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Baroness Farrington of Ribbleton: My Lords, with the greatest respect, the noble and learned Lord is trespassing on time allotted to others.

Lord Ackner: My Lords, I am trespassing by one minute and I intend to take one more minute.

Noble Lords: Hear, hear!

Baroness Farrington of Ribbleton: My Lords, I am fully aware of that, but I am afraid it is taking the time allotted to others. It is now two minutes over time.

Lord Ackner: My Lords, the noble Baroness overlooks the fact that everybody has not used up their

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ration. As I was saying, I understand that the guardsmen are entering their sixth year in prison and that is the equivalent of an eight or nine-year determinate sentence, one-third being allowed for parole. I therefore conclude as I began by saying that, if the defects were not as they are in our law, they would now have been at liberty.

8.27 p.m.

Earl Attlee: My Lords, I am grateful to my noble friend Lord Campbell of Alloway for raising this issue as an Unstarred Question. I am grateful also to the noble Lord, Lord Gilbert, for recognising the importance of this matter and being in his place tonight.

Time is short, but I am not known for speaking at length. I should like to draw your Lordships' attention to the effect that this matter has on morale in the armed services. Before doing so, I remind the House that, as a serving officer in the TA, I have an interest to declare.

Soldiers on operations are subject to a wide variety of stresses and strains, to which they will readily admit. The most obvious is the pain of separation from their loved ones. Another is the risk of injury, or worse. In that context I draw the attention of the House to the tragic death yesterday of Corporal Gary Fenton who was assisting the RUC. I am sure that the whole House offers condolences to his family. We do not yet know what the full circumstances were so it would be inappropriate to draw any conclusions at this time.

Good performance on operations is important for career reasons--it is called "the right tick in the box". But there is also a secret, dread fear, not often talked about; that is, the fear of misconduct during operations. At the lower end of the scale we are talking about offences such as negligently discharging one's weapon, which could result in a fine of £1,000 and an adverse confidential report. At the higher end we are talking about misinterpreting the rules of engagement, with the tragic results of which we are all aware. Moreover, soldiers can also be in severe difficulties if they fail to open fire when they should. They cannot just play safe.

It is important to understand that, while soldiers will readily accept discipline even if it has to be severe, they are becoming increasingly demoralised, disillusioned and disheartened by this affair. They cannot understand how rehabilitated known terrorists become politicians and terrorist prisoners are released while at the same time these two soldiers, who did not get out of bed that fateful day intending to commit those offences, are still in prison. Perhaps the Minister can explain.

8.29 p.m.

Lord Inge: My Lords, I should declare an interest as I was Chief of the General Staff in September 1992 when the incident involving Guardsmen Fisher and Wright took place and I feel very strongly that these two young guardsmen have suffered real injustice. Therefore, I am very grateful to the noble Lord, Lord Campbell of Alloway, for raising this Unstarred Question.

I sense from discussions that have taken place in this House and in the other place that there is not really an understanding of the demands we placed on our soldiers

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who had to operate in a hostile urban environment in their own country against a ruthless enemy and under constant threat of attack. Instant decisions had to be made in very confused situations. In addition to coping with that, we asked them to cope with the yellow card--when can and when can they not use lethal force? I have certainly asked myself how well I would do in similar circumstances.

Certainly, the Scots Guards were in no doubt about the threat that they faced in September 1992. There had been more than 20 attacks with lethal coffee-jar bombs and 18 incidents of shooting and in one a guardsman had been killed. It is important to reflect again on the incident which the noble Lord, Lord Campbell of Alloway, described so vividly. I think it is totally understandable that Fisher and Wright acted as they did. This was not just a routine patrol. The patrol had two specific tasks in support of the RUC, based on hard intelligence; one concerned an illegal drinking club and the other a search of Flat 5b in Templar House, the block where McBride, the man stopped but not searched, because he ran away, by Sergeant Swift.

I think it is totally understandable that Fisher and Wright reacted as they did. If one thinks about it, the patrol commander had stopped this person who they thought had something under his bomber jacket, They stopped him and then he violently pulled from the patrol commander's ear his earphone, leaped across a wall and ran off. That was very suspicious. Despite what the residents said at the trial, Sergeant Swift and Fisher and Wright are adamant that no proper search took place. They are equally adamant that McBride appeared to be carrying something.

That leads me to the trial itself. I find it incredible that key witnesses were not called: the company commander, Major Page; Company Sergeant Major Goodall--a trained search adviser and expert witness; and Guardsman Williams. But even more incredible is the decision not to call Lance Sergeant Swift, the patrol commander, who had a better opportunity than anyone else to say whether McBride was properly searched and whether he thought McBride was carrying something. I think it is even more incredible given that the judge said that the actual search of the suspect--in other words, saying that the search proved that he was not carrying something--was the crux of the prosecution's case. He seemed to rely more on the evidence of three local residents. The noble Lord, Lord Vivian, described one of those witnesses to the House.

I recognise the difficulty faced by the judge but I sense that he did not really understand either the pressure or how Fisher and Wright thought in the middle of that incident. I am left with the uneasy feeling that, if this had not been a Diplock Court but had been a normal court with a neutral jury, a different verdict would have been returned. My unease is heightened when I know that such an eminent and respected fighter for justice as Sir Ludovic Kennedy supports what has been said.

Very surprisingly, as a number of noble Lords have said, Guardsmen Fisher and Wright are still in prison and have been in prison or under close arrest for very

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nearly six years. Private Thain spent only three-and-a-half years and Private Clegg four years. I find it difficult to understand why.

The noble Earl, Lord Attlee, referred to morale. I endorse what he said. This causes deep concern within the Army, but the Army is a non-political, disciplined service that rightly does not get involved in open critical debate, and its commanders cannot publicly, for reasons that I understand, express their opinion. But you should not, my Lords, underestimate the strength of their feelings. In such cases, those at the sharp end rely on the chain of command--their superior commanders--to fight their corner and look after their interests. This chain of command includes their political masters, because of course it is not military commanders or even the Ministry of Defence that can make decisions in such a case.

The Army's overall record in Northern Ireland has been outstanding. We, the nation, expect the loyalty and dedication of our Army when we, the nation, order it to Northern Ireland. But loyalty should flow two ways--upwards and downwards. In short, any government has a duty to stand by those it orders to discharge its policies. I wonder what Fisher and Wright feel about this. So I, too, hope that the Secretary of State will exercise her discretion without delay and release these two guardsmen; but I think they deserve a retrial as well.

8.36 p.m.

Lord Napier and Ettrick: My Lords, I have read the affidavits and statements that have been placed in the Library and I have listened with great care to all the speeches made so far, particularly the introductory speech of the noble Lord, Lord Campbell of Alloway. It seems quite clear to me that there has been a miscarriage of justice here and that these two Scots Guardsmen, Fisher and Wright, who to date, as we have heard, have spent all but six years in prison, ought never to have been convicted.

How many of your Lordships sitting here this evening have ever tried to put yourselves in their position? Can you imagine what it would be like to be convicted of murder when you were simply carrying out your duty and, as the noble and gallant Lord, Lord Bramall, said, simply as an aid to the civil power? That, let us remember, was the sole reason these two men were in Northern Ireland anyway. It does not really bear thinking about.

In this country we abolished the death penalty since it had become obvious that down the ages men and women had been convicted of murder and were sent to their execution, mainly by hanging, when they were innocent of the crime of which they had been found guilty. In other words, terrible mistakes have been made in the past and terrible mistakes can still be made today. Take, for example, the case of the man who only the week before last was released after completing more than 23 years in gaol for a murder he never committed. His conviction has been found to be unsafe.

In all places over which the Sovereign has dominion justice is done in the name of the Sovereign. She delegates that power to the judiciary and no longer

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interferes with its administration save to be the granter of a royal pardon on the advice of the Secretary of State. Justice is to be administered in an even-handed way both to those who acknowledge allegiance and to those who do not, irrespective of political or any other extraneous considerations.

Although ignorant of the technicalities of defences to killing, it seems to me, as a former regular officer and as a layman, that justice, as ordinarily understood, has not been done as regards the conviction of these two Guardsmen. How could it be when vital witnesses for the defence were never even called? Now that the Government have access to all the relevant papers in this tragic case, I would like to ask the noble Lord the Minister whether he is satisfied that the Army legal services did everything they possibly could to help Guardsmen Fisher and Wright in their defence.

Whatever general arrangements have been made, or may be made, for the release of prisoners is not the point. In the wholly exceptional circumstances that have been outlined to your Lordships this evening what, in the name of common sense, can be the justification for continuing to detain these two men? Is it not reasonable to ask that they be released at once on licence?

8.40 p.m.

Lord Westbury: My Lords, I thank my noble friend Lord Campbell of Alloway for instigating this very important debate. I am speaking tonight because I am appalled at the treatment of Guardsman Wright and Guardsman Fisher. As a Scots Guardsman, I feel that the whole situation has been a slur on their reputation and also on the regiment which has served sovereign and country since 1642 with honour and distinction, in exactly the same way as these two guardsmen were doing in every sense of the word.

It is now known that the evidence procured at the time of the trial was shabby to say the least of it, and that the defence of these two men was inadequate. A great deal of the blame falls on the government of the time. Sadly, Dr. Mowlam has inherited what is called "a hot potato". The whole affair has now obviously become a political football, regrettably at the expense of these two soldiers who have been in prison for nigh on six years. This wicked injustice should now be brought to a sharp conclusion by their immediate release.

There has been a great deal of public opinion expressed and many letters to the Prime Minister and Dr. Mowlam. All the answers have been similarly evasive, calling their prison sentence the result of a heinous crime. This was no crime. The soldiers were doing their duty to the letter. Surely, whatever government have power, they must uphold their Armed Forces to the hilt; otherwise the whole system collapses. Who would join the Army, Royal Navy or Royal Air Force if they felt that they would be let down in this way? Why cannot the Secretary of State for Northern Ireland release these men immediately? It is within her power to do so.

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8.41 p.m.

Lord Thomas of Gresford: My Lords, many of your Lordships tonight have spoken with great military experience and a military background. Perhaps I may also express my concern from a legal background at the result of the proceedings that were brought against Guardsmen Fisher and Wright.

The noble Lord, Lord Vivian, asked the question: why did the judge accept the evidence of the witnesses? Indeed, another of your Lordships posed the question: did the judge understand the position that these guardsmen were in? It has to be said that all the judge had before him was a one-sided account of what had occurred on this particular occasion. As a lawyer, I would focus on the decision by the prosecuting authority to prosecute the two guardsmen for murder.

If one looks at the framework, as excellently outlined by the noble Lord, Lord Campbell of Alloway, what does one have? Peter McBride was quite properly stopped by a guards' patrol in the course of its duty. He gave an address which those guardsmen, together with the RUC, were about to search on the basis that they were premises where it was suspected there were IRA sympathisers. He pulled the earpiece away from the sergeant; he ran away and did not stop when challenged. There is no dispute about those facts. That is the framework within which the decision to prosecute was taken. The overwhelming inference was that he had something serious to hide by the conduct which he exhibited on that occasion.

Yet the prosecution took a firm decision to present the case of murder against these two men based on the evidence of three bystanders. It may be that it can justify that decision on the basis that no bomb was found in the premises into which the young man ran, although there was plenty of time for him to dispose of the bomb if he had one. It may say that, in the heat of the moment, the two guardsmen did not immediately warn their colleagues that a bomb was in the vicinity.

The evidence which those three bystanders gave in court was, in the event, inconsistent with the earliest accounts that they had given to the police. As has been said by the noble and gallant Lord, Lord Napier and Ettrick, the essential point was--did Lance Sergeant Swift search Peter McBride or did he not? That was the factual issue in the case. The very witness who could give evidence to that--the man who either did or did not carry out the search; namely, Lance Sergeant Swift--was not called to give evidence.

It is not enough for the prosecuting authority to say, "Oh well, we handed over his account to the police, given on that same day to the defence for it to use that evidence if it so wished and for it to call the witness if they thought fit". There are many reasons why a defence legal team does not call a witness in defence. As a matter of practice one would hesitate in any case to call witnesses for the defence. In our system the burden is firmly on the prosecution. Although the noble Lord, Lord Westbury, suggested that the guardsmen were inadequately defended, I would not go along with that simply on the basis that statements may have been handed over which did not result in those witnesses being called by the defence.

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When the case reached the appeal stage the findings of fact could not be effectively challenged by the appeal lawyers. Indeed, the Lord Chief Justice, Lord Hutton, said that the main objective facts relating to the killing were not in dispute. He said,

    "No bomb or firearm of any type was found in the course of the search and it was not in dispute that at no time had the deceased been carrying a gun or coffee jar bomb or any type of bomb. Therefore, as the deceased was shot when he was unarmed the appellants, on the objective facts, had no lawful justification for firing at the deceased".
The trial judge was bound by the evidence that was put before him to make findings of fact. The appeal court was equally bound to follow those findings of fact in the absence of any application for further evidence at that stage.

The noble Lord, Lord Chalfont, pointed out the distinction between terrorists who go out intending to kill and soldiers who are intent on keeping the peace when they go out. When a member of the IRA is caught he wishes to be treated as a prisoner of war even though he represents only a tiny unrepresentative terrorist faction. He will not answer an interrogation; he will plead not guilty at his trial and he will not give evidence. He will go to prison where special IRA arrangements are in hand for him to be treated as though he were a prisoner of war and not a common criminal. Then he sits and waits for the armistice.

It is totally unacceptable that a person should assume for himself those privileges when people like the guardsmen who are real soldiers representing their country and who have the support of the whole community behind them, are treated as common murderers and kept in prison for an overlong time. It is time they were released.

8.49 p.m.

Lord Burnham: My Lords, it is not only Members of your Lordships' House who must be grateful to my noble friend Lord Campbell of Alloway for tabling this Unstarred Question; it is also necessary to state that I am very grateful for the manner in which my noble friend opened the debate because reporting of this case has been inadequate. The newspapers have consistently been inhibited by threats of libel and, indeed, by libel cases which have already cost the Daily Telegraph £130,000 plus costs in this and similar incidents, and there is another case which may well cost even more. Therefore, the chance and the hope that my noble friend's remarks will be widely reported must be extremely helpful, as must all the points made by your Lordships.

The case has been explained carefully by noble Lords. We must all be particularly grateful for the remarks of my noble friend Lord Vivian and of the two noble and gallant Lords who have spoken. However, unless we have a retrial, this case is in the past and I believe that I should touch tonight on matters relating to the future.

I am most grateful to the Minister for a letter that he wrote to me a fortnight ago on this case in which he confirmed that Mr. Justice Coghlin was not persuaded

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that a sufficient case had been made out to quash the Secretary of State's decision. I now quote from the Minister's letter, which reads:

    "However, he [Mr. Justice Coghlin] granted a declaration that there has been a failure to provide proper and adequate reasons for the decision to distinguish the applicant's cases from that of Thain and has remitted their cases to the Secretary of State for further consideration in accordance with that Order".
Let us hope that something comes of that because the two guardsmen seem to have been treated in a different manner from Clegg and Thain.

Secondly, I ask the Minister yet again--I have asked this of several Ministers both in this Government and in the previous government--for an absolute and unequivocal declaration that there is nothing political in the failure to release the two men. I accept that the Secretary of State and the previous Secretary of State--I am glad to see him in his place--had a very difficult time. I quote from Republican News (or An Phoblacht) of 11th June 1998:

    "We know they are going to get out, but what really grates is the fact that they are still serving members of the British army. They'll have maybe £60,000 in back money waiting for them when they get out, and we know that their families have been assured that they won't have to go back to Belfast, but that they'll probably be posted to Germany".
I again ask the Minister to repeat that there is nothing political in the decision as it stands at present. I am sure that the Minister has already given this assurance, but I should like to hear it tonight.

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