Briefing paper for families on British army killings/investigations/prosecutions + LIB/PSNI fact sheet

24 February 2017

UPDATE FOR FAMILIES: British Army killings/ prosecutions etc. There has been extensive media coverage recently covering the alleged “witch-hunt” against former members of the British Army for actions carried out during the conflict. There has also been speculation that the British government would introduce legal mechanisms to prevent or limit such a “witch-hunt” and possible withdraw from the European Convention on Human Rights. PFC would like to take this opportunity to bring some clarity to the conversation.

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Prosecutions of former soldiers- how did they come about? :

There are currently two cases were former soldiers are being prosecuted for murder and attempted murder. PFC has been involved in both cases over many years.

  • Dennis Hutchings is being prosecuted for the attempted murder of John Pat Cunningham, a 27 year old vulnerable adult from Benburb in 1974. The charge is “attempted murder” as two soldiers shot John Pat in the back and investigations have been unable to attribute the fatal shot to either. The other soldier involved has passed away.
  • Two (unnamed) former soldiers are also being prosecuted for the murder of Joseph McCann, a 24 year old father of six, in the Markets area of Belfast in 1972. Joe was a member of the Official IRA at the time of his death.

In both cases the families engaged with the Historical Enquiries Team (HET) and received reports criticising the actions of the soldiers based on the evidence available. In both cases the families then applied to the Attorney General seeking a new inquest, who in turn referred the cases to the Public Prosecution Service (PPS). The PPS then asked the Legacy Investigation Branch (LIB) of the PSNI to investigate the cases that resulted in the arrest and prosecutions of these three soldiers.  The PFC has supported both the Cunningham and the McCann families throughout this process.

Both the tabloid press and MPs have sought to suggest that ‘lawyers’ have benefited financially from these prosecutions.  The only lawyers who benefit financially from prosecutions of former soldiers are those English based firms who are appointed by the MoD and are paid for by the taxpayer to defend former soldiers. If the Prosecution Service directs a prosecution the victim, the family of the person killed by a soldier, are not legally represented in this process and are not entitled to legal aid. Solicitors in these cases have offered advice pro bono.

HET → ATTORNEY GENERAL→ PPS → PSNI LIB → PROSECUTION

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European Convention on Human Rights & the Human Rights Act

There have been a number of stories stating that the British government may repeal the Human Rights Act, and others go further and state that the UK should withdraw from the European Convention on Human Rights (ECHR).

  • The Human Rights Act 1998 made it easier for UK citizens to directly enforce the rights under ECHR against statutory bodies (including the right to an investigation into their loved ones’ death under Art. 2), without the need to take their cases to the European court of Human Rights;
  • Repealing the Act would not remove an individual’s right under ECHR, but would make it more difficult to enforce them directly;
  • The ECHR was drawn up and agreed by European states following the atrocities and abuses during WWII to ensure they would never be repeated. The UK government was instrumental in drafting the Convention & one of the first signatories;
  • There have been some backbenchers calling for the UK to rescind the Convention. We do not think this is likely;
  • Exiting the ECHR would signify a major change in international law, and would be incredibly damaging to the UK’s reputation as they would be seen to withdraw from an internationally binding Convention designed to protect the fundamental rights of their citizens. This has also never happened before in any other country;
  • Even if the UK government took the extraordinary step to withdraw from the Convention, they would still be bound by the obligations that arose under the Convention while they were a member (Art. 58 of the ECHR). Therefore you would still have the right to an effective investigation REGARDLESS of whether they leave or not.
  • These rights and institutions are COMPLETELY SEPARATE from the European Union and the issues arising through BREXIT.
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Statute of Limitations

  • The Parliamentary Defence Committee recently recommended a statute of limitations to protect former armed forces from prosecutions and other legal challenges.
  • This proposal is immoral and illegal and would drive a coach and horses through the Good Friday Agreement.
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The fact sheet on investigations supplied to the PFC by the Legacy Invetigations Branch of the PSNI following a recent request

(As noted above some of the figures are wrong)

Fact sheet on Legacy Investigation Branch:

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Caseload

The caseload of Legacy Investigation Branch consists of:

  1. The review of homicide investigations.
  2. Homicide investigation or re-investigation responsibility - LIB has responsibility for what was previously within the caseload of HET. A total of 1,615 cases were completed by HET, 923 remain within the current caseload.
  3. The review of those subject to the “On-the-Runs” scheme, who may or may not be linked to homicides.

In addition, LIB receives (through the Chief Constable) referrals from the Director of Public Prosecutions, pursuant to Section 35(5) of the Justice Act 2002 and recommendations for further investigative action arising from the publication of reports by the Police Ombudsman.

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The work of LIB:

  • In January 2015, the Chief Constable decided to draw together the PSNI’s legacy work and formed Legacy Investigation Branch. There are 55 detectives in LIB. LIB takes its responsibilities seriously and without fear or favour.  
  • Balance of work - some of LIB’s caseload is driven by a legal requirement  to undertake investigative  work such as referrals  from  the  DPP and where  credible  evidence  exists  in relation to a homicide.
  • The work of LIB includes the events of Bloody Sunday following the Saville Public Inquiry which raised a number of questions or concerns that required further investigation.  A number of former soldiers were interviewed in England under voluntary arrangement and a file has now been submitted to the PPS.
  • LIB is also conducting an investigation into the Military Reaction Force (MRF). This investigation was  referred  to the  PSNI  by  the  Director  of Public Prosecutions  (DPP) following  a Panorama documentary  which  contained comments by former soldiers that called into question the lawfulness  of the actions  of some members  of the MRF in some circumstances.
  • The third military investigation relates to the fatal shooting of John Pat Cunningham in Benburb. This investigation was also referred to the PSNI by the DPP and resulted in the arrest and impending prosecution of a former soldier for attempted murder.
  • The remainder of LIB’s work is progressed using the Case Sequencing Model which takes a number of factors into account including whether any of the individuals involved in incidents present a risk to the public today.  In the vast majority of cases, this will bring those cases involving terrorists, rather than soldiers, to the fore. At this stage, 6 cases are currently allocated for review through this process and they all relate to terrorist actions.
  • LIB is also investigating IRA terrorist involvement in the Kingsmill Massacre and the murder of Eamonn Collins in Newry which is attributed to the IRA.
  • The PSNI is absolutely focused on bringing offenders to justice, regardless of the background of that individual.
  • LIB is looking at 1,118 killings. A total of 530 are attributed to republicans, 271 are attributed to loyalists, 354 are attributed to security forces and 33 are deemed unknown.
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Completed caseload

Of the 1,615 cases completed by the HET:

Attribution  
Republican 1,038
Loyalist 536
Security Forces 32
Unknown 9

Within these 1,615 cases, 556 of the cases contain a deceased who was a security force member.

Within these 1,615 cases are 2,051 deceased people. A total of 669 of the deceased were security force members.

The 32 completed reviews of deaths attributed to Security Forces have been placed back into the ‘Remaining Caseload’ below as a result of the direction of the former Chief Constable that all completed reviews relating to the actions of the army would be conducted again in accordance with current investigative standards.  

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Remaining Caseload

Of the 923 Troubles-related cases within the caseload of Legacy Investigation Branch:

Attribution  
Republican 379
Loyalist 230
Security Forces 283
Unknown 31

Within the 923 cases, 219 of the cases contain a deceased who was a security force member.

Within these 923 cases are 1,188 deceased people. A total of 298 of the deceased were security force members.

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Active Caseload

The active PSNI caseload consists of:

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Team 1 – 12 detectives

One team is working on the “On-the Runs” enquiry which was established as a result of the report of Lady Justice Hallett.

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Team 2 – 19 detectives

  • Investigation of 2 murders and other serious offences by a Loyalist.
  • Investigation into the murder of Jean McConville (attributed to Republicans)
  • Investigation into the murder of Eamon Collins (attributed to Republicans)
  • Investigation into the activities of the Military Reaction Force (MRF). This was referred to the PSNI by the DPP. (attributed to Security Forces)
  • Investigation into the fatal shooting of JP Cunningham. This was referred to the PSNI by the DPP. (attributed to Security Forces)
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Team 3 – 13 detectives

  • Investigation into the events of Bloody Sunday (fatal shots attributed to security forces), arising out of the Saville Inquiry.
  • Investigation into murders and an attempted murder at Kingsmill (attributed to Republicans)
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Team 4 – 11 detectives

  • Review of 6 separate homicide incidents (attributed to Republicans)
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Externally led investigations

  • Operation Kenova - investigation into murders and abductions (attributed to Republicans) and the role of an alleged military agent referred to as 'Stakeknife'. This was referred to the PSNI by the DPP.
  • Operation Klina - investigation in a fatal shooting in a hayshed (attributed to Security Forces). This was referred to the PSNI by the DPP.

Excluding the “On-the-Runs” enquiry, the PSNI active caseload is therefore:

Attribution  
Republican 8
Loyalist 1
Security Forces 5
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