Lawyer: Protections for ex soldiers are being thwarted by the politics of Northern Ireland

British Army veterans who served in Northern Ireland during the Troubles are, statistics show, up to 54 times more likely than republican paramilitaries to be prosecuted by the Public Prosecution Service (PPS) for alleged offences pre-dating the 1998 Belfast Agreement.

To compound this discriminatory treatment, last month Parliament passed the Overseas Operations Bill to provide protection from vexatious prosecutions to veterans who served overseas, but not to those who served in Northern Ireland; thereby creating a two-tier class of veterans.

Yesterday, the criminal trial of Soldiers A and C for the alleged murder of IRA terrorist Joe McCann collapsed.

According to A and C’s legal team the PPS must have known their case was fundamentally flawed. So why did they go ahead? In the circumstances and, quite rightly, A and C’s lawyer, Philip Barden, has called for an urgent independent review of the PPS’ handling of the case “to ensure that the decision to prosecute these veterans was not political”.

On the same day, the British government refused veteran Dennis Hutching’s request to have concerns over discriminatory treatment adjudicated by the European Court of Human Rights at an expedited hearing. Mr Hutchings’ own criminal trial is scheduled to start this autumn.

The criminal trials of further veterans are set to follow.

For years the government has promised Dennis and the other veterans facing prosecution that it would introduce legislation to protect them from such vexatious prosecutions; thereby creating a legitimate expectation that such promises would be kept.

Instead, thwarted by Northern Ireland politics and kowtowing to those who’d seek to whitewash the IRA’s role in the history of the Troubles, these promises have been repeatedly broken.

Dennis wrote to the government in the hope that, given its failure, it might stand aside and allow Strasbourg to step in. Shamefully, and shamelessly, it has refused; falling back on the same false assurances that protective legislation is imminent. It isn’t.

Former Minister for Veterans, Johnny Mercer, who resigned over the government’s broken promises, and who knows better than anyone else has said: “The government has been promising this bill for a long time. If I thought there was any prospect of that bill coming, I clearly would have stayed”.

Westminster was warned repeatedly that these prosecutions were vexatious. The collapse of Soldiers A and C’s trial has proved these warnings right. Yet, they were still forced to suffer the ordeal of a prosecution that should never have been brought.

In the unlikely event that a bill is passed, it is not only too late them, but most likely for Dennis and anyone else.

An immediate inquiry of all outstanding prosecutions of veterans must surely now take place to ensure that all PPS decisions were made properly and correctly. The trial of Soldiers A and C should never have happened. If the PPS got it so wrong in that case, it’s reasonable to fear they have done so in others.

If collapse of the Iraq Historical Allegations Team in 2017 demanded an inquiry — after findings that the majority of its investigations were not supported by credible evidence — one is certainly needed now. If only to restore public trust and confidence in the PPS.

Perhaps such an inquiry could also answer the question why the PPS seems so disproportionately focused on prosecuting veterans while failing to bring known terrorist offenders to justice?

Around 3,500 people were killed during the Troubles. It’s well documented that 90% of these deaths were caused by terrorists (60% by republican paramilitaries and 30% by loyalist paramilitaries). 

The number of state killings (by police and soldiers) stands at less than 10%.  It is incontrovertible that all paramilitary killings were criminal, while the state killings — with a handful of exceptions — were lawful.

Despite being responsible for around 2,200 deaths, during the Troubles, all of which were unlawful, only a handful of republican paramilitaries have been prosecuted since the Belfast Agreement.

Meanwhile, six British Army veterans are currently facing prosecution before the NI courts which reported plans to prosecute at least a dozen more.

The numbers just don’t add up.

• Statistics Explained

During the Troubles, some 3,720 people were killed, the majority in Northern Ireland, and very many more were injured (David McKittrick & Others, eds., Lost Lives, Edinburgh & London, 2007, p 1553.).

Statistics reveal that 90% of the deaths were caused by terrorists (60% by Republican paramilitaries and 30% by Loyalists paramilitaries).

The number of state killings (by police and soldiers) – at 361 – is slightly less than 10% of the total.

It is incontrovertible that the majority, if not all, the paramilitary killings were unlawful, while the majority of the state killings – with a handful of exceptions – were lawful.

Research shows that, since 2007, despite being responsible for around 60% of deaths during the Troubles only seven Republican paramilitaries have been subject to a decision to prosecute for offences committed prior to 1998.

Disproportionately, given those figures above, six former soldiers (to date) face prosecution in Northern Ireland (with twelve more expected to follow).

Using those figures above as a reference point, if republican paramilitaries killings were the subject of prosecution at the same rate as incidents involving the British Army, we should expect thirty-seven (37) rather than merely seven republican paramilitaries to have faced or be facing prosecution since 2007. Alternatively, if there really are only seven possible prosecutions to be brought against Republican paramilitaries then we should expect the number of veterans to be facing prosecution since 2007 to be around one.

Put simply, veterans are at least around 6x more likely to face prosecution in Northern Ireland than Republican paramilitaries. Furthermore, this 6x calculation is not accounting for the fact, as stated above, that the majority, if not all, paramilitary killings were unlawful while any killings carried out by British troops during the Troubles - with a handful of exceptions were lawful.

Applying that variable, even if we pick an arbitrary high figure of 10% being the percentage of killings by the British Army which were unlawful (we expect the figure is, in reality, far lower), veterans are actually around 54x more likely to face prosecution in Northern Ireland than Republican paramilitaries.

• Matthew Jury is a lawyer who is managing partner of McCue & Partners LLP

• Mr Hutchings’ campaign page - https://www.crowdjustice.com/case/justice4veterans/

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