Prof Kieran McEvoy
A get out of jail card has been produced by a group of academic lawyers who have spent years wrestling with the intractable problems of the Troubles legacy. The card would not only work for former soldiers facing charges, but also for the British government which is likely to face years in court if it tries to discriminate in their favour.
Three weeks ago the government suddenly abandoned the long discussed and much consulted on plans originally in the Hasss report for an independent Historical Investigations Unit (HIU) and a separate Independent Commission on Information Retrieval (ICIR) to disclose information to relatives where legal process is no longer required.
The lawyers who formed a model Bill team to draw up proposals for dealing with the past have attacked the UK government’s abrupt decision to abandon its own Stormont House Agreement (legacy) Bill in favour of a desk top review of cases against former soldiers and a quick end to prosecutions.
In human rights terms this was a proposal so obviously outrageous that it may have been a ruse which has now had the desired effect of creating a strong argument for an amnesty. The government promised legacy legislation within 100 days of the resumption of Stormont. But no doubt this has been substantially delayed.
I’m indebted to Brian Rowan writing on eamonnmallie.com for drawing attention to the model team’s latest report. I hope the News Letter covers it with same dedication it gave to claims of discrimination against the security forces.
For now the model Bill team have dramatically come up with their own version of a case by case amnesty which on the face could satisfy the government and many of its critics. The team have revived their proposal to apply the early release scheme designed for paramilitaries that was a crucial part of the GFA settlement to former soldiers and police officers charged with Troubles offences . The immediate objection to their plan is that it creates unwelcome parity between former soldiers and former paramilitaries. Solders living under the shadow of a charge might think that is a price worth paying.
The proposal is also open to objection as a denial of open justice. The cases against old soldiers accused of serious offences would not be heard. Calls to redouble searches for fresh evidence have been muted although there is no recommendation to terminate the investigations of the PSNI’s Legacy Investigations Branch and other inquiries.
The Historical Investigations Unit (HIU) so suddenly dropped by the government would be restored but its scope much reduced. There is nothing here that will unearth new evidence. Indeed the model bill team frankly recognise that fresh evidence is unlikely to emerge unless it comes in the form of voluntary confessions without the threat of legal sanction.
Professor Kieran McEvoy from the School of Law at Queen’s University leading the team and Prof Louise Mallinder insist that the government’s latest approach violates both human rights law and the Good Friday Agreement. They dispute at length the passionate claims of Tory MPs and a number of Ulster Unionists led by Jeff Dudgeon that the draft SHA legacy Bill discriminates against veteran soldiers and encourages “ vexatious prosecutions” against them.
But the team present anew their own radical proposals which might satisfy Conservative and unionist champions of the military’s role. As Prof Mallinder says “Bearing in mind the government’s clear determination to keep soldiers out of prison, we have also reviewed a number of options which would see the Stormont House Agreement implemented in full – but where the current two year sentence before being considered for early release could be reduced to zero.”
The team find nine out of eleven major proposals incompatible with human rights law and the GFA. They hit pay dirt with their own 10 and 11. If a former soldier or RUC veteran pleads guilty to a serious charge no further action would be taken against him if he gives a satisfactory account of his guilt to the information retrieval commission. In a final option the team favour less, he could even be released at the secretary of state’s discretion. The provision for a confession therefore looks like a fig leaf covering an amnesty.
If the government wishes to avert a certain legal challenge against its latest proposals, it might well seize on the following proposals for a case by case amnesty, with or without disclosure.
Proposal 10: Implement the SHA, Reduce Conflict-Related Imprisonment from Two years to Zero, Based on Cooperation with the ICIR (first raised with the Defence Select Committee in 2017).
It is wrong in law to claim that the Early Release Scheme in the GFA designed for paramiltaries after serving two years in prison does not apply to army veterans.
An amended NI Sentences Act would include an amended criterion for the Sentence Review Commission … that would allow even earlier release based on consideration of ‘a statement of full cooperation’ from the Independent Commission on Information Retrieval (ICIR). Immediately following a trial, any individual pleading guilty or found guilty regarding such offences, who had engaged with or who indicated a willingness to engage with ICIR, would be granted immediate temporary release in order to facilitate that engagement.
The Draft SHA Bill.. (would).. ensure that conflict -related offences committed before August 1973 will be treated the same as those committed after that date. Any member of the security forces or paramilitary found guilty will serve a maximum of two years imprisonment if they meet the criteria for early release. The decision on eligibility for release will be taken by the independent Sentence Review Commission. The work of the HIU (including the provision of family reports), the ICIR, OHA, and IRG would be designed to provide a victim-centred service to victims and survivors which promotes reconciliation.
Any individual who was not granted such a ‘statement of full cooperation’, or who refused to engage with the ICIR, would be assessed for eligibility for early release by the SRC in the normal fashion. Such an individual would be liable to serve a maximum of two years imprisonment if deemed eligible for early release as per the terms of the Good Friday Agreement 1998.
The ICIR is also envisaged as a cross-border body underpinned by an international treaty between the UK and Irish governments and requiring separate legislation in being passed in Dáil Éireann. Logically, if a decision was made to permit a reduction in sentences for pre-1998 conflict in the United Kingdom in return for full cooperation with the ICIR, a similar arrangement would be required in the Republic of Ireland.
Proposal 11: Implement the SHA, Reduce Conflict-Related Imprisonment to Zero with no ICIR Cooperation Requirement
The Good Friday Agreement committed both governments to establishing a review process designed to set prospective release dates for all qualifying prisoners.99 It further stipulated that should the circumstances allow it, any qualifying prisoners who remained in custody two years after the commencement of the scheme would be released at that point.
Section 10(8) of the Northern Ireland Sentences Act stipulated that ‘the Secretary of State may by order amend subsections 4-7.’ This means that the two-year time frame can already be reduced to zero by an order in council rather than requiring primary legislation.
The model team identify potential problems over discriminating in favour of military veterans on HR grounds and clearly favour Proposal 10
McEvoy’s team conclude with a substantial sting in the tail. In my view they effectively refute the Newsletter’s campaign claiming discrimination against the security forces and the jingoistic charge of “vexation prosecutions” against army veterans which governs this government’s attitude. One example in detail..
An ‘Imbalanced Approach’ to Legacy Investigations and Prosecutions
Given that the state was directly responsible for at least 360 or 10% of the overall fatalities of the conflict (leaving aside the issue of collusion),33 the fact that almost one third of the cases under investigation by the (PSNI’s Legacy Investigations Branch (LIB) (since 2017) are state focused has been suggested as evidence that such investigations are imbalanced.
Between 1969 and 1974, 170 people were killed by the British army. Sixty-three per cent of these were undisputedly unarmed at the time and only 12% (24 people) were confirmed as armed, with a further 14 listed as ‘possibly armed’. There were no criminal prosecutions of state actors during this period. It is difficult to assert with any credibility that any of these cases were properly investigated, even by the investigative standards of the day, which is why the practice of Royal Military Police investigations was ceased.
More generally, as the official Operation Banner review notes, only a dozen or so serious cases involving Army personnel killing or injuring others came to court during the 30 years of the conflict. In relation to operational shootings the report cites 4 convictions for murder, 1 of which was overturned on retrial. These figures do not appear to include members of the Ulster Defence Regiment.
With regard to more recent investigations, a highly critical report by Her Majesty’s Inspectorate of Constabulary on the work of the Historical Enquiries Team found that ‘state involvement cases had been reviewed with less rigour in some areas than non-state cases’. The former PSNI Chief Constable, Sir Matt Baggott, accepted those criticisms in full and ordered that all 238 military killings should be reviewed afresh. The reason for the higher number of state related cases requiring an effective investigation is the widespread acceptance by criminal justice and legal professionals that they were not properly investigated in the first place.
The DPP has initiated legacy prosecutions in 17 legacy cases; 8 against alleged republican paramilitaries, 4 against alleged loyalists and 5 against British Army personnel (6 soldiers in total, one case involves two soldiers).45 Again, the notion of an imbalance in prosecutions is simply not supported by the relevant data.
In sum, there is no historical or contemporary evidence to support the claim of a witch-hunt in terms of the proportionate number of legacy investigations or prosecutions against state actors
The campaign however might equally claim that their opponents in the argument have vindicated them by recognising that the evidential trail has grown too cold. On the other hand fresh objections may come from Sinn Fein and Finucane Centre that their persistent claims of collusion are unlikely to be further tested.
But one way or another the heat may start to go out of the controversy to make way for grudging recognition of the inevitable.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London