Can we get some things straight?

I’m getting a bit sick of reading nonsense about Loughgall.

Firstly, all that is new in the Belfast Telegraph is that the HET report is due out soon. If that report states that the IRA fired the first shot, that will simply be a regurgitation of the facts as detailed in the European Court of Human Rights judgment more than ten years ago.

It is also clear that some people have not read that judgment, and have no idea why the families were awarded compensation. It is true that the award was made because the UK failed to discharge it’s duties under Article 2 of the Convention (right to life), but that failure was nothing to do with the, frankly insane, idea that the Police and Army should have before opening fire, attempted to arrest a gang of heavily armed men with a large bomb in the bucket of a digger, who were quite quickly off the mark in spraying the scene with gunfire.

Para 94 of the judgment begins:

The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.

Paras 95 and 96 state:

For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence….The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances.

From para 114:

Even though it also appears that, as required by law, this investigation was supervised by the ICPC, an independent police monitoring authority, this cannot provide a sufficient safeguard where the investigation itself has been for all practical purposes conducted by police officers connected, albeit indirectly, with the operation under investigation.

And the Court concludes in paras 136 and 139:

The Court finds that the proceedings for investigating the use of lethal force by the security forces have been shown in this case to disclose the following shortcomings:
– a lack of independence of the investigating police officers from the security forces involved in the incident;
– a lack of public scrutiny, and information to the victims’ families of the reasons for the decision of the DPP not to prosecute any soldier;
– the inquest procedure did not allow for any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which might have been disclosed;
– the soldiers who shot the deceased could not be required to attend the inquest as witnesses;
– the non-disclosure of witness statements prior to the witnesses’ appearance at the inquest prejudiced the ability of the applicants to participate in the inquest and contributed to long adjournments in the proceedings;
– the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.
The Court finds that there has been a failure to comply with the procedural obligation imposed by Article 2 of the Convention and that there has been, in this respect, a violation of that provision.

All emphasis mine.

So, when Jeffrey Donaldson said at the time “I just can’t understand how they could conclude what they have. I think that this judgment demonstrates just how crazy the system has become and how upside down the whole process is.” I’m not really sure what part of the judgment he was referring to. The compensation was awarded for a procedural failure derived from reading articles 1 and 2 together. And why shouldn’t the families have a legitimate expectation to an independent investigation?

On this point, I do think there is a certain element of justification to the Republican argument. We should expect more from the legitimate agents of the state when exercising the state monopoly on force than we do from a gang of terrorists engaging in an illegitimate, sectarian, murder campaign. We should expect the forces of the rule of law to be above reproach. Of course demands that they calmly walk into a hail of bullets, in order that they either request that the criminal gang cease and desist, or place them under arrest are absurd. But that basis on which Kelly v UK was decided cannot really be in question in a liberal democratic state; the use of lethal force by the state must be under the controls of the values of the democratic system. However in this case, those controls have been ruled to have broken down not when the SAS opened fire, but when the events of that day were under investigation.

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