THE online news outlet The Detail reported on April 15 that the Director of Public Prosecutions in the Six Occupied Counties could be asked to reopen hundreds of cases involving killings from the 1970s following the discovery of statements in newly declassified papers which suggest British soldiers were allowed to escape prosecution.
The declassified British Ministry of Defence papers from the 1970s revealed an agreement which allowed British army officers to privately lobby successive Attorney Generals not to prosecute soldiers for serious offences, including murder.
The Detail revealed that DPP in the Six Counties Barra McGrory has already been asked to reopen the investigation of an unarmed IRA man shot dead by troops in 1972, after references from an army officer in the declassified documents suggested that the decision not to prosecute the soldiers who fired the fatal shoots had been borderline to say the least.
The documents, uncovered by researchers from the Pat Finucane Centre, reveal:
The Attorney General was always ready to receive representations from army officers to prevent soldiers being charged with serious crimes.
Less than 10% of all cases submitted to the DPP, regarding shootings or assault incidents involving soldiers, resulted in prosecutions.
MoD officials were assured that the Attorney General and DPP were all ex-army and by no means unsympathetic to the plight of soldiers.
By 1976 the British army had paid out the equivalent of £5.7m in todays money in more than 400 out-of-court settlements to avoid soldiers being convicted of unlawful shootings and assaults on civilians.
The British armys most senior soldier warned that any decision to convict soldiers would force the British army to review its entire operation in the Six Counties.
The confidential documents reveal repeated attempts by the armys most senior soldier in the Six Counties, Lieutenant General Frank King, to prevent soldiers from being prosecuted by the courts, for a range of offences, including murder.
By January 1975 the British government had made 410 out of court settlements in cases in which it expected soldiers to be found guilty in court.
By July 1976 the British Ministry of Defence had paid £806,827 in settlements, the equivalent of £5.7m in 2013.
The documents reveal assurances given to army chiefs by then Attorney-General, Sir Peter Rawlinson, that his officials were not unsympathetic to the plight of soldiers in the Six Counties and would do all in their powers to avoid prosecutions.
In a letter to his Adjutant General Cecil Black in January 1974, General King wrote:
He (Sir Peter) assured me in the plainest 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 firsthand 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 (sic).
Rather the reverse, since directions not to prosecute had been given in more than a few cases where the evidence, to say the least, had been borderline.
The case of the shooting of Joseph McCann, a well-known [Official] IRA leader, in April 1972 was cited as an example.
The confidential papers reveal how the Attorney General had assured the army officer that less than 10% of all cases submitted to the DPP, regarding shootings or assault incidents involving soldiers, resulted in prosecutions.
General King said he had been assured by Sir Peter that no soldier was ever prosecuted in these cases unless there was evidence the soldier had substantially overstepped the mark.
I am bound to say that my worst fears have been allayed, at any rate for the time being, by the Attorney Generals assurances and I feel I am in a position to reassure all soldiers in Northern Ireland on this question, he said.
However the MoD papers reveal that the army officer remained dissatisfied with the Attorney Generals assurances and instead argued that 20 soldiers accused of serious crimes, including the shooting dead of unarmed civilians, should be tried by court martial, rather than civil courts.
My request is 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 could not be served equally appropriately by the exercise of military jurisdiction.
In a letter to Samuel Silkin QC, who had replaced Sir Peter as Attorney General in April 1974, General King warned that any decision to try and convict soldiers through civilian courts would force the British army to review its entire operation in the Six Counties.
My apprehension is that if a series of prosecutions of soldiers in the civil courts, arising out of operational incidents, were to result in several soldiers being convicted and sent to prison, the effect on operational efficiency and morale of the army in Northern Ireland would be extremely serious.
It would not be over stating the position to say that the whole method of the army in the province would need careful reappraisal. The public interest considerations in such event are clear.
The papers also reveal the secret arrangement in which senior army officers were allowed to personally lobby the Attorney General not to prosecute soldiers, in his January 1974 letter, King wrote:
I believe that the presentation of our worries to the Attorney General was an extremely valuable exercise. He was left in no doubt about the nature and extent of our anxieties; and the assurances which he gave me in return are as specific as they are strong. Furthermore, he made it clear that he is always ready to receive representations from me about any particular case and he undertook to give any such representations the most careful consideration.
Later in the letter he added that the: Attorney General has now undertaken to invite my views on the public interest in aspects of the prosecution of a soldier arising out of an operational shooting incident before any final decision in the case is reached.
In a follow-up letter one week later, he wrote: I think these meetings have been highly successful, although there still remains a danger of a soldier being tried as a criminal when the GOC (General Officer Commanding) considers that he was performing his military duty properly, or was guilty of no more than a bona fide error of judgement in difficult circumstances.
It seems to me that it is only in these unlikely circumstances that ministerial intervention might become necessary. In the meantime there seems every reason to hope that there will never be a conflict between the Attorney General and the GOC as to what sort of conduct merits a criminal trial.
Dr Huw Bennett is a lecturer in International Politics and Intelligence Studies at Aberystwyth University and has written extensively on the role of the British army in Northern Ireland.
In his 2012 academic paper Smoke Without Fire, Dr Bennett argues that the criminal courts exercised a weak restraint on the army, often giving soldiers the benefit of the doubt.
The Attorney General and the DPP refused to break the law in order to help the army avoid punishment for its crimes, he said.
But they were willing to cooperate and bend the rules in a manner hardly consistent with the demands of an impartial justice system blind to the identity of the accused.
He concluded: Overt bias would not be tolerated by the legal authorities. They were, however, willing to err in the armys favour on `borderline cases including alleged murders.