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UK troops clash with demonstrators during Bloody Sunday, 30 January 1972

The Trouble with Northern Ireland Legacy Cases

Edward Burke
Commentary, 22 April 2021
UK, Law and Ethics, Military Personnel
The departure of a UK government minister does little to promote a serious discussion about a painful episode.

On 20 April Prime Minister Boris Johnson sacked Johnny Mercer from his position as Minister for Defence People and Veterans. Mercer had repeatedly criticised the decision not to extend protections to Northern Ireland veterans under new legislation aimed at limiting prosecutions and litigation against serving or former military personnel (the Overseas Operations Bill). His removal underlines the government’s failure to provide clear mechanisms for dealing with the legacy of Northern Ireland’s Troubles.

Mercer’s resignation letter echoed points made by veterans’ groups in their campaign to halt investigations into alleged crimes committed by soldiers during Operation Banner, the British Army’s 38-year deployment in Northern Ireland (1969–2007). First, a number of the incidents being investigated happened a very long time ago, some in the early 1970s. Second, allegations were investigated at the time. Third, veterans have repeatedly been interviewed in relation to historical incidents and this has caused considerable stress to men with honourable service records. Fourth, no new evidence has emerged to warrant new prosecutions.

Finally, many veterans see the reopening of cases as merely a case of political expediency to satisfy Sinn Féin, whose leader in Northern Ireland is now the deputy first minister. As Mercer put it in his letter, veterans are the victims of ‘a changing of the political tide’. The latter is a dangerous attack on the professionalism of the Police Service of Northern Ireland (PSNI) and the Public Prosecution Service (PPS), the implication being that they are not bringing charges according to evidence but are instead complicit in a political vendetta against the British Army. Such an unfounded allegation is particularly unhelpful in the wake of rising tensions between the PSNI and loyalist communities in Northern Ireland.

As an historian of the British Army during the Troubles, I find the increasingly polarised and politicised narratives around Operation Banner deeply frustrating. Partly due to the present high-profile and acrimonious public debate over whether to prosecute a small number of former soldiers, perceptions of the British Army’s role in Northern Ireland risk being defined by the Army’s worst incidents in a very long war. These include the fatal shooting of 14 unarmed civilians on Bloody Sunday in 1972 by soldiers from 1st Battalion, The Parachute Regiment.

What are not highlighted are those moments of professional restraint, such as when a hardened Royal Highland Fusiliers sergeant blocked the gates of Girdwood Barracks in Belfast to prevent soldiers from going out on the streets to take revenge for the heinous abduction and murder of three young fusiliers in March 1971. There are many such cases of courage and leadership, but few of them are publicly known about, never mind celebrated. There are no medals for restraint, even when that is exactly what a counterinsurgency operation requires.

A perception has grown – one that is rarely corrected by the government – that the PSNI and the PPS are predominantly pursuing soldiers over historical Troubles-related allegations. This is not the case. Of the 26 legacy-related cases brought by the PPS in Belfast from 2011 to the end of 2020, 21 related to paramilitaries. Six former soldiers are presently facing charges for offences allegedly committed while serving in Northern Ireland.

The government needs to speak frankly to the veteran community. There are a number of high-profile investigations and cases being pursued against senior republicans in Northern Ireland. One such case is the prosecution of John Downey, an ‘active participant’ in the notorious Hyde Park bombing. Downey is now charged with the murder of two soldiers in 1972.

If government ministers or their lawyers argue that it is unsafe to prosecute in the case of soldiers due to the passage of time, then it could reasonably be argued that such a principle should also be applied to those charged with murdering servicemen nearly 50 years ago. That is unlikely to be an outcome favoured by the families of murdered soldiers.

As in the Downey case, new evidence does sometimes emerge years after an event. Moreover, as the historian Huw Bennett has demonstrated, the Ministry of Defence admitted liability and paid compensation for fatal shootings in a number of cases in the early 1970s. Although prosecutions were not brought against soldiers by the Northern Irish authorities for many such fatal shootings at the time, the Ministry of Defence concluded that these cases involved a ‘reaction by soldiers in a way beyond what a court would judge to be reasonable, the shooting of an innocent person, or otherwise undefendable circumstances’.

In January 1974 Sir Peter Rawlinson, the Attorney General for Northern Ireland, assured British Army commanders that he and the Director of Public Prosecutions were sympathetic to the Army, not least due to their own military service, and would use their discretion accordingly. Decisions had been taken not to prosecute in ‘more than a few cases where the evidence, to say the least, had been borderline’. A Royal Military Police (RMP) officer also wrote in a report from that period that,

With both RMP and RUC [Royal Ulster Constabulary] sympathetic towards the soldier, who after all was doing an incredibly difficult job, he was highly unlikely to make a statement incriminating himself, for the RMP investigator was out for information for managerial, not criminal purposes, and, using their powers of discretion, it was equally unlikely that the RUC would prefer charges against soldiers except in this most extreme of circumstances.

Northern Irish courts during the Troubles were often also sympathetic to the military; serving or former soldiers generally served short sentences in those very few cases where they were convicted of murder or manslaughter.

If cases are reviewed years later, as they often are when killings remain unsolved or new evidence is forthcoming, it is unsurprising that (a very few) prosecutions may emerge, especially given the Ministry of Defence’s past acceptance of liability and the deliberate, questionable pains taken by Northern Ireland authorities not to prosecute.

Another reason why veterans are interviewed by police about events many years ago is that successive governments have failed to put in place an effective legacy mechanism, such as the removal of the threat of custodial sentences if a truthful account was offered to a judiciary-led commission. Since republicans, including the IRA, are responsible for most deaths during the Troubles, this process would have been an uncomfortable experience for Sinn Féin.

Pitting veterans against the PSNI and PPS has been both profoundly ugly and regrettable. It also does significant damage to the reputation and future of the British Army in Northern Ireland.

Dr Edward Burke is an Assistant Professor at the University of Nottingham. His book An Army of Tribes: British Army Cohesion, Deviancy and Murder in Northern Ireland was published by Liverpool University Press in 2018.

The views expressed in this Commentary are the author's, and do not represent those of RUSI or any other institution.

BANNER IMAGE: UK troops clash with demonstrators during Bloody Sunday, 30 January 1972. Courtesy of Keystone Press / Alamy Stock Photo

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