Ben Lowry: There is a grave imbalance in the number of soldier Troubles legacy prosecutions

The trial of Denis Hutchings for the murder of John Patrick Cunningham in 1974 has been postponed.

By Ben Lowry
Saturday, 7th March 2020, 2:44 pm
Updated Sunday, 8th March 2020, 7:44 pm
Martin McGuinness and Gerry Adams carry Brian Keenan's coffin in 2008. Neither McGuinness nor Keenan ever faced charges commensurate with directing terror. "If a raft of low ranking soldiers are prosecuted and no IRA leaders are so, the problems with legacy will become starkly apparent"
Martin McGuinness and Gerry Adams carry Brian Keenan's coffin in 2008. Neither McGuinness nor Keenan ever faced charges commensurate with directing terror. "If a raft of low ranking soldiers are prosecuted and no IRA leaders are so, the problems with legacy will become starkly apparent"

It was due to begin on Monday, but has been de-railed by the coronavirus and the collapse of Flybe.

Mr Hutchings, 74, has a chest infection, other health conditions and lives in Cornwall.

The trial, when it happens, will be the most high profile trial in Northern Ireland arising from the legacy of the Troubles in years.

When that case happens the law will take its course. It is no commentary on the defendant, or defendants in other cases, or the authorities in bringing such cases to observe that there is a fundamental imbalance in the numbers of trials of soldiers for historic killings.

Politicians or commentators who have alleged such an imbalance in prosecutions are typically challenged with such speed and ferocity that mostly they do not even bother to make the case that the numbers are unfair, or immediately retreat if they do make it.

Everyone agrees on one thing. That a roughly similar number of historic prosecutions are being brought against soldiers, and republican and loyalist terrorists.

The Public Prosecution Service (PPS) released statistics on this last year, which said that there had been a decision to prosecute republicans in eight legacy cases, loyalists in four and six soldiers in five cases.

I do not know to which cases they are referring, but my own analysis of cases (over a slightly different timeframe) is of nine republican trials (in cases that involve killing) and six soldiers.

Clearly there is a roughly similar number of prosecutions by category. This is then repeatedly cited to show that the system is working. If all the main ‘actors’ — state, republican, loyalist — are being prosecuted, then that is fair enough, right?

Similar logic has been applied to investigations, and the statistic, now two years ago, that the PSNI legacy branch was examining a roughly equal number of republican, loyalist and security force killings. The BBC produced a graphic, which was used repeatedly, to show that ‘only’ 30% of the PSNI legacy caseload was security force killings.

The graphic was seized on by observers to show that there is no imbalance in legacy investigations.

Yet it does no such thing.

In fact, it is staggering that most of the 360 or so state killings have been investigated. All those killings were a tragedy, but they were also overwhelmingly legal.

One reason for the probes is that many of these killings (most of which are killings by soldiers pre 1975) are not said to have been properly investigated at the time.

Republicans will never accept that most state killings were legal. They say that even the IRA murder gang that was killed as it bombed Loughgall’s isolated RUC station 1987 should have been arrested.

Republicans further insist that hundreds of the 1,100 loyalist Troubles murders were backed by state collusion. But that is an attempt to get away from the stark statistics of the Troubles: that republicans killed 2,100 people, loyalists 1,100 (mostly Catholics for being Catholic, and fewer than 50 of whom were republican paramilitaries), while the state killed around 360.

It is in fact striking how bad loyalist intelligence was.

This ratio of overall Troubles killings by responsibility has been summarised as 60% republican, 30% loyalist, and 10% state.

Some unionists, while claiming an imbalance in legacy probes, on grounds that around a third of them relate to state killings instead of 10%, are making an immediate blunder. They are allowing the implication to linger that the 10% of state killings were all illegal.

An ongoing legal challenge to the prosecution of Mr Hutchings, alleging abuse of process, has isolated the figures in a different way.

It compares 2,100 republican killings to the 300 or so soldier killings, and then works on the basis that 10% of soldier killings might have been illegal, to conclude that a soldier is dozens of times more likely to prosecuted than a republican.

Another way to look at the stats is to say that a third of the 10% state killings were illegal (itself a highly contentious assumption), then that is 3% of the total. If the state was culpable for 3% of overall illegal killings but faces a roughly equal number of legacy trials to the 97%, that is a grave imbalance.

The reasons for the imbalance are related to the deluge of investigations into the state have led to greater scrutiny of those killings. With legacy inquests, which are mostly into state killings, only in their infancy, it is possible that many more files will be sent to PPS.

Republicans say tens of thousands of paramilitaries went to jail and a only few soldiers did, but that assume a huge state culpability that none of its defenders accept.

And even if it was a fair point, is that what legacy is all about? Balancing up prosecutions so that many security forces are jailed? Well then let us say so!

There are also two key problems with the argument about past jailings. The first is that even soldiers who did fire recklessly in the early 70s were badly trained recruits, almost all of whom did not set out that day to kill, which is utterly different to someone who did.

The second is that if we are going to talk about categories of ‘actors’ who did not serve prison time proportionate to their culpability, then what about IRA leaders? The IRA killed by far the most people, yet was allowed to come off its 25 years of terror at a time of its choosing.

No members of the IRA Army Council were prosecuted on a charge remotely commensurate with their bloodshed– brutal men such as Brian Keenan, Kevin McKenna, Billy McKee. If Martin McGuinness was still alive, does anyone believe he would have jailed?

Is anyone surprised that the ex RUC assistant chief constable Alan McQuillan wrote on these pages (in our legacy scandal essays — see link below) about his fear that new legacy investigators might face “political pressure, not least from the two governments, not to pursue those whose arrest might ‘destabilise the peace process’”?

Or can anyone really dispute his comment that past developments such as the On The Run letters had caused him to “fear that many of the decisions made in earlier stages of the peace process have utterly undermined, indeed destroyed, our real ability to deliver for victims”.

In this overall context, any imbalance in legacy prosecutions is a matter of the utmost importance.

If it becomes the case that a raft of low ranking soldiers are prosecuted and no IRA leaders are so, the problems with legacy will become starkly apparent to almost every person in the UK who has so much as a passing interest in news.

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