Investigations into fatalities in Northern Ireland involving British military personnel Contents

4The space for legal imagination: options for the Government

39.As we mention in the previous section, the obligation to investigate fatalities at the hands of state actors, under the ECtHR’s Article 2 case law, does not amount to an obligation to prosecute.43 However, the cases of Mr Dennis Hutchings and others have demonstrated that prosecutions can take place. If the Government is to provide suitable support for former serving personnel, to borrow Professor McEvoy’s phrase, the “space for legal imagination” resides, in responding to historic allegations against former service personnel.44 This chapter explores this space for legal imagination and the possible options for the Government to protect service personnel. We do not believe that the status quo is a credible option and note that the Secretary of State for Northern Ireland, Rt Hon James Brokenshire MP, has himself claimed that it is unsustainable.45

Option One: A statute of limitations

40.During an Opposition Day debate on historical cases involving Armed Forces personnel on 23 February 2017, Sir Jeffrey Donaldson MP raised the idea of a statute of limitations. Such a statute would not, he insisted, amount to an amnesty and would only apply to soldiers and police officers who have “previously been the subject of full police investigations”.46 As such, it would not create a reciprocal protection, or amnesty, for former paramilitary combatants. As Sir Jeffrey emphasised, the Stormont House Agreement “made clear that there would be no amnesty for terrorist-related crimes”.47 Rather, he stressed, that the proposal for a statute of limitations was an attempt “to protect the men and women who served our country” and who were not provided with the “special provision” that had been previously made for terrorists (see paras. 46–47).48 This is in contrast to proposals made in 2013 by the Attorney General of Northern Ireland, John Larkin for legislation enacted either at Stormont or Westminster, “to end all prosecutions, inquests and public inquiries related to the Troubles”.49

41.During our evidence session we questioned our witnesses on whether a statute of limitations could be permissible under the UK’s existing international obligations. According to Professor McEvoy and Professor Rowe, any such statute would need to apply to both state and non-state actors, and would need to incorporate a truth recovery mechanism.50 Were a statute of limitations to apply to just state actors then it would leave the UK open to the charge of state impunity.51 With regards to truth recovery, they suggested that any statute of limitations could be coupled with a body such as the Independent Commission on Information Retrieval which was proposed in the Stormont House Agreement.52

42.We also questioned our witnesses on the viability of a statute of limitations which covered all service personnel, rather than just those who served in Northern Ireland, for activities that happened, for example, over twenty years ago. According to Professor Rowe, any such statute would need to include certain exceptions to avoid engaging the Rome Statute and the International Criminal Court. For example, it would not be legally permissible for such a statute to exempt soldiers for prosecutions from war crimes, crimes against humanity and genocide.53

Option Two: Implement the Stormont House Agreement

43.The Government’s favoured approach is to carry on, as at present, investigating and prosecuting cases from up to almost 50 years ago under the terms of the Stormont House Agreement. On 17 January 2017, the Secretary of State for Northern Ireland gave a statement to the House of Commons updating Members on the early Northern Ireland Assembly election that would be held following the collapse of the power-sharing Executive. In that statement, he argued that the proposed Historical Investigations Unit represented a “fair, balanced and proportionate approach” to dealing with the legacy of the past.54

Option Three: Implement the SHA and review the Northern Ireland Sentences Act 1998

44.An alternative option, put forward by Professor McEvoy, would be to ‘let the rule of law run its course’, albeit in a context where the terms of the Stormont House Agreement are implemented in full and where the terms of the Northern Ireland Sentences Act are reviewed. Under this model, the Stormont House Agreement would be fully implemented, with great care taken to ensure the investigatory mechanisms are Article 2 compliant and where the HIU is able to undertake its work free from political interference. If those investigations result in sufficient evidence, then cases would be referred to the DPP who would then make the decision whether to prosecute in the usual fashion.

45.While this would allow the Government to fulfil its Article 2 obligations to investigate killings by state actors, Professor McEwen suggested that the Government could reform sentencing procedures to take into account factors such as the age and health of the defendants, the amount of time that has lapsed since the offence and whether the individual in question has, for example, cooperated fully with the ICIR.55

46.One potential platform through which to do this could be the Northern Ireland (Sentences) Act 1998. The Act makes provision for the early release on licence of prisoners convicted of ‘scheduled offences’. Qualifying prisoners apply to the Sentences Review Commission (SRC) for early release and have to satisfy the following conditions for eligibility:

47.While the Act has been associated with the release after two years of former paramilitaries, Professor McEvoy argued that there was nothing in the Act that prevented it from applying to former police officers and soldiers too.57 Indeed, he highlighted that, at the time the Act was passed, there were two soldiers in prison, with an expectation that those two individuals would be released under the process. Instead, they were released via the Royal Prerogative of mercy.58

48.Professor McEvoy argued that the criteria used by the Sentences Review Commission could be amended to include a number of additional criteria including the age and health of the defendants and the time that has elapsed since the offence took place. This could be combined with the Independent Commission on Information Retrieval, with compliance with this body a potential additional criterion that the Commission could consider.59

Option Four: Cease investigations

49.A final option would be to cease investigations into former service personnel and stop complying with the ECtHR’s interpretation of our Article 2 obligations. A precedent for such an approach would be the ECtHR’s decision in Hirst v UK No.2 and Greens and MT that the UK’s blanket ban on prisoner voting was in breach of Protocol 1 Article 3 of the ECHR. Despite these rulings the UK still maintains the ban.60

50.Should the UK cease investigations and the ECtHR judge that this constituted a violation of Article 2, the UK could be open to sanctions, including suspension or expulsion from the Council of Europe (CoE) or from the Parliamentary Assembly of the Council of Europe (PACE). For example, Turkey was suspended from PACE following a military coup in 1980, while the voting rights of the Russian delegation to PACE were suspended in 2014 following the annexation of Crimea.61 A far more likely outcome, however, would be the potential for litigation resulting in the UK Government being ordered to pay “just satisfaction”, a form of compensation. For example, in October 2005, the ECtHR awarded Hirst €23,000 in costs and expenses.62

51.It is clear from the experience of these legacy investigations that, unless a decision is taken to draw a line under all Troubles-related cases, without exception, they will continue to grind on for many years to come—up to half-a-century after the incidents concerned.

52.Accordingly, we recommend the adoption of Option One—the enactment of a statute of limitations, covering all Troubles-related incidents, up to the signing of the 1998 Belfast Agreement, which involved former members of the Armed Forces. This should be coupled with the continuation and development of a truth recovery mechanism which would provide the best possible prospect of bereaved families finding out the facts, once no-one needed to fear being prosecuted.

53.Although it is beyond the strict remit of the Defence Committee, we would encourage the next Government to extend this provision to include former members of the Royal Ulster Constabulary and other former security personnel. It will also be a matter for the next Government to decide, after appropriate consultations, whether the statute of limitations should also cover all Troubles-related incidents.

54.If the 1998 legislation had not ensured that future convictions for terrorist crimes—however heinous—would result in nothing more than a short prison sentence, then there would be a case for arguing that natural justice required investigations to continue, no matter how long after the event.

55.We believe that to subject former Service personnel to legal pursuit under the current arrangements is wholly oppressive and a denial of natural justice. It can be ended only by a statute of limitations. Our expert witnesses agreed that the UK Parliament has it entirely within its power to enact such a statute and we call upon the Government in the next Parliament to do so as a matter of urgency.

43 McEvoy, K. and L. Mallinder, (2013). Truth, Amnesty and Prosecutions: Models for dealing with the past. Queens University Belfast, pp.2–4; see also: European Court of Human Rights, Case of Finucane v The United Kingdom (2003), Reports of Judgments and Decisions 2003-VIII, para 89, European Court of Human Rights, Case of Brecknell v The United Kingdom (2007) All ER(D) 416 (Nov), para 66.

44 Q25

45 James Brokenshire, HC Deb (Hansard) 23 February 2017, cols.1193–99

46 Sir Jeffrey Donaldson, HC Deb (Hansard) 23 February 2017, cols.1190–92

47 Sir Jeffrey Donaldson, HC Deb (Hansard) 23 February 2017, cols.1190–92

48 Sir Jeffrey Donaldson, HC Deb (Hansard) 23 February 2017, cols.1190–92

49 See: Kearney, V. (20 November 2013). NI attorney general John Larkin calls for end to Troubles prosecutions, BBC News

50 Qq98, 108–110

51 Q108

52 Q108

53 Qq113–114

54 James Brokenshire MP ,HC Deb (Hansard) 17 January 2017,col.783

55 IFB0002

56 Northern Ireland (Sentences) Act 1998, section 3

57 Q101

58 Q101

59 IFB0002

60 See; Simson Caird, J. (15 February 2016). Prisoners’ voting rights: developments since May 2015, House of Commons Library Briefing Paper: Number CBP 7461

61 Miller, V. (18 April 2011). European Court of Human Rights rulings: are there options for governments, House of Commons Library Standard note: SN/IA/5941; Gardner, A. (10 April 2014). Russia suspended from Council of Europe body, Politico

62 See: Miller, V. (18 April 2011). European Court of Human Rights rulings: are there options for governments, House of Commons Library Standard note: SN/IA/5941

25 April 2017