Ivor Bell, who was accused of soliciting the murder of Jean McConville, was acquitted last week in a Northern Ireland court after the judge directed a verdict in his favor. The charges against Bell had resulted from his taped confession, given to researchers at the Belfast Project, an oral history project about the Troubles that I’ve written about extensively over the years. The tapes were the subject of years of litigation after the Northern Ireland authorities requested legal assistance from the US government to obtain them from Boston College under the US/UK mutual legal assistance treaty. After the challenges to the subpoenas were finally, and in my view correctly, rejected and the tapes were produced, there were further challenges in the Northern Ireland courts to their use, which again were rejected, and thus the tapes were offered in evidence at Bell’s trial. But the judge excluded them from evidence, and as the confession was the only real evidence of guilt, decided that the jury could not convict.

Authenticity and Hearsay

The judge’s reasons for excluding the tapes were very surprising to me. I thought that if the tapes were going to be excluded, it would be because the government would be unable to authenticate them, that is, unable to show that the speaker on the tapes was indeed Bell. I wrote about the issue of authenticity back in April 2014. But no, the judge wrote that “the evidence that Z [the pseudonym used to identify the interviewee] is Mr Bell is overwhelming.” If the tapes were taken to be authentic, I thought (and wrote) that there would be no hearsay problem, as the confession was the defendant’s own statement. So of course the tapes should at least be admissible, even though the jury would of course be free to believe or disbelieve Bell’s confession. And in fact the judge did not perceive a hearsay problem either.

The Reliability of the Confession

The issue had to do with the law of evidence as it relates to confessions in Northern Ireland. In general, as you would expect, confessions are admissible evidence. Article 74(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 provides:

In any criminal proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this Article.

But in Northern Ireland there is an exception in Article 74(2)(b) of the same Order in cases where

it is represented to the court that the confession was or may have been obtained—

1. by oppression of the person who made it; or
2. in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof.

In such cases, the government must prove beyond a reasonable doubt that the confession was not thus obtained.

The judge reasoned that the promise of confidentiality that the Belfast Project gave to Bell, which he rightly held was a false promise, might have rendered Bell’s confession unreliable. Why? For one thing, the judge reasoned, his interviewer, Anthony McIntyre, was “not in any way a professional or neutral interviewer,” but rather “had his own agenda against Mr [Gerry] Adams, the peace process and the Good Friday Agreement.” More fundamentally, the judge reasoned that while Bell “might have felt liberated and free to tell the truth and to leave as his legacy his version of the Troubles,” he might also

have felt free to settle scores with his former colleagues who he believed had betrayed their cause. He may have felt free to lie, to distort, to exaggerate, to blame and to mislead.

It’s interesting to contrast Northern Ireland law here with US law. We also have a rule excluding criminal confessions if they are not voluntarily made. A body of precedent has arisen outlining what voluntariness means. I am not a criminal lawyer, but it seems pretty clear to me that no one could say that Bell’s confession was involuntary, mainly because he was not under arrest or even accused of any crime. Assuming the judge’s reasoning was right, there is clearly a difference between US law and Northern Ireland law here. I think, though, that the judge’s reasoning is dubious. It’s never in a criminal’s interest to confess to a crime, and so in any confession (bragging to a friend as a way of making oneself seem important, implicating oneself in a crime in order to bring down an enemy, telling tall tales, or whatever) there are likely to be mixed motives and incentives. More generally, in the law of hearsay we ordinarily take the view that when someone makes a statement against his own penal interest (i.e., when someone confesses to a crime), the statement has unusually great indicia of reliability, because ordinarily when someone lies, he tells lies to his own advantage, not to his own disadvantage. It seems to me that these issues are really for the jury to sort out (though the judge considered and rejected that view). But I won’t say the judge was wrong, as the question was one of Northern Ireland law that I’m not really competent to answer.

Fairness Considerations

The judge had an alternative basis for his decision, resting on Article 76 of the Order:

In any criminal proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

This rule is like our FRE 403, which allows a court to exclude evidence “if its probative value is substantially outweighed by a danger of … unfair prejudice …” The same considerations that justified his decision under Article 74—McIntyre’s bias and the false promise of confidentialiy—also justified a finding of unfairness.

Irony Abounds

I trust that the irony of this outcome is clear. The whole point of the Belfast Project, according to its leader, Ed Moloney, was to be an “early version of [the] truth recovery process” that the researchers hoped the government would eventually take up but couldn’t at the time “because of political sensitivities.” The reason the UK authorities’ efforts to obtain the tapes had to be fought was that there would be a “decidedly negative impact on the willingness of combatants to take part in any wider process of truth telling” if the confidential interviews could be made available to the government. Moloney made the same point in his reaction to the verdict: “We had only one governing rule while the project was underway. That was to seek out the truth.” But the main reason why Bell’s confession could not be used against it was that, due to the faulty legal setup of the Belfast Project and the bias of its interviewer, the circumstances of the confession were insufficiently reliable!