — Fri, 07 Mar 2014 20:57:46 +0000

In reply to Chris Bray. Well, it's fair to criticize the MLAT itself for being a bad treaty, which is different from criticizing the Attorney General for doing what the treaty says. But remember that there is a good reason for having only very narrow grounds for refusing an MLAT request: we want foreign countries to cooperate with US authorities when the MLAT request is made by the US rather than directed to the US. The United States is very liberal in making evidence available to foreign governments for use in criminal prosecutions even without an MLAT (see 28 U.S.C. § 1782, which permits interested persons to seek evidence in the United States even before a criminal charge is brought). As far as I know, no other country is as liberal. And so MLATs are important because they introduce some reciprocity into the system.

By: Chris Bray

Chris Bray — Thu, 06 Mar 2014 21:41:41 +0000

In reply to Bridget Kearney. Your characterization of events doesn't reflect the news coverage, which is linked above in several places.

By: Bridget Kearney

Bridget Kearney — Thu, 06 Mar 2014 18:51:10 +0000

I’m confused as to why Mr. Bray is stating at least 187 republican militants wanted by the police were given letters promising them they would not be prosecuted. My understanding is during talks on the issue of OTR’s, Sinn Fein presented a list of such people to the authorities. The purpose of the letters was to ascertain if indeed there were outstanding warrants or some other means that indicated these people were wanted, if they weren’t then the letters stated that along with the caveat that if further evidence emerged, they could be subject to prosecution. It has been stated that some of the people on the list were told that yes they were wanted and were subject to arrest if they returned to the North. The most prominent example of this would be Rita O’Hare.

Now regarding Mr. Downey’s case his letter did not exempt him from arrest, as apparently it was issued in error and there was indeed a warrant out for his arrest at the time the letter was written. Though I am no lawyer, it is my understanding the case fell apart at trial on the grounds of entrapment.

By: Chris Bray

Chris Bray — Thu, 06 Mar 2014 17:06:49 +0000

In reply to Ted Folkman.

“….but it does not, as far as I can tell, impose a duty on the Attorney General.”

And that’s exactly the problem.

By: Ted Folkman

Ted Folkman — Thu, 06 Mar 2014 14:47:40 +0000

In reply to ed moloney. Ed, your concern about use of the evidence in a civil trial may be premature. Under Article 7 of the MLAT, the UK cannot use or disclose the evidence for any purpose other than criminal prosecution without the consent of the US, and I do not think we know if such consent has been sought or given. I also think you overstate the responsibilities of the Attorney General. You seem to suggest that there is an obligation of due diligence. Article 3 of the MLAT provides a handful of discretionary grounds for refusing to execute an MLAT request, but it does not, as far as I can tell, impose a duty on the Attorney General.

By: ed moloney

ed moloney — Wed, 05 Mar 2014 22:50:42 +0000

The subpoena application was always dodgy and pointed to the same conclusion Chris arrives at here but for different reasons.
Although the interviews could be presented in court under current British rules of evidence, their probative value was always doubtful, given that these were not sworn statements nor interviews given under caution. At the very least conviction would require compelling additional evidence which, given the passage of time, was highly unlikely.
My view has always been, from the outset, that the PSNI officers who began this process knew this but were also aware that while the interviews might not be sufficient to produce a criminal conviction they could be used in a civil case. That is because the standard of proof is markedly different in each, i.e. “beyond a reasonable doubt” versus “on the balance of probability”.
I always believed that the PSNI aim was to get these interviews used in a civil case against Gerry Adams and I believe the evidence is there for this and will eventually be produced. The detectives knew the interviews were not strong enough to secure criminal convictions and now we know there is a possibility that since Mr Adams may have been given one of these letters and therefore could not be prosecuted, the option of criminal proceedings may never have existed.
There are serious questions here for Messrs Holder and Ortiz. We know from her opening statement to the district court in Boston that the Mass US Atty, Ms Ortiz did not do basic due diligence (believing, for instance, the PSNI’s word that Belfast’s equivalent of a supermarket tabloid had been granted access to Boston College’s secret archive of taped IRA interviews); now the question must be put to Mr Holder. Did his eagerness to please a partner in the war against Islamic terrorism allow the British to subvert an international treaty and threaten a peace process which prior USA administrations had labored hard to create?