Government's Troubles amnesty legislation 'unlawful' - but ICRIR could 'carry out effective investigations,' judge rules

Mr Justice Colton declared that parts of the legislation aimed at dealing with the consequences of the conflict in Northern Ireland breach the European Convention on Human Rights.

He also held that a block on paying compensation for a miscarriage of justice to men cleared of escaping from lawful custody during the 1970s is legally flawed.

In a separate finding, the judge concluded that a truth recovery body at the centre of the plans has sufficient independence and powers to effectively investigate Troubles-related deaths and offences.

The Northern Ireland Troubles (Legacy and Reconciliation) Act, which came into effect last September, offers a conditional amnesty to those accused of crimes during more than 30 years of sectarian violence.

It will also end future civil litigation and inquests into conflict-related deaths not completed before the cut-off date of May 1.

With victims organisations, political parties and the Irish Government united in opposition, a raft of judicial review challenges were brought by some of those who either lost loved ones or were injured in the Troubles.

They argued that the legislation is unconstitutional, denies access to justice and incompatible with the European Convention on Human Rights.

The British Government has described the Act as an attempt to draw a line under Northern Ireland’s troubled past.

It involves the establishment of an Independent Commission for Reconciliation and Information Recovery (ICRIR) headed up by former Lord Chief Justice of Northern Ireland Sir Declan Morgan.

Self-confessed perpetrators who fully cooperate with the legacy body may be offered an amnesty from prosecution.

Lawyers for some of those who took the legal action claimed the objective of the Act is to protect British Army veterans and other security force personnel from prosecution for any wrongdoing in Northern Ireland.

Delivering judgment in a packed courtroom, Mr Justice Colton stated: “There is no evidence that the granting of immunity under the 2023 Act will in any way contribute to reconciliation in Northern Ireland. Indeed, the evidence is to the contrary.”

Even though he accepted the importance of providing information on how people were killed or injured during the Troubles, the judge said victims will have no say in applications for amnesties which could be made at the last minute by perpetrators facing the threat of imminent prosecution.

Those provisions of the Act are incompatible with Articles 2 and 3 of the European Convention on Human Rights (ECHR), as well as Article 2 of the Windsor Framework, and should be disapplied, he confirmed.

In a further declaration, the court ruled that sections of the legislation shutting down Troubles-related civil actions brought after May 17, 2022 and prohibiting any new claims lodged after November 18, 2023 is incompatible with Article 6 of the ECHR and the Windsor Framework.

Mr Justice Colton said the interference with the rights of those seeking vindication against state agencies via civil litigation is unlawful and cannot be justified.

In a legal battle ultimately expected to reach the Supreme Court, proceedings issued by Martina Dillon, John McEvoy and Lynda McManus were among the lead cases.

Ms Dillon’s 45-year-old husband, Seamus, was shot dead in a loyalist attack at the Glengannon Hotel in Dungannon, County Tyrone, in 1997.

Mr McEvoy survived a loyalist shooting on the Thierafurth Inn in Kilcoo, County Down, in 1992 which claimed the life of 42-year-old Peter McCormack.

Ms McManus's father, James, was among those wounded in the Sean Graham bookmakers massacre earlier in the same year.

Five people were murdered when loyalist gunmen opened fire inside the betting shop on the Ormeau Road in south Belfast.

Legal action was also taken by the mother of IRA man Pearse Jordan, who was shot dead by an RUC officer as he fled from a hijacked car on Belfast’s Falls Road in November 1992.

With two members of the police force reported to prosecutors for suspected perjury and perverting the course of justice offences, the Act would prevent them from facing potential charges or trial.

Mr Justice Colton ruled that the bar on any criminal investigation, prosecution or punishment of offenders unlawfully breached the human rights of the dead man’s mother, Teresa Jordan.

During the eight-day hearing, the court was told the Act has subjected anguished victims to further secondary trauma by closing down their hopes of ever securing justice.

The new law is flawed, legally offensive and “legitimises” killings carried out by British soldiers who can “triumphantly” glorify their crimes without remorse or fear of prosecution, it was claimed.

The immunity scheme was said to violate the State’s legal obligation to impose proper sentences for the purposes of retribution and deterrence.

Counsel for the UK Government argued that the Act was aimed at achieving a “reset” to the foundations of the Good Friday Agreement.

He insisted the legislation was an attempt to achieve reconciliation while preserving victims’ rights, rather than being all about protecting security force veterans from prosecution.

Perpetrators who fail to earn the conditional amnesties are still at risk of long-term imprisonment, it was contended, providing an incentive for offenders to reveal the full truth about their conflict-related crimes.

The court also heard that the ICRIR truth recovery body at the centre of the new law has greater resources to examine deaths and will be potentially more effective than Troubles-era inquests and civil actions.

Recognising that many families were promised inquests into the death of their loved ones, Mr Justice Colton acknowledged their opposition to the new scheme.

“For many that promise will be broken,” he said.

“Their much sought after opportunity, in the form of an inquest, will be denied.

“Instead, the state has provided through primary legislation in Parliament an alternative means by which to carry out its Article 2/3 obligations.”

Ultimately, however, he concluded that the Commission has sufficient independence and powers of disclosure to carry out effective investigations.

“Should it fall short of its obligations under Article 2/3 then it will no doubt be subject to the scrutiny of the court,” he added.

Another part of the case centred on the blocking of compensation claims by former Sinn Fein President Gerry Adams and others unlawfully interned without trial.

Patrick Fitzsimmons issued proceedings over legislative provisions which stopped him from obtaining a pay-out for a miscarriage of justice.

He was among a group of men whose convictions for escaping from the Maze Prison while held there without trial during the 1970s were overturned in 2022.

It has now been established that the former internees were never lawfully detained because their Interim Custody Orders (ICOs) were not personally authorised by the Northern Ireland Secretary at the time, William Whitelaw.

The outcome was based on a previous Supreme Court decision in a case taken by Mr Adams.

In 2020 justices quashed the former Sinn Fein President’s convictions for attempted escapes after finding that his ICO was invalid on the same grounds of being signed by a junior minister.

But under the new Act a block has been imposed on paying any damages to the unlawfully imprisoned internees for false imprisonment.

According to the Government’s case, Parliament was legally entitled to take “corrective action” in shutting out claims for compensation made on a technicality.

However, Mr Justice Colton made a further declaration that the terms of the Act relating to ICOs were in breach of the ECHR.

Referring to Mr Fitzsimmons, he pointed out: “The fact remains that as a matter of law the applicant has been acquitted of the offence which forms the basis of his claims.

“He should be treated as such accordingly.”