Austen Morgan: Why did Gerry Adams pull the plug on the victims’ claim?

Dr Austen Morgan is a barrister at 33 Bedford Row Chambers.  He is the author of: Pretence: why the United Kingdom needs a written constitution, London 2023.

The abandonment of the English IRA victims’ claim, against Gerry Adams, being heard by Mr Justice [Jonathan] Swift in the high court in London, on the last listed day, came as a surprise.  There will be no judgment to debate (or appeal).  But the three ageing claimants had risked losing their costs’ protection.  And it was Gerry Adams – importantly – who ended the fight.

The context of the McCue Jury & Partners unusual tortious claim needs to be appreciated.  This was private law, against an alleged natural tortfeasor (the IRA having no legal existence).  And the context was the conservatives’ 2023 Northern Ireland legacy act (public law), which the feeble Starmer government set out to repeal and replace (now paused), in order principally to please the Irish government and reset relationships with the EU.

The three claimants (who gave evidence) – John Clark, Jonathan Ganesh and Barry Laycock – had been caught up respectively in the 1973 Old Bailey bombings, and the 1996 (London) Docklands and Arndale (Manchester) IRA attacks.  One was left in no doubt – listening to their testimonies – about the lifelong physical and especially mental injuries of innocent passersby.

Gerry Adams – who was cross-examined relentlessly over two days by Sir Max Hill KC, a former director of public prosecutions – told us a different story: not only was he not a member of the army council in 1973 and 1996, and therefore not personally responsible (arguably) for the bombings; but, having joined Sinn Féin in 1964, he did not join the new provisional IRA in 1969 – he went through the troubles of the 1970s, 1980s and 1990s as a political activist while others did the killing and were killed!

Memoir evidence was adduced from Seán MacStíofáin, the English-born IRA chief of staff, and William Whitelaw, the secretary of state, about the secret Cheyne Walk talks in 1972, facilitated by the RAF, where Gerry Adams and Martin McGuinness were the youngest members of the Irish delegation; MacStíofáin, and especially Whitelaw, agreed that the UK government had negotiated with the IRA (not euphemistically with the republican movement).

Adams tried to allude, from the box, to the first Jonathan Swift, the Irish whig and hardly a republican, but his lordship was having none of this Irish familiarity and blather.

Adams was good on the historic crimes done Yeats’ Cathleen ni Houlihan (realized in 1902 by his unrequited love interest, Maud Gonne), even singing the praises of Dolours and Marian Price – the prison hunger-strikers after the Old Bailey bombing – who went on to oppose publicly the Irish Nelson Mandela (as Adams is characterised by some gushing identitarians).  Dolours, the older of the two, breached the republican code of omerta, by identifying Adams as her IRA commander, but the latter went again to gaol as an alleged dissident republican.

Closing submissions began on the Thursday of week two, and that is when the case started to go wrong.  Adams’ lawyers from Matrix chamber (including originally a certain Richard Hermer) had never tried to strike out the claim, one of the grounds for trying to do so being abuse of process because of the delays from 1973 and 1996 causing prejudice to Adams defence.

Observing from an overflow court, it seemed that the learned judge and Edward Craven KC for the defendant joined in confusing issues, when the question of the Limitation Act 1980 section 33 (discretionary exclusion – a statutory right – of time limit for actions in respect of injuries or death) should have been legally deconstructed.  (Adams had portrayed himself as the Irish peacemaker – laughably from the early 1970s at times – , and it is difficult to see how he was prejudiced as a defendant from 2022 after the acquiring of this historical reputation.)

On the Friday morning, having undoubtedly discussed matters with Adams, his legal team offered to ‘drop hands’ – essentially walk away from the court.  The claimants’ costs’ protection, granted by an earlier judge, had overnight become uncertain, because of the discussion of abuse of process.

The claimants’ solicitors (judging by their press release) are critical of the judge – the word unfairness has been uttered – but they would professionally have been required to bring their barristers and lay clients together on the last day on the risk of Adams demanding his not-inconsiderable legal costs.

The really perplexing thing about the case, is why Adams chose to fight in the royal courts of justice.  He had two alternative options.  One, he could have refused to leave his ‘Ireland’.  The claimants securing a punny judgment in default in London would have permitted him to lecture them about the need to move on.  Second, he could have taken ‘the fifth’ (in US speak): come into court and answered; on the advice of counsel, I decline respectfully to answer all questions on the ground that I might incriminate myself – the no comment defence.

Adams has been accused frequently of hubris.  Members of the public, and the very many journalists in court, heard Sir Max Hill’s seemingly endless flow of questions and Adams staccato ‘not true’ replies, where every witness – from rehabilitated republicans to military intelligence officers, anonymous and identified – was contemptuously dismissed as part of a UK conspiracy of liars out to do down the bearded one.

I learned something from the two days of cross-examination.  Perversely, Adams seemed to want to acknowledge the demonic figure created in the minds of his critics who had sworn to tell the truth.  That is why he came to London.  But in his consistent denials – counter-interrogation training anyone? – he turned himself into the major victim of the UK occupiers of his country, the habitué squatting in his mind for decades.  He was fighting still, and selflessly, for Cathleen ni Houlihan.

The claimants’ perpetrator was really the victim, according to the defendant.  An English high court judge would not be allowed to determine Gerry Adams’ involvement in the 1973 bombings, if not the 1996 ones.  That is why he dropped hands.  But, like the heroic victim, he was prepared to endure the four years of ‘torture’ constituted by the claim.  That is why he sat in court for two weeks, with anti-national types (in his judgment) rubbing shoulders with his close-body protection.

Martin McGuinness – who claimed unconvincingly to have left the IRA after Bloody Sunday – acknowledged his IRA membership on his gravestone in Derry in 2017 (having enjoyed Lord Saville’s earlier grant of immunity and still not broken his IRA oath).

Will Gerry Adams (in the continuing absence of a united Ireland by consent and still maintaining the code of omerta), then give us the finding of fact we might have obtained, but did not get, from Mr Justice Swift?