Legal consequences should have been considered early on
IN hindsight, is there anything more you should have done to safeguard the confidentiality of the Boston Tapes?
My question last night to Ed Moloney, journalist, author and director of the so called "Belfast Project" elicited a furious response. He has been snowed under with media requests about the controversial release of interviews with former paramilitaries that led to the recent arrest and questioning of Sinn Fein leader Gerry Adams.
After excoriating me on the phone, Moloney, author of the 2010 tome 'Voices from the Grave' – based on the secret tapes – quickly apologised.
Moloney has been accused, improperly, in some quarters of being reckless with people's lives and of profiteering from the post- mortem secrecy afforded to "donor" interviewees.
Given the fragility of the Good Friday Agreement and the risks posed by the content of the Boston Tapes, Moloney's ill temper is understandable.
But key questions remain about the legal sanctity, if any, that could ever be afforded to the accounts of donors, by definition significant players in the Troubles.
Serious questions also remain about what steps the Belfast Project partners took to ensure confidentiality, relative to the risks posed by their disclosure.
A contract signed by interviewees gave the donors "ultimate" power of release until they died – after their death that power rested with Boston College.
The brief, three-point donor contracts also stated that any release of tapes would be restricted except where the donor, in consultation with Boston College, gave written approval for their release.
What consideration was given to the prospect of transatlantic court orders compelling discovery of the tapes is a major bone of contention between Moloney and Boston College. The latter insists that any such guarantees were conditioned by the phrase "to the extent that American law allows".
This clause does not appear in the donor's contracts, and Moloney claims that had it been there "red lights would have been flashing". But it proved crucial when the PSNI issued a request in 2011 to the US Department of Justice seeking interviews of Brendan Hughes and Dolours Price in connection with an abduction and murder, which later transpired to be that of Jean McConville.
The request, subject to a flurry of hotly contested litigation that ended up in the US Supreme Court, was brought under a mutual legal assistance treaty between Britain and America and resulted in some 11 out of hundreds of interviews being released to the PSNI.
Could these tapes ever be used in a court setting?
In theory they could, owing to a change in the law in Northern Ireland which gives the courts discretion to admit out-of-court statements as evidence of the truth of their contents if this is in the interests of justice.
Article 20 of the Criminal Justice [Evidence] (Northern Ireland) Order 2004 even provides for the admission of statements where the identified maker of the statement is dead, unfit and outside of the United Kingdom, amongst other things.
The Boston Tapes ruling has repercussions that extend far beyond the bounds of Northern Ireland, academic freedom and criminal inquiry. The balancing of rights is a delicate one, but it is regrettable that the legal consequences were not fully addressed at the outset of this important research.