Legal Drafting; a vital paralegal skill

There has been recent scandal surrounding the fact that letters granting immunity from prosecution were sent to various members of the IRA.

The Good Friday Agreement arranged for the early release of terrorists already imprisoned or convicted; however, the agreement did not cover terrorist suspects, or those who had escaped either prison or trial. It is those ‘on the run’ terrorists that the secret letters were sent to, seemingly giving them immunity from prosecution if caught.

This came to public light after the trial of John Downey, accused of being behind the Hyde Park attacks in 1982, was stopped by Mr Justice Sweeney after the produced a letter from 2007 stating that he had been granted immunity from prosecution over the matter.

The letter went on to state that “there are no warrants in existence, nor are you wanted in Northern Ireland for arrest, questioning or charging by police. The Police Service of Northern Ireland are not aware of any interest in you by any other police force.”

After consideration, Mr Justice Sweeney ruled that the trial had to be stopped in the light of such (apparent) immunity from prosecution.

Setting aside the moral and ethical issues surrounding the ‘On The Run’ letters given to 187 IRA suspected or wanted terrorists, they are a remarkable piece of legal drafting.

Although the exact wording and contents remains unknown, what is known shows that the carefully worded letters do not specifically grant immunity for past crimes- but in effect they do.

Evidence suggests that the letters state that “Following a review of your case by the [DPP], he has concluded that on the evidence before him there is insufficient to afford a realistic prospect of convicting you for any such offence arising out of…” The letters then go on to say that “You would not therefore face prosecution for any such offence should you return to the United Kingdom. That decision is based on the evidence currently available. Should such fresh evidence arise – and any statement made by you implicating yourself in… may amount to such evidence – the matter may have to be reconsidered.”

Legally, the letters are very clever. Whilst not granting automatic immunity, that this is what they confer. However, that can be taken away if fresh or compelling evidence arises. The letters also specifically refer to a certain crime or event, leaving the way open for arrest and trial on other charges.

Additionally, the phrase ‘insufficient [evidence] to afford a realistic prospect of convicting you’ is key. It neither confirms nor contradicts the suspect’s guilt in the matter, and refers merely to the important fact that criminal cases are only brought to trial if the Crown is confident in a conviction. If there is insufficient evidence, the CPS will decline to prosecute, and will focus its efforts and resources on cases where the possibility of conviction is greater. It is a very clever way of the legal system of avoiding what would be a politically sensitive and charged trial, on perfectly lawful and legal principles.

Although controversial and very questionable in ethics and morality, the letters themselves are an example of clever legal drafting.

Paralegals are faced with legal drafting on a regular, often daily, basis. Regular drafting makes the paralegal skilled at writing such letters, opinions, court submissions and representations.

Legla drafting; a skill and an art form invaluable to the paralegal

Knowing how to phrase legal opinions, or how to effectively communicate a legal position on paper, is a key skill in the legal profession, for paralegals and lawyers alike. Although matters of legal fact and legal opinion have to be set down and expressed, it is a skill and an art form in knowing both what areas of the client’s case to downplay, and what areas of the case to stress to the client’s advantage. After all, it is the absolute legal duty and obligation of the legal profession to represent their client to the best of their ability and effort, regardless of emotions, morality or culpability. Clever and articulate legal drafting of letters and submissions is but one method used.

When it comes to legal drafting, this often falls to the paralegal. Experience teaches the paralegal how to draft legal letters to get the maximum effect for their client’s case. Although not able to produce a letter granting immunity from prosecution, a cleverly and carefully drafted legal submission or opinion can, in effect, make that happen.

As such, legal drafting is an essential skill for a good paralegal to master; after all, never underestimate the sheer power of simple words.



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