Belfast Project: Are The Tapes Worth Anything In The Ivor Bell Case?

Ever since the arrest of Ivor Bell, I’ve been reading and hearing folks who had previously argued that no criminal prosecutions would ever come of the Belfast Project subpoenas saying that the tapes can’t or won’t aid the UK authorities in the criminal prosecution.

Here is a recent example from Ed Moloney, who makes two basic points: (1) The PSNI hasn’t conclusively proved that the relevant tape, which contains the interview of a person identified as “Z”, is a tape of Bell; and (2) the tape is hearsay, and Bell or “Z” was speaking without receiving cautions from the police (an “interview under caution” is, roughly, the UK equivalent of police questioning of a person under arrest with Miranda warnings in the US).

Warning: I’m not a UK lawyer, and so I’m operating on the assumption, which I think is true in broad strokes, that the law of evidence in our two countries is roughly similar. You have been warned.

Let’s look first at the problem of identifying Bell as “Z”. Let’s assume that even if Bell is “Z”, neither Bell nor his interviewer (perhaps Anthony McIntyre, though I’m not sure) will ever admit it. Is that the end of the story? No. The issue is one of authentication, and a voice can be identified in many ways. One way would be through an admission of a person with personal knowledge of the circumstances of a recording. But under US law, “An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker” is sufficient to authenticate a voice recording. FRE 901(b)(5). No doubt there are other, more technical, ways of authenticating a voice recording. So the fact that there is no admission by Bell or his interlocutor will hardly stop the UK authorities from trying to prove by other methods that the recording is what they say it is, and it may be they will succeed.

What about the supposed problem of hearsay? Hearsay, generally, is a statement made out of court that is offered in evidence to prove the truth of what it asserts. Before the Bell arrest, when I was contemplating the use of the tapes in a criminal trial in the UK, my assumption was that a person who was interviewed would implicate someone else in a crime, which would present the hearsay problem pretty starkly. So, for example, if “Z” said, “I saw Gerry Adams do it!” then the tapes themselves would be hearsay if offered to prove that Gerry Adams did it. Of course, Z could testify at trial that he saw Gerry Adams do it without any hearsay problem.

But it turns out that the issue probably isn’t that complicated. Assuming, as I do (provisionally), that “Z” is Ivor Bell, anything Bell said on the tape can be used as evidence against him. In US federal law, we would say that an admission of a party opponent is defined not to be hearsay (FRE 801(d)(2)). In any case, as anyone who has seen enough crime dramas on TV knows, “anything you say can be used against you in a court of law.” Again, I am assuming that UK law is similar to our law here.

What about the fact that Bell was not cautioned before his interview? In the US, there would be no issue, because you are only entitled to receive a Miranda warning if you are under arrest, and here, Bell was not only not under arrest, he was not even speaking to the police! I understand that the notion of interviews under caution similarly applies to questioning by police, not to an interview with a private researcher.

So in short, it seems to me that if you are going to confess facts to a private person that may constitute a crime, and if your conversation is being taped, you probably aren’t going to be able to rely on the hearsay rule, or the fact that you weren’t warned before you made the confession, to save you. You may be able to avoid trouble if the prosecution can’t prove, one way or another, that it’s your voice on the tape. But if a jury believes that it is your voice, you’re probably in a bit of trouble.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

7 thoughts on “Belfast Project: Are The Tapes Worth Anything In The Ivor Bell Case?

  1. There is no substance in Moloney’s second point; if Z is shown to be Bell then the tape is a confession and so (in the absence of any credible suggestion that Z was subjected to “torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)” by his interviewer, or the circumstances of the interview were such as to make his confession unreliable) admissible under article 74 of the Police and Criminal Evidence (Northern Ireland) Order 1989. But the court could still exclude the tape under its article 76 discretion if it was so persuaded.

    The absence of a caution in an interview conducted by a journalist on the promise of confidentiality is both not surprising and irrelevant.

    The requirement to caution a person (whether under arrest or not) before questioning them about their suspected involvement in an offence is currently to be found in paragraph 10.1 of PACE Code of Practice C (available here; see articles 65 and 66 of the 1989 Order). The PACE Codes do not apply to interviews conducted by journalists, because journalists are neither police officers nor “persons other than police officers who are charged with the duty of investigating offences or charging offenders” (1989 Order, article 66(8)).

    The relevant law would be that in force at the time of the interview, with which I am not familiar, but it seems unlikely that there was ever a requirement for anyone other than a police officer or similar official to caution a person before questioning them about their involvement in an offence.

    If Z is not shown to be Bell then the tape is almost certainly inadmissible.

    1. Thanks, P Smith. I think what I’ve written is basically compatible with what you’ve written, and I am grateful for the additional detail about interviews under caution.

  2. Important to mention here that Ivor Bell has not been charged with kidnapping or killing Jean McConville. The charges are for aiding and abetting, and the allegation appears to be that he was asked his opinion regarding the appropriate way to deal with Jean McConville (as a suspected informer), and gave it. There is no allegation that he participated directly in any event related to McConville’s death and disappearance, and Bell has been released. Also, the prosecutor said in court that he didn’t anticipate bringing the case to trail anytime soon. This arrest has no substance to it — it’s not for the crime being investigated, and it is unlikely to lead to a trial in anything resembling the near future.

    Meanwhile, Gerry Adams says he has had his lawyers contact the PSNI with an offer to submit to questioning. There is no sign that the PSNI has bothered to question the person who is supposed to be the target of their investigation.

    1. Thanks, Chris. You are right that Bell is charged with aiding and abetting the kidnapping and murder, and not with actually committing the murder or doing the kidnapping. I don’t know the law on this in Northern Ireland; in the U.S., though, there is no difference in the attribution of guilt to the principal or to an aider or abettor. Under 18 U.S.C. § 2, “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”

      The case may not be tried “anytime soon,” but I assume that in the UK, as here, once charges are brought, there are substantive and procedural rules limiting the amount of time the government has to bring the case to trial, unless the defendant waives them. Perhaps P. Smith will comment on these points.

      Has the PSNI ever said that its target is Gerry Adams?

      1. Section 8 of the Accessories and Abettors Act 1861, which I believe is in force in Northern Ireland in the amended version linked, provides that aiders, abettors, counsellors and procurers of indictable offences shall be dealt with as principal offenders.

        In England and Wales there are limits on the number of days an accused can be detained in custody between first appearance before a court and the start of a trial, but no actual limit on when the trial must start, although the Secretary of State does have power to make regulations imposing such an overall limit (Prosecution of Offences Act 1985, s. 22; Prosecution of Offences (Custody Time Limits) Regulations 1987 as amended).

        In Northern Ireland there is provision equivalent to section 22 of the 1985 Act conferring power to make regulations imposing such time limits, but so far as I can discover that provision is not yet in force (a further order by the Secretary of State is necessary for that to occur) and so no regulations have been made.

        In Scotland the position appears to be governed by sections 65 and 147 of the Criminal Procedure (Scotland) Act 1995.

        ECHR Article 6 in part provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. As ever, what constitutes a “reasonable time” depends on the circumstances of the particular case.

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