The investigation of former British soldiers who served in Northern Ireland during “The Troubles” is currently receiving a significant amount of media and parliamentary attention as a result of several ongoing court cases. It is, however, the result of a process which began over a decade ago.
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Operation Banner in Northern Ireland was the longest continuous deployment of Armed Forces personnel in British military history and involved over 250,000 military personnel.
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, around 3,520 individuals lost their lives during the Troubles.
Military law and the rules of engagement
Military personnel are, at all times, subject to both Service law and civilian law, wherever they are serving in the world. As such, Armed Forces personnel are not immune from prosecution for offences committed whilst serving.
For every military operation personnel are issued with a specific set of Rules of Engagement which establish the circumstances and limitations under which personnel can use armed force. They are operation, not Service, specific and are intended to help commanders and soldiers to operate within the law or any political restraints under which they may be operating. They do not, however, have any legal force.
The Rules of Engagement for personnel serving in Northern Ireland were contained in what was commonly referred to as ‘The Yellow Card’. The original version of the Card, which extended to 21 distinct rules, was considered too detailed and complex, and was subsequently amended in 1980 to contain just 6 rules. Among them was the directive that only the minimum force necessary was to be used and that firearms should only be used as a last resort. The Card was amended again in 1994, following a court judgement in the case of Private Lee Clegg the previous year.
Prosecutions of Armed Forces personnel during the Troubles
Any fatalities involving the Armed Forces were investigated by the Royal Ulster Constabulary (RUC) at the time and, in some cases, prosecutions were brought against military personnel.
In most cases those fatalities were a direct result of operations and “centred around the key issue of whether the soldier had the right to open fire in the particular circumstances pertaining at the time”. This resulted in a number of convictions, although in the majority of cases the Director of Public Prosecutions for Northern Ireland directed that there was no case to answer, or the defendants were acquitted at trial.
Good Friday Agreement and “On the Runs”
The 1998 Good Friday Agreement made no provision for the investigation or prosecution of former members of the Armed Forces, focusing instead upon the early release of prisoners affiliated to paramilitary organisations. There was no amnesty for crimes which had not yet been prosecuted.
From 2000 to 2014, the UK Government operated an administrative scheme by which individuals suspected of terrorism crimes in Northern Ireland could find out whether they were at risk of arrest or prosecution if they returned to the UK. The collapse of a trial in 2014 led to a judge-led review. The report of that review criticised the scheme for systematic failings, but emphasised that it did not constitute an amnesty or immunity from prosecution.
Investigation of deaths related to the Troubles
In 2006 the Historical Enquiries Team (HET) was set up by the Government as part of the Police Service of Northern Ireland (PSNI) in response to judgements at the European Court of Human Rights related to the investigation of deaths in which State involvement was alleged. Those judgements found various shortcomings which amounted to breaches of Article 2 of the European Convention on Human Rights relating to the protection, by law, of the right to life.
The role of the HET was to examine all deaths attributable to the security situation that occurred 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 2012 the Minister of Justice for Northern Ireland commissioned Her Majesty’s Inspectorate of Constabulary (HMIC) to inspect the role and function of the Historical Enquiries Team. The inspection focused on whether the HET’s approach to reviewing cases involving the security forces conformed to current policing standards and policy; if it adopted a consistent approach to all cases and if the HET’s review process met the requirements that would ensure its compliance with Article 2 of the ECHR. 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 budget cuts to the Police Service of Northern Ireland, the HET was disbanded in September 2014. In its place the PSNI stated that a much smaller Legacy Investigations Branch (LIB) would be formed.
The LIB continues to review all murder cases linked to the Troubles. That review does not examine cases chronologically but 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 MOD, and the British Government, is entirely independent of this process.
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 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, which account for 30% of the LIB’s workload but only form 10% of the overall deaths during the Troubles.
The perception that investigators are unfairly targeting cases involving military personnel has been confounded by decisions over the last few years by the Director of Public Prosecutions for Northern Ireland to bring prosecutions against a number of former Army personnel. To date, six former military personnel have been charged with offences relating to the Troubles, including the events of Bloody Sunday. The most recent prosecution case was announced in April 2019.
However, the PPS for Northern Ireland has also sought to make clear that of the 26 prosecution cases brought since 2011 in relation to legacy issues, 21 of those cases have involved republican and loyalist paramilitaries and that five of those cases are ongoing.
Addressing legacy issues
Addressing legacy issues, including the investigation of deaths, was a key part of the Stormont House Agreement reached in December 2014.
That agreement set out various detailed measures, including the establishment of a new independent Historical Investigations Unit (HIU). That unit will take forward investigations into outstanding deaths from the Troubles, including outstanding cases from the HET process and the legacy work of the LIB and the Police Ombudsman for Northern Ireland. Families may also have other, previously completed, cases considered for criminal investigation by the HIU if there is new and credible evidence which was not previously available to the HET/LIB. In respect of its criminal investigations, the HIU will have full policing powers and will work through its case load in chronological order. It must complete its work within five years and it will be overseen by the Northern Ireland Policing Board. Any decisions to prosecute will be taken by the Director of Public Prosecutions.
On 11 May 2018 the Northern Ireland Office launched a public consultation: Addressing the legacy of Northern Ireland’s Past. The consultation takes forward the proposals set out in the Stormont House Agreement in relation to the Historical Investigations Unit (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 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. But it did welcome views on alternatives to the institutions that have been proposed. The Defence Select Committee has been critical of the consultation’s failure to include a comprehensive section on alternative approaches, a number of which were set out in the Committee’s report into Northern Ireland in 2017.
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, with a greater emphasis, going forward, on information recovery. A single, independent, body would be established to oversee and manage that work. Only cases in which there is a realistic prospect of a prosecution as a result of new compelling evidence would proceed to a full police investigation and if necessary, prosecution. Cases which do not reach this threshold, or are not referred for prosecution, would be closed and no further investigations or prosecutions would be possible.
It is unclear when legislation relating to Northern Ireland will be introduced, although Baroness Goldie suggested on 16 March 2020 that “a Stormont Bill” was “likely to come before Parliament imminently”.
A number of campaigners have called the Governments proposal to close the majority of unsolved cases relating to The Troubles, a “betrayal” of the Stormont House agreement.