Investigations into fatalities in Northern Ireland involving British military personnel Contents

2Investigating historic allegations in Northern Ireland

The Historical Enquiries Team

8.The Historical Enquiries Team (HET) was established in 2005, by the then Chief Constable of the Police Service of Northern Ireland, Sir Hugh Orde, with the following objectives:

to assist in bringing a measure of resolution to those families of victims whose deaths are attributable to “the troubles” between 1968 and the signing of The Belfast Agreement in April 1998;

to re-examine all deaths attributable to “the troubles” and ensure that all investigative and evidential opportunities are subject to thorough and exhaustive examination in a manner that satisfies the Police Service of Northern Ireland’s obligation of an effective investigation as outlined in Article 2, Code of Ethics for PSNI; and to do so in a way that commands the confidence of the wider community.4

9.The HET was established with a team of 100 investigators and a budget of over £30m. Its first objective was to review and investigate the 3,000-plus unsolved murder cases from the period 1969–1998 with a deadline of 2011. This was subsequently extended to meet the concerns raised by investigators working to that timetable.5

10.In 2012, acting upon the request of the Chief Constable of the PSNI, the then Justice Minister of Northern Ireland, David Ford MLA, asked Her Majesty’s Inspectorate of Constabulary to review the HET in order to establish whether the HET’s investigations conformed to current policing standards, whether there was an appropriate level of consistency in cases, and—in respect of cases relating to state involvement—whether the investigations were compliant with the ECHR.

11.The HMIC report found that the HET treated cases relating to state involvement differently and “less rigorously” than cases where there was no state involvement and that its approach to state involvement cases was “inconsistent with the UK’s obligations under Article 2 ECHR”.6 HMIC further found that the deployment of former RUC and PSNI officers in state involvement “easily gives rise to the view that the process lacks independence”.7 In 2014, it was announced that, as part of a broader restructuring of the PSNI, the HET would be wound up and replaced with a smaller Legacy Investigation Branch (LIB).8

12.Furthermore, following the HMIC report into the HET, the then Chief Constable of the PSNI, Sir Matt Baggott, directed that the 32 completed reviews of deaths attributed to Security Forces be re-examined as “public confidence in the HET’s handling of military cases had been challenged”.9

The Legacy Investigations Branch

13.More than 3,200 unsolved homicides were committed in Northern Ireland during the period in question. The review of these cases and, where credible evidence exists, the further investigation of them is the responsibility of the LIB of the PSNI. The LIB has four overarching strategic objectives:

a)Review and Investigate—our commitments to detecting offenders;

b)Record and Communicate—our commitments to preventing crime;

c)Identify and Cooperate—our commitments to protecting communities; and

d)Manage and Engage—our commitments to efficiency, effectiveness and legitimacy.10

14.Cases are managed and progressed according to a Case Sequencing Model, which focuses on factors such as whether a case involves contemporary persons of interest, forensic potential, criminal justice status and case progression.11 In its written evidence to the Committee, the PSNI provided details as to the number of cases that have either been completed or are currently ongoing.12

Table 1: Completed Caseload

Attribution

Republican

1,038

Loyalist

536

Security Forces

32

Unknown

9

Source: Police Service of Northern Ireland (IFB0003)

Table 2: Remaining Caseload

Attribution

Republican

379

Loyalist

230

Security Forces

283

Unknown/None

31

Source: Police Service of Northern Ireland (IFB0003)

Table 3: Active Caseload

Attribution

Republican

8

Loyalist

1

Security Forces

5

Source: Police Service of Northern Ireland (IFB0003)

15.There are 55 detectives in the LIB who are divided into four teams. Only one, Team C, is focused on investigating deaths attributed to the Army. Team C consists of 13 detectives and is investigating the killings of 13 civilians by members of the Parachute Regiment on Bloody Sunday. It is also investigating the murders of 10 Protestant men by the IRA at Kingsmills in 1976.13 While these figures show that investigations into former army personnel account for a minority of LIB cases, they still amount to a disproportionately high number of investigations (30% of investigations) when compared to the total level of killings attributed to the Army (10%).

The status quo: a skewed system?

16.As we mention earlier in this report, concerns were raised about the balance of the investigations conducted by the HET, and similar concerns have arisen about the LIB investigations. James Brokenshire, Secretary of State for Northern Ireland expressed his concern in the following terms:

The existing mechanisms for investigating incidents which occurred during the Troubles are disproportionately focused on the actions of the Armed Forces and former police officers, rather than the terrorists who were responsible for 90 per cent of deaths.14

17.During a Westminster Hall debate on the Stormont House Agreement on 10 January 2017, Sir Jeffrey Donaldson MP claimed that LIB’s investigations had focused disproportionately on the Army:

The reality today is that 90% of the resources of the Legacy Investigation Branch—I stand open to challenge on this—are devoted to investigating 10% of the deaths during the troubles, and 10% of its resources are devoted to investigating 90% of the deaths.15

On 2 February 2017, the BBC challenged these claims. According to its analysis, killings by the Army account for about 30% of its legacy workload. For example, of the 1,118 deaths not previously reviewed, or completed, by the HET, “530 were carried out by republicans, 271 by loyalists and 354 by the security forces”, with 33 unknown.16

LIB: an independent investigation?

18.On 3 March 2017, the Northern Ireland High Court ruled that the PSNI-led LIB lacked the necessary independence to oversee further enquiries into the death of Jean Smyth-Campbell, a woman suspected of being shot dead by the military in west Belfast in 1972. At the time of her death, the RUC told her family that the assailant was probably an IRA gunman, with the HET reaching the same conclusion in 2008. However, it has been suggested that the Military Reaction Force (MRF) may have been responsible.17 Delivering his judgement, Mr Justice Maguire ruled that the PSNI’s Legacy Investigation Branch (LIB) “lacks the requisite independence” required by Article Two of the European Convention of Human Rights.18

The potential for prosecutions

19.The PSNI’s written evidence stated that “the older a case is the harder it is prosecute”, and that “judicial closure [was] increasingly unlikely in the majority of cases”.19 The number of prosecutions therefore are extremely low,20 but the LIB is now bringing cases to trial.

20.Following the attempted murder of John Pat Cunningham in 1974, Mr Dennis Hutchings, who was serving in the Life Guards, was subject to an investigation by the RUC and the Director of Public Prosecutions. No charges were brought but Mr Hutchings was investigated again in 2011 by the HET. He was told then, that no further action was taken. Despite this, in 2015 the LIB reopened the case. Mr Hutchings, who is now in his 70s and is suffering from cancer, was arrested during a dawn raid—41 years after the incident—and taken to Northern Ireland and charged with the attempted murder of John Pat Cunningham. In March 2017, Mr Hutchings was told that he would stand trial.21

21.In 2016, the Public Prosecution Service announced that it would be prosecuting two retired soldiers from the Parachute Regiment, for the death of IRA Commander John McCann in 1972.22

The Stormont House Agreement and a Historical Investigations Unit

22.In 2014, the Stormont House Agreement (SHA), reached between the Northern Ireland Executive parties and the UK and Irish Governments, agreed to establish a Historical Investigations Unit (HIU), underpinned by legislation, “to take forward investigations into outstanding Troubles-related deaths”. According to the terms of the SHA, “the body will take forward outstanding cases from the HET process, and the legacy work of the Police Ombudsman for Northern Ireland (PONI)”.23 The HIU will combine the outstanding cases into one chronological list.

23.The timeframe for establishing the HIU was originally October 2016. However, progress on implementing this aspect of the SHA has stalled amid the broader problems with power-sharing in Northern Ireland which have seen the collapse of the Executive and failure, following an extraordinary election, to fill the offices of First and Deputy First Minister within the statutory period. Nonetheless, the Prime Minister has re-affirmed the Government’s commitment to the scheme and, in particular, to investigating cases in a chronological order.24

24.So far, the overall process of investigations into fatalities in Northern Ireland has been deeply unsatisfactory. The instability of the investigatory bodies, the limited resources and manpower provided to them, and continuing question marks over the independence of the investigations has delivered a vicious cycle of investigation and re-investigation that fails both former service personnel and the families of those who died.

25.It is clear that the status quo is not sustainable. The Legacy Investigation Branch was never intended to be more than a short-term mechanism to bridge the gap until the Stormont House Agreement was implemented. It is morally indefensible for former service personnel to be caught in limbo, with the threat of investigation hanging over them. The Government in the next Parliament must bring forward legislative proposals—as a matter of urgency—to remedy the situation. We outline a menu of possible options in the final chapter of this report.


5 Commission for Victims and Survivors (2012). Research on Historical Investigations and Information Recovery, p.8

8 Cromie, C. (30 September 2014). PSNI cuts 300 jobs and axes Historical Enquiries Team, Belfast Telegraph

9 IFB0003

11 Police Service of Northern Ireland Legacy Investigation Branch (October 2015), Case Sequencing Model, p.2

12 IFB0003

13 IFB0003

14 WQ60649 (23 January 2017)

15 Sir Jeffrey Donaldson MP, HC Deb (Hansard), 10 January 2017, col.68WH

16 Kearney, V. (2 February 2017), Troubles legacy cases bias disputed by figures, BBC News

19 IFB0003

22 MacDonald, H. (16 December 2016). Two British soldiers to be charged over IRA leader’s 1972 murder, The Guardian

24 Theresa May, HC Deb (Hansard) 22 February 2017, col.1015




25 April 2017