The resignation of Barra McGrory QC as Director of Public Prosecutions will be widely welcomed by the majority of the Unionist community.
I have been highly critical of Mr McGrory for almost 5 years. Indeed the DPP even once engaged a private legal firm in an attempt to have me remove a number of online postings relating to his role. A freedom of Information request later confirmed that this initial legal action, undertaken by a private firm, was paid for out of the public purse. This led Kate Hoey MP to challenge Mr McGrory publically about whether this was an appropriate use of public funds. The threatened action never proceeded.
There had been whispers within the legal community from the middle of 2007 that Mr McGrory was destined for bigger things. In 2007 he had become the first ever solicitor to become a QC and in 2009 was called to the Bar. This impressive rise ran, perhaps coincidently, in parallel with the restoration of the Northern Ireland Assembly and the road to the Hillsborough Agreement in 2010, which saw the devolution of policing and justice powers to Northern Ireland.
Under Section 30 of the Justice (NI) Act 2002 the Attorney General- who was by then John Larkin QC- appointed West Belfast solicitor Barra McGrory as Director of Public Prosecutions.
At the beginning of his tenure Mr McGrory took up post without a whimper of protest from the mainstream Unionist parties. Indeed there is a school of thought that there was a DUP-SF understanding that the DUP would get John Larkin QC, who was appointed jointly by OFMDFM and is robustly conservative on social issues, as Attorney General and in return they would raise no objection to Barra McGrory being installed as DPP. A move that would further ease Nationalist concerns in relation to their acceptance of the policing and justice apparatus.
From 2011 onwards it was the loyalist community that arguably felt the full force of what many would contend were questionable prosecutorial decisions. This ranged from a largely discredited supergrasstrial to a number of contentious prosecutions of Unionist bandsmen and flag protestors. Despite the failure of the Stewart brothers supergrass trial, Mr McGrory defended the use of the system and in March 2012 told the BBC that the supergrass system “will continue”. There were also serious concerns within the loyalist community around the issuing of non-jury certificates for some cases which did not relate to terrorism and the issuing of such certificates were based almost solely on ‘intelligence’.
It was not however until the explosion of the OTR scandal, when it was revealed that Mr McGrory acted on behalf of the individuals put forward by Sinn Fein as ‘on the run’, and the relentless pursuit of former armed forces personnel, that the mainstream Unionist parties were forced into joining the chorus of concern.
Perception matters in Northern Ireland (our very system of Government is set up in such a way as to provide the two largest communities with an effective ‘safety lock’) and the filtering into the public domain that Mr McGrory acted on behalf of IRA volunteers on such a contentious issue caused a perception of bias to grow within the Unionist community. Mr McGrory has robustly rejected all such allegations.
There is, however, a crucial and as yet unanswered question around the whole OTR scheme and Mr McGrory’s role. Who was his client?
Mr McGrory told the NI Select Affairs committee that he was passed names by Sinn Fein and he then proceeded to write on their behalf to the PSNI to seek information on whether they were ‘wanted’ or not. That would suggest no direct contact with the individuals themselves, but rather instructions given via the conduit of Sinn Fein. If Mr McGrory did not personally deal with the individuals, then they could not personally instruct him. This leaves open the possibility that Mr McGrory was retained not by the OTR’s themselves, but by Sinn Fein corporately. Put bluntly, who paid Mr McGrory’s fees?
If Mr McGrory was instructed corporately by Sinn Fein, then this leaves the door ajar in relation to two matters. The first being, at least in the interests of public perception, whether Mr McGrory should then have taken steps to recuse himself in relation to all matters involving individuals involved in Sinn Fein?
The second is to what extent legal privilege covered his communications with Sinn Fein or IRA personnel in relation to the OTR scheme. Given we do not know who the instructing ‘client’ was, it is difficult to ascertain what conversations and advice was covered by legal privilege and what was not.
The big questions will not go away with Mr McGrory’s resignation and it will take a long time to repair, at least in the eyes of the Unionist community, trust in the justice system within Northern Ireland.