The unintended consequences of an amnesty for security forces are forensically exposed

The case for a selective amnesty for former security forces is powerfully refuted by the leading lawyer in the field Professor Kieran Mc Evoy of Queen’s in a Guardian article ( see below). Clearly someone got to Theresa May after Wednesday’s PMQs to make her change her mind. She did a similar U- turn yesterday over nominating two lay assessors to sit with the retired judge in parts of the Grenfell fire inquiry.  The same scary changeability can be seen in  how Brexit policy evolves.  Fingers crossed that she will get all three right in the end. At least  the record shows that even though she’s  thought of as a weak PM she reserves some  final decisions to herself.

While selective amnesty is ruled out by the government and a general amnesty is off limits at this point, the case for a general statute of limitations linked to official disclosure with protection for identities strengthens if  the HIU finds too little evidence  for many prosecutions over its proposed five year remit. This is the outcome predicted by many in the law and justice system, such as the Attorney General John Larkin, the former DPP Barra McGrory and the former chief  constable Hugh Orde. If May fluffed her initial response what are the odds for the local politicians getting it right?

From McEvoy’s Guardian article

So why is ( amnesty for the security forces) off the table now? The reasons are both political and legal. A statute of limitations for security forces only is what the United Nations has termed a “self-amnesty … adopted by those responsible for human rights violations to shield themselves from accountability”. Such “self-amnesties” were introduced in former dictatorships in Argentina and Chile and by Robert Mugabe’s government in Zimbabwe. For the UK to join such a list would be quite extraordinary. Apart from the blow that the UK’s international reputation would suffer, an amnesty for British troops would provoke a furious reaction from Irish nationalists and undermine the broader consultation process

The reasons why are straightforward. The state was directly responsible for approximately 360 deaths during the conflict. Many of these occurred in the early (and most violent) period that included Bloody Sunday. Between 1969 and 1974, 170 people were killed by the British army. No one was prosecuted. 63% of those killed were undisputedly unarmed, 12% (24 people) were armed and a further 14 were listed as being “possibly armed”. For many, an amnesty would retrospectively validate such a culture of impunity.

There are also direct legal consequences. Parliament could introduce an amnesty. However, as the defence committee acknowledged, such an amnesty could not deny victims their right to an investigation into what happened. Families would still receive reports (eg from the cold case review) about what happened, albeit without the chance of a prosecution. The defence committee did not conclude that an amnesty would apply to paramilitaries. However, in legal terms, a security forces-only amnesty would seriously undermine any conflict-related prosecution.

One argument, reiterated by Theresa May in the House of Commons, is that current processes are “unfair” to the armed forces. However, since 2011, seven republicans, three loyalists and three soldiers have been prosecuted for conflict-era offences. The prime minister also said that ‘“only those who served in law enforcement are being investigated … terrorists were not being investigated”. In fact, as Police Service of Northern Ireland figures show, the police are currently investigating 530 republican-linked killings, 271 loyalist-linked and 354 security force-linked deaths.

Another point raised in parliament was that the Good Friday agreement provisions on the early release of prisoners and the ensuing two-year maximum sentence rule for conflict-related offences did not apply to the security forces. In fact, there is nothing in the relevant legislation to suggest that soldiers or police would be ineligible. That legislation does not cover pre-1973 offences but this anomaly is easily rectified by shifting the eligibility date backwards.

Other parliamentarians argued that republican suspects benefited from the so-called “on-the-run” letters, an amnesty by another name. However, as was confirmed by Lady Justice Hallett in her review of this scheme, these letters simply confirmed to recipients that there were no current charges or evidence against them. Unlike an amnesty, they did not rule out a future prosecution if evidence emerged.

What would happen in cases of collusion where state agents were operating within loyalist and republican groupings? Would they qualify? The shallowness of these justifications for a “state actors only” amnesty would be exposed in court in any attempt to prosecute a paramilitary suspect, which defence lawyers would argue was discriminatory and unfair.

In short, the political consequences of the proposed statute of limitations would have been potentially dire – undermining years of painstaking negotiations. The legal effect would have been a de facto amnesty for all involved in past killings, which many victims would have found unconscionable. Wiser heads clearly prevailed within the government – and a good thing too. Now let’s consult on and implement what was actually negotiated.

The NIO consultation paper says approximately 940 investigations were not completed by the defunct  Historical Enquiries Team. This number includes around 240 cases attributed to security forces after significant concerns about procedures used to investigate deaths caused by the security forces were raised by Her Majesty’s  Inspectorate of Constabulary (HMIC), which led the then Chief Constable of the PSNI to commit to review all such cases.

McEvoy explains the HIU will take over  the police load of   investigations into  530 republican-linked killings, 271 loyalist-linked as well as 354 security force-linked deaths .  All this refutes claims that the HIU caseload would be biased against the security forces. How will the scheme’s critics reply?

Brian Walker

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London