Ben Lowry: The legacy scandal is much wider than just the trials of Troubles veterans

The group wants Downing Street to know that, with 40 parliamentary supporters already, it could defeat Boris Johnson if he fails to protect veterans (the prime minister has a majority of 80, which means that if Tory 40 MPs change sides in a vote he can lose).

Now that the Tory Party has made electoral inroads into traditionally Labour areas on the basis of traditional patriotic values, there is a heightened concern that a failure to protect veterans who served in Northern Ireland will cause anger among these new voters, as well as in traditional Tory heartlands.

The coming trials of soldiers on charges including murder for Troubles killings, the first of which commences next month, is certain to heighten such anxiety.

There will be anger in Northern Ireland too, when people across the community begin to focus on the context of these trials.

Many other veterans face investigations for single killings, often carried out with no pre-meditation in a chaotic situation which they did not ask to be in and for which they were ill trained, yet almost no terrorist leader has ever faced a trial on a charge commensurate with their violence — the pre-meditated plotting not of one murder, but scores or hundreds of them.

Then there is the gross imbalance in historic prosecutions.

Again and again it is said that there is no such imbalance, and figures are cited that show roughly a similar number of prosecution of loyalists, republicans and soldiers.

We will shortly be analysing the prosecution statistics. In the meantime, consider if there were, say, seven republicans and five soldiers prosecuted for serious historic offences (as is roughly the figure).

Any such prosecution ratio is imbalanced because the state only carried out 10% of the Troubles killings — all of them tragic but most of them legal.

So even if 90% of prosecutions were terrorist and 10% state it would be imbalanced because it would imply that all state killings were illegal. It is all the more imbalanced if the numbers of prosecutions are largely equal.

Republicans say that thousands of paramilitaries were jailed while almost no soldiers were so.

But that, while it is true, raises several further points.

First, why does the UK not challenge the implied narrative that almost all state killings were illegal? Republicans say that the state was wrong even to kill the notorious IRA murder gang shot at Loughgall as it tried to blow up a police station.

Second, is this process about balancing up the fact that thousands of paramilitaries went to jail and state forces did not?

If so then we need to be clear that the imbalance in prosecutions is, according to that narrative, appropriate. In which case why are we being told there is no imbalance in prosecutions? We should be told that there isa justified imbalance.

The reasons for the imbalance are many, and are not due to a prosecuting bias, but rather due to other factors, such as the deluge of investigations into past state killings.

And that brings us on to another key problem with both the current approach to legacy investigations, and the planned process under the Stormont House Agreement: the state is being subject to an array of sub criminal investigations.

The Ombudsman probes, the legacy inquests, which are mostly into state killings (and which in the case of Ballymurphy has become a major inquiry), civil actions and the Bloody Sunday inquiry are all judged to the civil standard.

Yet terrorists are not being judged in this way, so there is little prosect of findings against them on the balance of probabilities.

Then, on occasions when state forces are judged to the more stringent criminal standard, they face a further disadvantage: there is an immediate paper trail to the suspect. There is no such paper trail that brings investigators to the door of terrorists – not even to the serial killers, who were skilled at covering their tracks.

Other legacy problems include the fact that the UK has conceded that the PSNI is not fit to judge historic cases, and the fact that the proposed Historical Invetigations Unit will not only gather evidence — it will adjudicate on it.

This breaches a key principle of the criminal justice system: that investigators gather the evidence and others assess it and act on it.

Furthermore, there is the particular injustice of the treatment of ex RUC in legacy cases. There is a growing awareness of how unfair it is that they alone face ‘misconduct’ probes (it is astonishing that plan got so far after the lawyer Neil Faris outlined on these pages in 2018 why it would be a travesty of justice, see link below).

Yet even the emerging solution to that injustice — that the historic allegations against the RUC stay with the Ombudsman — leads on to consideration of the ruling by Mr Justice McCloskey about RUC officers being “in effect tried and convicted [of collusion] without notice in their absence,” and how he stood aside due to a remarkable claim of bias, which he rejected. Then a completely different ruling to his was issued.

Why has there been no outcry over the prospect of RUC being so assessed on collusion claims indefinitely either under the present system or the mooted ‘police misconduct’ one?

For those who say that ‘misconduct’ only relates to serious cases involving deaths, why are there hundreds of such claims against an RUC that killed 55 people? How is that possible unless we adopt a republican approach of upping the culpability of RUC in deaths by alleging hundreds of collusion cases?

The legacy scandal, in which the reputation of a UK state which prevented civil war amid a long terrorist campaign is relentlessly being trashed on a number of fronts, is much greater than a few soldier prosecutions — extraordinary though such prosecutions are in the absence of trials of IRA leaders.

London might well rush through a device to protect individual veterans, but maintain the flawed overall approach to legacy.

• Ben Lowry (@BenLowry2) is News Letter deputy editor

• Neil Faris: It is inherently unfair that police can be shamed but not terrorists