We are pleased to welcome this guest post from Dr Aoife Duffy, Lecturer in International Human Rights Law at the Irish Centre for Human Rights, National University of Ireland Galway.
On 10 November 2015, a 66-year-old ex Lance Corporal of the British Army’s Parachute Regiment was arrested in relation to the killing of three individuals who died during Bloody Sunday, which resulted in the deaths of 14 civilians following an anti-internment march in Derry on 30 January 1972. Accounting for conflict related violence and killings committed by the security forces in Northern Ireland has been problematic due to the hegemonic position of official discoures related to conflict, underpinned by various denial strategies, as outlined by Stanley Cohen in his seminal work, States of Denial: Knowing About Atrocities and Suffering. In Northern Ireland, a structure of denial was sustained at various points throughout the UK administration and the military-security establishment, including through close cooperation between between senior officers in the British army and the Attorney General regarding the prosecution of soldiers on serious criminal charges. The General Officer Commanding (GOC) the British Army in Northern Ireland, Sir Frank King, met with the Attorney General on 8 January 1974 and subsequently wrote to one of the most senior officers in the British Army, the Adjutant General Sir Cecil Blacker, based at Ministry of Defence offices in Whitehall, about the meeting. In short, General King was reassured by the position taken by the Attorney General, who informed him in no uncertain terms that ‘not only he himself but also the DPP and senior members of his staff, having been army officers themselves, having seen active service and knowing at first-hand about the difficulties and dangers faced by soldiers, were by no means unsympathetic or lacking in understanding in their approach to soldier prosecutions in Northern Ireland.’ Approximately 350 deaths were caused by state security forces between 1969 and 1994, and the army were responsible for 90% of these killings between 1969 and 1974. 54.1% of those killed by the security forces in Northern Ireland were civilians and 84% of these victims were Catholic. General King was informed that only 10% of the cases submitted to the DPP were prosecuted; that borderline cases (he cited the shooting of Joseph McCann) were routinely dropped, ‘unless there was evidence of brutality or callousness on the part of that soldier or evidence that the soldier had clearly, unjustifiably and substantially overstepped the mark in the use of force.’
Brendan O’Leary and John McGarry found that out of 191 complaints received by the DPP in the 1980s regarding the misuse of plastic bullets causing death or serious injury, only four of these cases were ever prosecuted. General King’s letter reveals a working arrangement between the army and the RUC regarding the prosecution of soldiers, whereby the army would be given full details of the allegations in advance in order to frame internal military or disciplinary proceedings. This suggests an attempt to claim military jurisdiction over the soldiers and thus inhibit public criminal proceedings. In addition, General King described the exchange with the Attorney General as an ‘extremely valuable exercise’ and that ‘the assurances which he gave me in return are as specific as they are strong.’ The Attorney General was ready to ‘receive representations from me about any particular case and he undertook to give such representations the most careful consideration.’ To that end, General King’s representations on behalf of an army sergeant (Sergeant Crossland) were favourably received by the Attorney General, who agreed to drop the charges, and King’s input on other cases were welcomed by the Attorney General in reaching his decisions. General Sir Cecil Blacker wrote to the Secretary of State for Northern Ireland about the meeting, highlighting the Crossland case, where the decision to drop the charge was related to the fact that the Commanding Officer had dealt with the offense summarily ‘thus providing a bar under s.133(1)(b) of the Army Act 1955.’ A further meeting between the Attorney General, the Army Prosecution Service, the DPP, and senior members of his staff occurred on 15 January 1974 and it was agreed that,
Whenever the conduct of a soldier on duty is investigated by the RUC or RMP [Royal Military Police] the full military background will be given to the RUC by the Commanding Officer and will thereafter by treated as “expert evidence”.
In cases where a prosecution seems likely ADALS [army prosecuting service] may consult DPP or if necessary the Attorney General. The latter will provide the background information in his possession on which a prosecution might be based. Although the whole contents of the police file will not be divulged, this background evidence should enable ADALS to advice the GOC as to the likelihood of, and reasons for, a prosecution and should avoid the sort of misunderstanding that arose in the Ross case.
If the GOC considers that a prosecution in any particular case would be contrary to the public interest he should make representations to the Attorney General.
Where in relation to the prosecution of a soldier, a direction is sought from the Attorney General by the Director of Public Prosecutions for Northern Ireland, the Attorney General will, where he considers it proper, request the GOC to furnish him with such information as may assist the Attorney General to determine if a prosecution is in the public interest.
With a maximum level of cooperation between the military in Northern Ireland and the RUC, and agreement between the GOC and the Attorney General’s office ‘as to what sort of conduct merits a criminal trial,’ it was highly unlikely that soldiers would be tried in criminal courts, but if such ‘unlikely circumstances’ did occur, ‘Ministerial intervention might become necessary.’
Samuel Silkin replaced Sir Peter Rawlinson as Attorney General on 5 March 1974, and General King hence directed his representations to Silkin. In a letter dated 3 April 1974, Sir General King referred to a specific case raised by the new Attorney General (that of Lance Corporal Nicoll), and in response King expressed concerns about prosecuting soldiers in the higher courts, as he considered that this might jeopardise the army’s operational plan for Northern Ireland, and he was extremely concerned about the morale of serving soldiers. In particular, General King speculated on what might be done about cases where a decision to prosecute had been taken by the DPP (he mentioned that there were twenty such cases outstanding), and the remaining cases where no such decision had yet been reached. In relation to the first category, General King requested that all these cases be examined or re-examined in the light of our discussions: the basis of the examination or re-examination being whether the public interest really requires a trial at all or, if it does, whether it would not be served equally appropriately by the exercise of military jurisdiction in those non-homicide cases which the Army Act currently permits to be tried under military law in the United Kingdom.
General King specifically asked the Attorney General to re-examine seven cases. Clearly, the army should not be expected to abide by the same rules as their enemies, as illustrated by King, I have great difficulty in finding attractive or convincing the proposition that equality before the law means, in the present circumstances in Northern Ireland, that the status of the potential accused should be disregarded. In this, as in so many other aspects of life here, I fear it is not being acknowledged that the army is engaged in fighting an enemy, in suppressing an insurrection, in effect in conducting a war. To argue that the law keepers are to be regarded no differently from the law breakers, that the forces of law and order and the forces of the enemy are to be on the same footing, is, in my view, to play directly into the enemy’s hands.
In her book, The Politics of Force: Conflict Management and State Violence in Northern Ireland, Fionnuala Ni Aolain highlights the difficulty in assessing with any clarity the number of criminal prosecutions and disciplinary procedures for security force killings; she could identify only 24 prosecutions and concluded that only ‘eight law-enforcers have been convicted of criminal offences arising from the use of force exercised while on duty.’ In short, the GOC’s view was that in the grey zone operations of Northern Ireland, the British Army should be permitted to act with impunity, and this was accepted at various levels of the administration and government. Questionable security force actions and operations were shielded from view, and the Irish government’s inter-state complaint to the European Commission on Human Rights was regarded as a major inconvenience, and the UK government’s response to the application was disingenuous at best.
A culture of denial was deeply embedded in the RUC, the Army, the Ministry of Defence and the Northern Ireland Office in respect of detainee abuse, which was exceptionally resistant to counter narratives that exposed the violence. The hegemony of this approach persists today. Recently a spokesman for the Attorney General for England and Wales commented on the Army-Attorney General correspondence,
What was being set out in this correspondence is that it was open to the army to draw to the attention of the AG and/or DPP any information they held which was relevant to their assessment of the public interest and which they might otherwise be unaware. What is important is that the final decision on prosecution would have been that of the DPP (or the AG in a case that required the AG’s consent) taken independently of Government, the army or anyone else.
However, analysis of declassified materials challenges this conclusion, particularly in light of the highly specific instructions regarding individual cases which were communicated between senior British Army officers and the Attorney General. An alternative reading suggests that the RUC, the British Army, the Northern Ireland Office at Whitehall, and even the Attorney General, went to great lengths to shield members of the security forces responsible for violence while on duty from prosecution. Dissenting voices have exerted constant pressure from the fringes in Northern Ireland, but whether the truth value of such allegations can be incorporated into the official narrative of conflict related violence remains to be seen. Likewise, given the ‘complete wall of silence’ erected by the UK government in relation to security force misconduct and abuses in Northern Ireland, the likelihood that former soldiers would be prosecuted for Bloody Sunday killings remains slim.