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Operation Banner in Northern Ireland was the longest continuous deployment of Armed Forces personnel in British military history, during which over 250,000 military personnel served.

Between August 1969 and July 2007 1,441 military personnel died as a result of operations in Northern Ireland. 722 of those personnel were killed in paramilitary attacks. During the same period the British military were responsible for the deaths of 301 individuals, over half of whom were civilians.

In total, it is estimated that 3,520 individuals lost their lives during the Troubles.

Investigation of deaths related to the Troubles

In 2006 the Government set up the Historical Enquiries Team (HET) as part of the Police Service of Northern Ireland (PSNI). It was created in response to judgements at the European Court of Human Rights that were related to the investigation of deaths in which State involvement was alleged. Those judgements found shortcomings which amounted to breaches of Article 2 of the European Convention on Human Rights.

The role of the HET was to examine all deaths attributable to the security situation in Northern Ireland between 1968 and the Belfast Agreement in 1998.

The HET looked into cases on a chronological basis, with some exceptions: previously opened investigations, those with humanitarian considerations, investigations involving issues of serious public interest and linked series of murders. In 2013 Her Majesty’s Inspectorate of Constabulary (HMIC) was commissioned to inspect the role and function of the HET, specifically in relation to its approach to cases involving the security forces. The subsequent report of the HMIC was highly critical of the HET and in 2013 the PSNI announced that it would review all military cases relating to the period 1968 up until the Good Friday Agreement was signed, in order “to ensure the quality of the review reached the required standard”.

The Legacy Investigations Branch

As a result of restructuring and budget cuts to the Police Service of Northern Ireland, the HET was disbanded in September 2014. In its place a much smaller Legacy Investigations Branch (LIB) was formed.

The LIB continues to review all murder cases linked to the Troubles. It uses a case sequencing model, which looks at forensic opportunities, available witnesses and other investigative material when deciding which cases to tackle first. The PSNI has stated that it does not prioritise military cases, which account for approximately 30% of its workload.

Any decision by the LIB to prosecute is referred to the Director of Public Prosecutions for Northern Ireland. The process is independent of the MOD and the Government.

There has been significant criticism, on all sides, of the process by which legacy investigations have been, and continue to be, undertaken. Concerns have been expressed over the credibility and reliability of evidence and witness statements that may be over 40 years old and of the re-opening of investigations that had already concluded. Most notable has been the widespread perception that investigations have disproportionately focused on the actions of the armed forces and former police officers: these account for 30% of the LIB’s workload but only form 10% of the overall deaths during the Troubles.

Recent prosecutions

The perception that investigators are unfairly targeting cases involving military personnel has been emphasised by decisions to bring prosecutions against several former Army personnel. To date, six military personnel have been charged with offences related to the Troubles. In May 2021, however, the first case to come to trial subsequently collapsed after the judge ruled that key evidence in the prosecution’s case was inadmissible. Following a review by the PPS a further two cases, including the case against Soldier F for his role in Bloody Sunday, were halted.

One case continues and is currently before the courts. One further case was halted in October 2021 following the death of the defendant, Denis Hutchings.

In March 2022 the High Court quashed the decision to discontinue proceedings against Soldier F and has called on the PPS to reconsider.

The PPS for Northern Ireland has also sought to make clear that of the 26 prosecution cases brought by the PPS since 2011, 21 of those cases have also involved republican and loyalist paramilitaries. A number of those cases are still ongoing. The Government has been clear that letters of comfort issued to individuals suspected of terrorist offences in Northern Ireland who were “on the run”, do not constitute an amnesty or immunity from prosecution.

Addressing legacy issues

Addressing legacy issues, including the investigation of deaths through a new independent Historical Investigations Unit (HIU), was a key part of the Stormont House Agreement reached in December 2014.

On 11 May 2018 the Northern Ireland Office launched a public consultation: Addressing the legacy of Northern Ireland’s Past. The consultation took forward the proposals set out in the Stormont House Agreement in relation to the HIU. Prior to the consultation’s publication, there was political and media speculation that it would include a statute of limitations to prevent the prosecution of former soldiers for offences connected to the Troubles in Northern Ireland. This idea was supported by some Conservative MPs, including former Defence Secretary Gavin Williamson, but strongly opposed by Sinn Féin and the Irish Government. The Northern Ireland Human Rights Commission advised the Government that any such statute would amount to an amnesty and could be in breach of international law. The DUP leader, Arlene Foster, also raised concerns that a statute of limitations could lead to a general amnesty for all of those involved in the Troubles, including terrorists.

However, the consultation, as published, did not contain proposals for a Statute of Limitations or any form of amnesty.

New decade, new approach

On 9 January 2020 a deal to restore devolved government in Northern Ireland was reached. As part of that agreement the Government committed to publish, within 100 days, legislation to implement the Stormont House Agreement and address Northern Ireland legacy issues.

On 18 March the Government published the Overseas Operations (Service Personnel and Veterans) Bill. Despite suggestions that it may include Northern Ireland within its provisions, legacy prosecutions in relation to the Troubles were excluded.

In a Written Ministerial Statement published alongside the Bill, the Secretary of State for Northern Ireland said that the Government wanted to ensure “equal treatment of Northern Ireland veterans and those who served overseas”. Having considered the responses to the 2018 consultation, the Government subsequently proposed a change of focus in its approach to legacy issues. Under revised proposals, a single, independent, body would be established to oversee and manage the process of information recovery. Only cases in which there was a realistic prospect of a prosecution, as a result of new compelling evidence, would proceed to a full police investigation. Cases which did not reach this threshold, or were not referred for prosecution, would be closed and no further investigations or prosecutions would be possible. A number of campaigners called the Governments proposal to close the majority of unsolved cases relating to The Troubles, a “betrayal” of the Stormont House agreement.

A new way forward?

Legislation has not been forthcoming and in July 2021 the Government presented a new set of proposals for taking forward legacy investigations. Setting aside the proposals established in the Stormont House Agreement, these new measures propose:

  • an independent information recovery body
  • a statute of limitations that would apply equally to all parties linked to all Troubles-related incidents. This would bring an immediate end to all criminal investigations into Troubles-related offences and remove the prospect of future prosecutions. It would not be applied retrospectively and therefore cases currently before the courts would continue. No pardons would be granted.
  • An oral history initiative will be established.
  • All current and future civil cases and inquests related to the Troubles will end.

The proposals were met with criticism and anger, however, from Northern Ireland’s political parties, the families of victims of the Troubles on all sides, and campaign and human rights groups. Questions have also been raised over the compatibility of the proposals with the European Convention on Human Rights.

Following a period of engagement with Northern Ireland stakeholders, legislation was introduced on 17 May 2022. The Northern Ireland Troubles (Legacy and Reconciliation) Bill takes forward most of the proposals set out in July 2021. In response to widespread criticism, however, a statute of limitations equally applicable to all parties, is no longer being introduced. Instead, the Bill proposes that immunity from prosecution will only be granted on a case-by-case basis to those individuals who cooperate with any investigation by the proposed Independent Commission for Reconciliation and Information Recovery.

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