The Troubles cast a shadow over Brexit

As the controversial prosecution of British soldiers shows, Northern Ireland’s past still has the potential to scupper peace and prosperity

John Ware

The “Tavern in the Town” pub, Birmingham, after the 1974 bombings: 21 were killed, but the real bombers are still at large (© Wesley/Keystone/Getty Images)

“It’s the Irish embuggerment factor,” drawled a plummy-voiced British army officer during a Belfast riot I was covering in 1975. His soldiers had been attacked with bottles and stones, and things had escalated rapidly. Their response was a sustained volley of plastic bullets, an about-turn from the low profile the army had been adopting to try to keep a faltering IRA ceasefire alive. Ridiculously posh, the officer looked hopelessly out of place against the raw brawn of street-fighting republicans, boys and men massing on the Falls Road. Yet in that phrase — “the Irish embuggerment factor” — he’d captured an eternal truth about Northern Ireland: like whack-a-mole, eventually something always pops up to scupper the best of intentions.

Rarely in the field of human conflict has so much energy been expended in placating so few as in the Brexit negotiations over the backstop preventing a hard Irish border. It seems it’s OK for the Democratic Unionist Party to demand different reproductive and marriage rights from the rest of the UK (to name but two) while also demanding perfect regulatory alignment over cattle feed. Far from embodying the Union, the DUP erodes its Britishness.

Brexit, though, is just the latest example of embuggerment by an Irish minority buggering up a plan intended to benefit the majority. For 30 years, Northern Ireland was riven by one of the most prolonged insurgencies in modern European history. Some 20 years on from that conflict’s conclusion, whack-a-mole keeps muddling the search for a solution to dealing with its legacy: what to do about the 1,188 killings under reinvestigation and how to promote reconciliation. Arguments over legacy have so poisoned the political atmosphere that the return to devolved government now seems almost impossible. Precious little attention has been given to this legacy deadlock on this side of the Irish Sea. Until now, that is. Stirring MPs and the press from their slumber has been not the spectre of a new dark age cast over the province but the prospect of three elderly ex-soldiers facing prosecution over killings from the 1970s.

The much-lauded 1998 Good Friday Agreement made no provision for the investigation or prosecution of former soldiers, focusing instead on the early release of convicted terrorists.

Two ex-paratroopers are due to stand trial in Belfast next September for the murder of an IRA gunman in Belfast in 1972 as he evaded arrest. Notorious though 25-year-old “Staff Captain” Joe McCann was, he was unarmed when he was shot repeatedly, judging by the ten cartridge cases close by his body. By the time Soldiers A and C appear in the dock, they’ll be 70 and 68.

Then there’s 77-year-old great-grandfather Dennis Hutchings, who suffers from heart and kidney problems. He is due to stand trial in March for the attempted murder in 1974 of a mentally retarded  27-year-old, John Cunningham, who was unarmed and shot in the back as he ran from Hutchings’s patrol because, said his GP, he was “afraid of the army”. The doctor told Cunningham’s inquest that his patient required special care and he had previously found soldiers pushing him into an armoured car because he had been hiding in the bushes. The charge against Hutchings is attempted murder — which he denies — because both he and another soldier, now dead, opened fire and the Crown can’t be sure whose bullets killed Cunningham.

Prosecuting Hutchings is a “national disgrace” tweeted Tory MP and former soldier Johnny Mercer. “Dennis Hutchings . . . is an old man,” says the former head of the army Lord Dannatt. “He should be allowed to have his old age.” So outraged by this “unprecedented betrayal of our fighting men” is former Colonel Richard Kemp, who did eight tours of duty of Ulster, “that I am returning the hard-won Commission awarded to me by the Queen that I have prized for 40 years”.

I doubt Messrs Dannatt, Mercer and Kemp will be arguing in favour of giving 66-year-old John Downey his old age. In November the ex-IRA man was charged with the murder of two soldiers in 1972. In 2014, he was also charged with the murder of four members of the Household Cavalry killed by a nail bomb which tore through them and their horses during the Changing of the Guard in 1982. But Downey’s trial collapsed after it emerged that in 2007 he had received one of 200 letters sent to IRA suspects on the run confirming they were not currently wanted even though 95 were linked to some 295 killings. These “comfort” letters followed private assurances to Gerry Adams from Tony Blair, who later explained they were key to ensuring the IRA fully decommissioned their weapons.

Former London car bomber Gerry Kelly, now a prominent Sinn Fein politician, says Downey’s latest arrest is “an act of gross bad faith by the British government”. For most people in Britain, and indeed Ireland, Mr Kelly’s outrage will attract much less sympathy than the outrage by veterans and MPs over the arrest of Dennis Hutchings, because whatever crimes soldiers may have committed, people will struggle to see the remotest moral equivalence between the British Army and the IRA.

Thanks to the Irish “embuggerment” factor, however, when it comes to the legacy minefield it’s just not that simple, at least not if we want Northern Ireland to move on by looking to the future instead of where it is, still stuck fast in the past.

I fear this article may not earn me many friends among Standpoint readers. But let me try to set out some of the realities, however uncomfortable they may be for those who think that, because soldiers were lawfully on the streets with guns, that relatives of those killed by the army should not be afforded the same legacy voice as those killed by the IRA.

A total of 301 people were killed by the British Army, over half of them between 1970 and 1973. The salutary fact is that the army’s biggest single group of victims were not terrorists, but civilians, the vast majority republicans or nationalists. During this period, a little-known Royal Ulster Constabulary force order was in place. The GOC and the Chief Constable had privately agreed that interviews of soldiers involved in killings, disputed or otherwise, would be conducted, not by the CID, but by the Royal Military Police. Many RMP interviews were a “managerial” formality, rather than an investigation, with statements running to just a few lines. This cosy arrangement only ended at the insistence of the Northern Ireland DPP in late 1973. When the Northern Ireland Lord Chief Justice Lord Lowry heard about it, he wasn’t too impressed either: “We deprecate this curtailment of the functions of the police and hope that the practice will not be revived.” It wasn’t — but neither were the 150-plus “investigations” reviewed. Widows, sons and daughters have been in limbo ever since.

It follows that most of those who still support the prosecution of soldiers involved in disputed shootings do so because the criminal justice system was so flawed during the most violent years of the conflict. Former generals, MPs and ministers can harrumph all they want about the injustice of reopening cases that were closed back in the 1970s, but I’m afraid these republicans and nationalists have a point, at least in law. While the conflict raged, ministers repeatedly maintained it was not a war, but a straightforward “law and order” issue. British counter-insurgency strategy was about establishing the “rule of law” which — as Mrs Thatcher kept telling us — “must apply to everyone”. The uncomfortable truth is that for soldiers, a different law applied to them for many years.

Moreover, Article 2 of the European Convention on Human Rights obliges Britain to conduct “effective” investigations into killings by “state actors”, meaning the investigation must be “capable of leading to the punishment of those responsible” though not necessarily requiring punishment. So far, those substandard RMP investigations that have come before the courts have been adjudged not to have met our Article 2 legal obligations.

There is, however, a growing chasm between the desire for prosecutions by republicans and nationalists against soldiers, and by unionists against the IRA — and the realistic prospect of securing convictions against either. Prosecutions are already very rare and getting rarer by the year because witnesses are dead and dying and documents and forensics lost or tainted. This mismatch has led to an explosion of legacy-linked civil litigation in Belfast, because when aggrieved parties don’t get criminal justice — or, alternatively, when they regard themselves as being unjustly prosecuted — they turn to the civil courts.

The result is that Northern Ireland’s civil justice system is approaching meltdown. The courts are now awash with hundreds of writs, seeking judicial review of DPP decisions not to prosecute, or to prosecute, decisions over the backlog of conflict related inquests, disclosure of intelligence, public interest immunity certificates, damages for unlawful injury and challenges to the issue of non-jury certificates. This is unsustainable: without a legacy agreement there will be no end to it and the civil justice system will eventually collapse.

This should tell us something — that the demand for legal accountability is not pre-eminently the product of cynical, mischievous, subversive, Brit-hating republicans and nationalists. It’s human nature to keep on demanding answers to questions which the state has either avoided answering or answered incompetently.

Last month the inquest opened into ten people shot dead by the 1st Battalion of the Parachute Regiment in Ballymurphy in August 1971 in the three days following the introduction of internment without trial. An 11th man died later. At the time, the army said the ten were either members of the IRA or killed in crossfire. Credible eye-witness accounts of soldiers firing at unarmed people and the nature of the victims suggest the army’s version is implausible. The dead included a mother of eight searching the streets for her children, and a priest who was shot while carrying a white flag and administering the last rites to a dying man who was also unarmed. Six months later, 1 Para shot dead 13 innocent people in Londonderry on “Bloody Sunday”. A 14th died four months later.

What motivates the Ballymurphy families’ quest for justice, is no different from what has motivated those families who for decades have demanded answers to the criminal justice system’s two biggest single failures of the entire conflict: not a single member of the IRA has been convicted of the two largest acts of mass murder: the 1974 Birmingham pub bombings which killed 21 people; and the 1998 Omagh car bombing by republicans opposed to the Good Friday Agreement, killing 29 including two unborn children. Of those 29 dead, nine were children and three generations from one family.

In these two terrible events, more than 420 people were injured, many with life-changing injuries: lost limbs, blindness and paralysis. In both incidents, the police solemnly promised the relatives of the dead and survivors that no stone would be left unturned. Yet in both massacres two very big stones were left unturned.

In the case of the pub bombings, the West Midlands Police reopened the investigation in 1991 following the release of the six Irishmen (The Birmingham Six) who the Court of Appeal found had been wrongly convicted 16 years earlier.
By 1993, “Operation Review” had identified five prime suspects for the bombings, including the two men who planted the bombs. The police assessed that one of the planters was a 34-year-old ex-British soldier, James Francis Gavin.

During my own recent investigation into the pub bombings for ITV, I discovered that Gavin had been well within the grasp of the West Midlands Police just six weeks after the bombings. On January 8, 1975, he was arrested. Traces of explosives were found in a car he drove. Yet inexplicably he was released and within hours had fled to Ireland. No doubt the police’s lenient attitude to Gavin was influenced by the belief that they’d already got the real culprits. The Birmingham Six had been charged after four of them “confessed” — despite the fact that these “confessions” were wreathed in contradictions because they’d been beaten out of them by the police.

But then a bit of physical coercion in the 1970s was par for the course, even for the courts. Dismissing the Six’s first appeal in March 1976, the Lord Chief Justice, Lord Widgery, mused whether the men had been knocked about “beyond the ordinary”, his curiosity aroused by a photograph of a black eye “the origin of which I had forgotten but do not think it matters much anyway”. This was the same Lord Chief Justice whose whitewash of 1 Para at Bloody Sunday four years earlier was overturned by Lord Saville in 2010.

In 1993 Gavin was interviewed by the police in the Irish Republic, where he was serving life for the murder of a man the IRA believed was an informer. Questioned about his role in the Birmingham pub bombings, Gavin declined to answer any questions. After “Operation Review” submitted files on him and his four fellow prime suspects, the DPP announced in 1994 there was insufficient evidence to charge any of them, at which point “Operation Review” appears to have pretty much given up. “The file . . . is now closed,” announced West Midlands Chief Constable Ron Hadfield.

John Ware (right) confronts Michael Patrick Reilly in a recent programme for ITV’s “Exposure” (© ITV/REX/Shutterstock)

It shouldn’t have been. Although four of those five prime suspects were in the Irish Republic and beyond UK jurisdiction, the prime suspect for Gavin’s fellow bomb planter was living in Belfast. His name is Michael Reilly. He is now aged 63.

In 2012, at the behest of the families, “Operation Castors” reviewed the pub bombings file. “We are assessing what future opportunities we might have to resolve the case,” said a police spokesman. I can think of one golden “opportunity” that appears not to have been taken — the use of lawful police subterfuge aimed at getting “alongside” a suspect by contriving a set of circumstances in the hope that it might trigger an admission or provide new leads. West Midlands Police will neither confirm nor deny that such a plan was ever given serious consideration in Reilly’s case, but I’m doubtful that it was.

The opportunity to construct a long-term plan around Reilly, his friends, habits, and lifestyle has been available to the police for a quarter of a century. He has lived and worked in Belfast since his release from jail in Birmingham for his part in a series of fire-bombings that pre-dated the pub bombings. His solicitor says he denies any involvement in the pub bombings, and “does not intend to respond any further” to my “unfounded allegations”.

I do not accuse Reilly of planting the bombs. I am, however, satisfied he is one and the same man who twice confessed to the former MP and minister Chris Mullin that he did. In 1986 Mullin wrote an excellent book arguing that the Birmingham Six were innocent, based partly on conversations with those who admitted their guilt to him, on condition he never named them while they were alive. In Reilly’s case, he provided Mullin with meticulous detail about the bombing operation.

Today Mullin still refuses to confirm or deny Reilly was that man, cryptically referring to him only as the Young Planter. “I haven’t named this individual and, so long as he is alive, I will not do so,” says Mullin.

Reilly, however, has been West Midlands Police’s prime suspect for Mullin’s “Young Planter” since 1993 when they interviewed him three times in Belfast. Beyond denying his involvement in the pub bombings, he declined to comment.

However, I discovered from a 1975 police statement that Reilly does appear to have known there were going to be bombings. A statement from his father Henry discloses that his son had warned him to stay out of Birmingham city centre that night. When Reilly was questioned about this, his statement records him admitting he knew “something was going to happen”. In his book, Mullin quotes his young planter as telling a similar story.

Had the West Midlands Police devised a plan to get alongside Reilly — even monitoring his conversations at home if necessary — they might well have learned more about how he knew that “something was going to happen”, who played what role, perhaps implicating the other prime suspects still at liberty in Dublin, and of course any further evidence either corroborating — or undermining — their case against him.

Today such subterfuge operations are typically executed under the Regulation of Investigatory Powers Act (RIPA) 2000 and are signed off by chief officers and scrutinised by the Surveillance Commissioner. True, they’re expensive, highly intrusive, require careful and patient planning and close supervision, and don’t always bear fruit. In Reilly’s case, however, the fact that he does not live in a republican area and had a respectable job offered the practical prospect of a successful penetration.

Deep-cover RIPA operations were deployed by outside police investigations into two separate but high-profile Northern Ireland murders. Why not in the case of Birmingham with 21 times the number of victims?

In the case of the Omagh bombing, the failure to lock up anyone has been almost entirely due to the arcane protocols restricting intelligence-sharing between Britain’s electronic eavesdropping centre, GCHQ and the police. In 2008, for BBC Panorama, I discovered that within hours of the massacre GCHQ had sent the cellphone numbers of the bomb team to the intelligence services in Belfast. GCHQ had tracked the bombers’ journey to Omagh, and their escape back across the border. With the mobile numbers came the names and addresses of their registered owners.

Some 70 miles away in Omagh, standing with his back to one of Europe’s biggest post-war crime scenes, the Detective Chief Superintendent charged with catching the bombers had very little to go on. The failure to share the vital intercept intelligence with detectives, robbed them of the chance to make arrests within the so-called “Golden Hours” — the 24 hours immediately after a crime when forensic and other opportunities are at a premium.

Judged by the failure to bring the IRA to book in cases like Birmingham, Omagh, and the 200 comfort letters to the IRA, the prime minister’s recent criticism that legacy investigations were “patently unfair” to “our armed forces” might seem fair comment. At first glance PSNI statistics do indeed look biased. While republican groups killed nearly six times (2,152) the numbers killed by the army and the police (362), the PSNI are reviewing almost every killing by the security forces (354) compared to only 530 by republican groups.

But there is no bias. The criminal justice system resolved the majority of killings by republicans by locking up thousands of them. Even so, the majority of PSNI investigations into conflict-related killings are still mostly on armed republican and loyalist groups (70 per cent) — not soldiers (30 per cent ). The prime minister got it so badly wrong that the PSNI Chief Constable George Hamilton felt he had to put the record straight. “Our figures are out there,” he said. “The facts speak for themselves.”

Still, I hear you say, soldiers were on the streets lawfully with guns, the IRA were not. Soldiers were required to act within an ethical code and within the law. The IRA did neither, often engaging in acts so evil and barbarous as to forfeit any claim to the “armed struggle” mantle the seek for posterity. What else explains, as Colonel Kemp so powerfully puts it, the “thugs who prowled the streets of Londonderry using power drills to disable teenage boys who stepped out of line”? Or, the decision to bomb a Cenotaph on Remembrance Day, killing 11 people; or the use of civilians as proxy bombs, holding their family hostage while forcing them to drive to a security force base with a bomb strapped to their vehicle detonated on arrival — a tactic adopted by FARC in Colombia, and by IS in Syria.

On this view, the police should continue to relentlessly pursue old IRA men for the death and suffering they inflicted — and lay off old soldiers. In other words, there should be an amnesty for soldiers, something the Defence Select Committee last year urged the government to consider. At first, the government agreed to include this “alternative approach” in the latest of its interminable rounds of legacy “consultations” in Northern Ireland on how killings should be investigated, documented and the “truth” about them “recovered”.

This, too, soon ran headlong into the “embuggerment” factor. An amnesty for soldiers alone doesn’t meet our legal “Right to Life” obligations under Article 2. Impunity for the state against civil or criminal proceedings is viewed as the “epitome of impunity” contrary to international law because states have a duty to end impunity for “state actors”.

And there’s also the continuing Article 2 obligation to conduct an effective, independent and transparent investigation into past killings  for those wanting details of how their relatives were killed by the state. So the state can’t just drop everything and remain passive about its own conduct while pressing on with prosecuting its adversary.

This explains why, having first been open to the possibility of a statute of limitations for soldiers (an amnesty by another name), the government has now withdrawn it from its latest consultation.

The only way an amnesty for soldiers is likely to be lawful is if the other armed combatants — both IRA and Loyalists — were  also given amnesties. As Northern Ireland Secretary Karen Bradley says, “A statute of limitations would not be possible under international law without extending it to terrorists. That is something I could not support.” It is, however, something which the Defence Secretary Gavin Williamson says he could support. “It is clear to me that our veterans need the protection of a statute of limitations in respect of Troubles-related offences,” Williamson wrote to the prime minister. “If this means a wider amnesty, so be it.”

Left to themelves, IRA leaders, many of them now Sinn Fein politicians, might very well embrace an all-encompassing amnesty. But Sinn Fein are hostage to their very substantial electorate, who have made it clear they will not tolerate the idea of soldiers not being brought to book. The DUP, on the other hand, loves the idea of the IRA being brought to book but can’t stomach the notion of this happening to any more soldiers.

So, when it comes to legacy, opposition to the wider amnesty, albeit for opposite reasons, is one of only two things that Sinn Fein and the DUP do agree on. They also agree that any “legacy” mechanism should put victims and survivors first. But of course what constitutes a “victim” soon runs headlong into the vicissitudes of tribal antipathy, paranoia and bloody-mindedness because it requires the relative of a soldier shot in the back by a republican to accept that that self-same republican was as much of a victim if he or she was later shot dead — armed or unarmed — by a soldier. Conversely, it requires the relative of an IRA bomber shot in the back by a soldier to agree that that soldier was as much of a victim if he or she was later shot dead by the IRA. Since republicans are responsible for the lion’s share of killings, they have most to gain by accepting this definition of “victim”, so most of them do. Since Unionists have most to lose, by and large they don’t. 

The government’s solution to reconcile the entire labyrinth of competing “embuggerment” factors is a complex web of criminal and non-criminal organisations and an ever-lengthening list of acronyms.

The criminal route would see an Historical Investigations Unit (HIU) with police powers continuing to investigate unsolved killings and sending reports to the DPP; where no prosecutions were possible, the non-criminal route would kick in with a written HIU report for the victims or their relatives. There would also be “information recovery” by an “Independent Commission for Information Retrieval” (ICIR) open to relatives who want to find out what happened to their loved ones. Information would be retrieved from paramilitaries, government and the security forces through trusted interlocutors; “truth and reconciliation” would be fostered by an Oral History Archive (OHA) compiled from public record material and those who want to tell their stories; reconciliation initiatives would be promoted through the creation of an Implementation and Reconciliation Group (IRG).

However, although Northern Ireland’s political parties agreed to this legacy structure in 2014 after 12 weeks of talks, four years on there is still no earthly prospect of it functioning, because politicians in Belfast are simply incapable of agreeing how to implement it. Yet year after year the government continues to give them a veto over legacy even though Westminster is sovereign.

This veto means that absent an Article 2-compliant “legacy” process — agreed by the parties — the law must continue to take its course. Some conservative and unionist politicians mutter that having authorised the prosecution of Dennis Hutchings and Soldiers A and C, the then Northern Ireland DPP, Barra McGrory QC, was playing politics. That would only be true had McGrory not prosecuted when advised by the police there was a case to answer. Instead, he has had no choice but to dispassionately apply the rule of law.

Even if — miracle of miracles — the parties did reach agreement, the chances of the legacy bureaucratic behemoth functioning with frictionless borders are almost zero. However rare prosecutions by the HIU may be, as long as armed groups, including the security forces, remain at risk of prosecution, they’re as likely to unburden themselves to the ICIR as turkeys voting for Christmas.

How, then, to decriminalise legacy while keeping intact a robust legal process that delivers legal accountability without collapsing the civil justice system which is wh
Since stepping down as DPP in 2017, McGrory has come up with a radical proposal. Tear up the government’s consultation system, end the political parties’ veto over agreement on a legacy process, and pass primary legislation suspending all legacy-linked civil and criminal court-based processes — including inquests. Retain the HIU, but switch its inquiries from criminal prosecutions into a new custom-made judicial process — working title, The Legacy Commission — staffed by judges.

Instead of HIU reports going to the DPP, they would go to the Legacy Commission with findings or recommendations about who or what was responsible for a death. HIU reports whose evidence fell below the civil standard (balance of probabilities) — which would be the vast majority — would be turned into written reports for families. The rest would go to a hearing, much like an inquest, where the presiding Commissioner would have the power to make findings concerning individual or collective responsibility. However, that finding would be the end of the matter with no appeal other than by judicial review.

This will win McGrory no friends among republican nationalist or Unionist politicians; all the more reason why their veto over breaking the stalemate should be removed. And, of course, so dependent on the DUP is the government that nothing is likely to change until the parliamentary arithmetic changes.

For any government, though, the attraction of McGrory’s proposal is that it would still be Article 2-compliant by providing an effective investigation process into conflict killings by the state. Punishment is not a condition of Article 2 compliance. It would also be much cheaper in the long run because the process would be finite and would end the spectacle of old soldiers — possibly old police officers too — going to prison.

For the former combatants, the absence of any criminal sanction might incentivise some to come forward to the ICIR to unburden their secrets. With more soul-baring, hopefully there would come the start of tangible reconciliation because they would set an example. “My fear,” says McGrory, “is that if we continue to try to shoehorn the legacy problem into the justice system, we risk self-destruction.”

McGrory is right. A genuine peace process cannot also be a police process that continues until the last soldier and terrorist die. Ending the police process offers the only realistic path to peace and reconciliation.

Thanks to Brexit, the legacy clock is ticking, for Brexit has revived old enmities, however much Brexiters may wish to downplay this. Anything that re-emphasises the border — which Brexit does — reawakens the tensions over identity and provides a rallying point for republicans, dissidents and non-dissidents alike. In the 1970s, I saw at first-hand how the border strained Anglo-Irish relations to breaking point, and the nonchalance with which the most ideological Brexiteers have casually airbrushed the border’s toxic history is, to me, quite bewildering, as it is to the PSNI Chief Constable. “For those that say we or others are overplaying the border for Brexit in policing terms — they’re simply wrong,” he says. Brexiteers forget — if they ever realised — just how hard-won the Good Friday Agreement was.

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