PFC's latest submission to the Committee of Ministers
| 07 May 2020
The Pat Finucane Centre (PFC, Derry/Armagh/Belfast, Northern Ireland) in conjunction with Justice for the Forgotten (JFF, Dublin) wishes to make the following Rule 9 submission to the Committee of Ministers on its supervision of the following cases relating to security force actions in Northern Ireland:
Jordan v the United Kingdom, judgment final on 4 August 2001
Kelly and Ors v the United Kingdom, judgment final on 4 August 2001
McKerr v the United Kingdom, judgment final on 4 August 2001
Shanaghan v the United Kingdom, judgment final on 4 August 2001
McShane v the United Kingdom, judgment final on 28 August 2002
Finucane v the United Kingdom, judgment final on 1 October 2003
Hemsworth v UK, judgment final on 16 October 2013
McCaughey & Others v UK, judgment final on 16 October 2013
The PFC is a non-party political, anti-sectarian human rights group advocating a non-violent resolution of the conflict on the island of Ireland. We believe that all participants to the conflict have violated human rights.
The PFC asserts that the failure by the British state to uphold Article 7 of the Universal Declaration of Human Rights, “all are equal before the law and are entitled without any discrimination to equal protection of the law”, is the single most important explanation for the initiation and perpetuation of violent conflict.
We provide an advocacy, advice and support service to families, bereaved/injured as a result of the conflict, who wish to engage with statutory agencies including the (now-defunct) Historical Enquiries Team (HET), the Coroners’ Service (CSNI) the Office of the Police Ombudsman of Northern Ireland (OPONI), the Police Service of Northern Ireland (PSNI) and An Garda Síochána in the Republic of Ireland (through JFF).
The aim of our work is to assist families in establishing the facts surrounding the death/s of their loved one/s or physical/psychological injuries sustained. We are also engaged, on both sides of the border, in working with individual families in a project known as the Recovery of Living Memory Archive (RoLMA).
We currently provide this service to approximately 200 families across Ireland through four offices in Derry, Belfast, Armagh and Dublin (in partnership with Justice for the Forgotten). Many of these cases engage Article 2 ECHR issues, while others engage Article 3.
We respectfully submit this Rule 9 submission for consideration at the meeting of the Ministers’ Deputies in June 2020.
The PFC has made previous Rule 9 submissions to the Committee of Ministers (CM) on the same group of cases in relation to what are now called the “package of measures” agreed by the UK. Our most recent submission was made in July 2019. We make this submission to update the CM on developments, or more appropriately, the lack of them, regarding the UK government’s implementation of the “package of measures.”
Stormont House Agreement
As stated in our previous submission the PFC provided a substantive submission to the Northern Ireland Office (NIO) as part of their consultation process (previously shared with CM) and reflecting the views of the 200+ families we support. The PFC still believes that the establishment of an independent policing body, the Historical Inquiries Unit (HIU), an Oral History Archive (OHA) and the Independent Commission on Information Retrieval (ICIR) offer the best potential mechanisms to meet the needs of most victims and survivors affected by the conflict. We remain concerned, however, that victims and survivors outside of the north of Ireland will not receive parity of opportunity to satisfy their truth and justice needs. PFC has made representations to the Irish government in respect of the needs of victims and survivors we support in the Republic of Ireland.
With this in mind we were very concerned when, on the 18th March 2020, the British Government set out its thinking on progressing legacy issues in Northern Ireland. This Written Ministerial Statement (WMS) is completely at odds with all previous commitments made by the British Government not only to the Committee of Ministers but also to victims and survivors and the general public where the Government made assurances that they were committed to the full implementation of the SHA.
As recently as the new British Government’s Queen’s Speech in December 2019 and, again, in the 9th January 2020 document ‘New Decade New Approach’ deal, (which restored the NI government) the British government committed to putting in place legislation to enact the SHA. It is our opinion that the government is defaulting on the SHA proposals to deal with legacy issues. It should be remembered that the SHA was arrived at only after long months of discussions and deliberations and was based on numerous other consultations and initiatives going back over many years, including the Haass-O’Sullivan negotiations (2013) and the Consultative Group on the Past (2009). The proposals in the SHA draw largely from these previous initiatives and it is therefore dishonest and devious of the government to attempt to deviate completely from its agreed position. This minimalist statement was made on the same day that the Overseas Operations (Service Personnel and Veterans) Bill was announced, a Bill that would introduce a qualified presumption against prosecution against members of the British armed forces after a five year period.
This Bill is an attempt to ensure a level of impunity for British personnel serving ‘overseas’. It is significant that this Bill and the Written Ministerial Statement (WMS) were both announced on the same day and that in the opening paragraph it is acknowledged that one purpose of the WMS was to “ensuring equal treatment of Northern Ireland veterans and those who served overseas.” Again this should be seen in the context of the government’s attempts to ‘protect’ veterans who served in Northern Ireland as part of ‘Operation Banner’ from being investigated for their involvement in disputed killings.
The government has repeatedly claimed that these disputed killings have already been investigated and should not be re-investigated. However there are court rulings which prove that many of these disputed killings were never properly investigated. See for instance the ruling by KERR J in respect of the British Army killing of Kathleen Thompson in November 1971:
I am satisfied that in 1971 one of the procedural safeguards which was necessary to vindicate and which underpinned the substantive right under article 2 of the European Convention on Human Rights was that there be an effective investigation. By any standard it is clear that the investigation into the death of Mrs Thompson was not effective.
More recently Her Majesty's Inspectorate of Constabulary found that the Historical Enquires Team’s approach to reviewing cases where the military were involved in killings was not Article 2 compliant. We believe the SHA is the best mechanism to deal with the legacy of the conflict and that anything less than its full implementation will not only sell victims and survivors short but will not allow the government to live up to its international commitments to Article 2.
The SHA proposed four separate bodies to deal with legacy issues; the Historical Investigations Unit (HIU); the Independent Commission on Information Retrieval (ICIR), an international agreement signed between the Irish and British governments on 15 October 2015; the Oral History Archive (OHA) and the Implementation and Reconciliation Group (IRG). The HIU was intended to investigate all cases which currently sit with the PSNI’s Legacy Investigations Branch and the Office of the Police Ombudsman for Northern Ireland. These investigations were to be Article 2 compliant and a report was to be given to the family. The government’s current proposals seem to roll the four proposed bodies into one and to limit the investigative scope to a mere desktop review unless new and compelling evidence can be found. We would argue the only way to find new and compelling evidence is to adequately investigate each case.
The proposal would also abolish the ICIR. This appears to have been done without consulting the Irish government given the response of the Tánaiste, Simon Coveney, who said in response to the proposals:
The need for agreement by both Governments to any changes of approach applies importantly and specifically to the legislation that would implement the Independent Commission on Information Retrieval on foot of the Treaty between our two Governments signed in 2015. Any approach has to be coherent across both jurisdictions.
The proposals also suggest that once this new legacy body has examined and reported on each case that it will be closed forever even if new evidence was to be subsequently found. This is contrary to the government’s obligations under Article 2.
Office of the Police Ombudsman
The PFC has repeatedly drawn the Committee’s attention to the inadequate funding provided to the Office of the Police Ombudsman for Northern Ireland (OPONI) which currently stands at less than 2% of the NI criminal justice budget. It is important to note that:
- OPONI’s History Directorate has an outstanding caseload of over 400 cases, many concerning complex investigations where collusion between loyalist paramilitaries and the RUC (including the use of agents) is alleged. In many cases this involves multiple, linked murders and other serious crimes;
- Chronic under-resourcing of OPONI has resulted in unacceptable delays (of several years in many instances) in commencing and completing investigations;
- Lengthy delays undermine the Office’s ability to function as an effective part of the British government’s ‘package of measures’, and fulfil their Article 2 procedural duties. This has eroded, somewhat, the public’s confidence in OPONI
As previously submitted, we believe the persistent under-resourcing of this important office is a deliberate political policy by those determined to obstruct investigations into the relationship of some within the RUC and loyalist paramilitaries during the conflict;
PFC refers the Committee to our previous submissions where we have highlighted other examples of the PSNI failing in their statutory duties to provide OPONI with the materials they require. This includes, for example, the former Ombudsman, Dr Maguire, initiating a legal challenge against the PSNI following repeated failures to provide documentation;
Due to the Covid-19 pandemic, the Police Ombudsman has temporarily suspended all History Directorate investigations due to “severe staffing issues”. This will result in further delays for families who have already waited years for investigations and reports;
PSNI & OPONI
In February 2019, the former Police Ombudsman, Dr Maguire, stated that his investigators had identified significant, sensitive information, some of which relates to covert policing, which is held by police but was not made available to his History Directorate staff. The discovery was made during OPONI’s investigation of matters connected to the 1992 shooting at a bookmakers’ shop on the Ormeau Road in Belfast in which five people were killed. OPONI stated that the new material opened new lines of inquiry in that investigation, and in its investigation of events connected to the activities of Loyalist paramilitaries in the north-west between 1988 and 1994, including the murder of teenager Damien Walsh in west Belfast in 1993.
Again, in October 2019, the newly appointed Police Ombudsman, Marie Anderson, had to inform a number of families, some of whom were affected by the February 2019 discovery, that investigations might be delayed further following the PSNI’s identification of new material that was potentially relevant to their cases. Again, this resulted in disappointment and further delays for families. OPONI has since confirmed that, having reviewed this additional material, none of it was significant, or required new lines of enquiry or further work, or related to matters already published.
PFC provides support to a number of families engaging with OPONI who were directly impacted by the disclosure issues. Some had been informed that OPONI’s investigation into their loved one(s) deaths had been completed and they were awaiting a report. These reports were not released as OPONI investigators now had to review the new material provided by the PSNI to see if it resulted in evidential opportunities. Understandably this was deeply worrying and disappointing for these families. PFC also provides support to families indirectly affected, including families awaiting investigations to commence. With limited resources redirected to examine the PSNI material, these families faced even further delays.
Although the PSNI immediately acknowledged the disclosure failings, apologised to those affected, and insisted that it had not sought to deliberately withhold the information, families who have been affected remain deeply suspicious. Their confidence in the PSNI to deal fairly, truthfully and transparently - with matters arising from the conflict has been detrimentally impacted. They are questioning whether ALL potentially relevant materials have in fact now been disclosed.
The CJINI Inspection
Following Dr Maguire’s February 2019 statement, the Department of Justice (DOJ) called on the Inspector of Criminal Justice in Northern Ireland to undertake an independent review of the methods the PSNI use to disclose information in respect of historic cases to the OPONI.
In April 2020, the Criminal Justice Inspection NI (CJINI) published their review.The Chief Inspector, Jacqui Durkin, called on the PSNI and the OPONI to “work hard together” to strengthen trust and repair damage to public confidence stating:
… it is critical that effective arrangements for disclosure are a key part of the OPONI investigation process otherwise time and resources are wasted, legal challenge is inevitable and, critically, families are frustrated, angry and hurt further.
CJINI made a number of strategic recommendations outlined below:
- The PSNI should urgently put in place an effective system to provide corporate assurance that all material provided by the Liaison Office (LO) was that required in the original request from OPONI;
- Ensure the disclosure and discovery regimes were effective and consistent across all Departments;
- Within one year of the publication of this Review, the PSNI and the OPONI should revisit and revise the Memorandum of Understanding (MoU) to:
- Re-examine the MoU procedures for requesting and responding to requests for disclosure to allow the PSNI to effectively resource the OPONI historic investigations;
- Take account of the issues raised in the CJINI Review, and the developments in the PSNI to introduce the standardised model;
- Ensure that the MoU satisfied each organisation’s obligations and enabled productive, effective and professional working relationships.
CJINI also made a number of operational recommendations, including recommending that the PSNI immediately review its internal processes for appointing and training staff to perform the role of an OPONI Liaison Officer (LO), and also review their current and future staffing levels for this role. They also recommended that the PSNI Op Turnel Team complete the full inventory of all legacy systems and data sources, including a full audit of the PSNI’s historic records to establish what is available, where it is located, and if there is any risk of deterioration. OPONI should immediately review how its staff views material provided by the PSNI so as to quality assure and dip-sample the analytical products against the original disclosed material in order to assure the Senior Investigating Officer (SIO) and the OPONI that all material relevant to the investigation was identified and captured.
Families are not reassured by promises from the former Chief Constable, outlined in the Review and in the media, that the PSNI intends to give appropriately vetted OPONI staff full and unfettered access to the PSNI legacy systems, (with work ongoing to clarify the legal position of this). We note that the former Chief Constable also states that he had ‘no selfish ambition to retain exclusive control over the material during the life of a HIU’.
PFC agrees with CJI’s findings, but submits they should strengthen the argument that the PSNI is not the appropriate body to deal with legacy cases, either as investigators or gatekeepers of evidence/ information. The PSNI has repeatedly impeded the OPONI’s (and the Coroner’s) ability to fulfil its investigative duties through disclosure failures and/or delays. CJI’s findings, along with other issues raised in this submission, clearly demonstrate the need for an independent body with full policing powers and unfettered access to the body of potentially relevant material held by ALL departments (including PSNI/ RUC files and Ministry of Defence archives).
Police Service of Northern Ireland - Legacy Investigations Branch (LIB)
The operation of the LIB has been temporarily suspended due to the Covid-19 situation, with the staff redeployed to help the PSNI deal with the current situation. However on April 23rd the Chief Constable announced that the LIB will be fully operational again as of May 1st. We strongly believe that the LIB is not sufficiently independent to undertake Article 2 compliant investigations. This belief was reinforced in the Northern Ireland Court of Appeal in July 2019 when the Court delivered its judgement ‘In the matter of an application by Edward Barnard for Judicial Review’ The Court found that “The LIB is not sufficiently independent for the purpose of carrying out such a report.” The report referenced by the Court had been promised by the Historical Enquiries Team (HET) to families of the ‘Glenanne Series’ of attacks. Following this judgement the Chief Constable of the PSNI asked the former Chief Constable of Bedfordshire, Jon Boutcher, to undertake the investigation required to produce a report. See below for further information.
Giving evidence at the February 13 meeting of the NI Assembly Justice Committee the PSNI Chief Constable said,
In terms of the whole legacy question… we want that responsibility
moved away from policing here… Our position is we would welcome it not
being the responsibility of the PSNI.
As mentioned above the Appeal Court in Belfast ruled that families bereaved in the Glenanne series of killings have a "legitimate expectation" of a thematic report into collusion in the murders. Consequently, the Chief Constable of the PSNI has invited the former Chief Constable of Bedfordshire in England, John Boutcher, to compile this report.
Those compiling the report, the Appeal Court ruled, must have an equivalent standard of independence as that enjoyed by the HET’s "White Team" which had initially raised the legitimate expectation. In addition, the Appeal Court judgement ordered a "fresh approach" and directed that the head of the new investigation must decide him/herself how to progress the writing of the report: This fresh approach, the court ruled, must determine an "appropriate response to the expectation generated" while refraining from directing how the "independent officers should proceed".
It limited the PSNI Chief Constable's role to appointing "independent officers who should then determine how to respond to the expectation". Having agreed terms of reference with the bereaved families (through the Pat Finucane Centre) and irrespective of any possible further legal appeal by the PSNI, work has now commenced, subject to restrictions imposed by the current Covid-19 health crisis.
Members of the team assembled by Mr Boutcher are now involved in preparatory work, gathering and reading papers and files on the series of murders. In addition, Mr. Boutcher has met many of the Glenanne families collectively and has spoken to several family members in the Republic of Ireland individually. He is continuing to speak to individual families by phone in order to introduce himself and his team.
The Pat Finucane Centre and the bereaved families we support welcome the legacy inquests funding announcement of 28th February 2019, not least because the inquest backlog and associated reform proposals are finally being addressed, with a concrete execution plan (repeatedly addressed in our previous submissions). We refer once again to the continuing pain and injustice these delays have inflicted on many bereaved relatives.
That said, this takes place in parallel with further delays - and frustration caused - in other legacy mechanisms outlined elsewhere in this document. These delays may also impact on the legacy inquest process either directly or indirectly.
In June 2019, Presiding Coroner Mrs Justice Keegan held a State of Readiness event outlining the work undertaken to put in place arrangements to deliver the former plans, outlined by Coroner Lord Chief Justice Weir, for legacy inquests to be heard within a five year timeframe.
The purpose of this event was to provide an overview of how that plan would be put into practice. Supporting this, Justice Keegan issued a Case Management Protocol detailing how the out-workings of these cases would be managed.
Throughout September and October 2019, Justice Keegan conducted individual case hearings in relation to all outstanding legacy inquests.
In November 2019, following consideration of legal submissions made on the State of Readiness for each pending legacy inquest, Justice Keegan listed the inquests expected to be dealt with in Year 1, to commence in April 2020.
As well as providing information regarding how the remaining inquests would be brought to the point where they would be ready for listing, Justice Keegan also agreed to take a thematic approach to some of the inquests, given the concerns raised by NGO’s.
This would also ensure compliance with Article 2's stipulation that the state must implement the “broader circumstances” test which requires deeper investigation.
Inquests not listed for hearing in Year 1, are listed for ongoing case management reviews or administrative reviews in order to keep these cases on track for Year 2 – Year 5 progression.
This work commenced in January 2020, and it was anticipated that full inquest hearings would finally begin in April 2020. Due to the current Covid19 emergency, these have for now been put on hold.
Disclosure & Discovery Issues
The PFC continues to support bereaved families through the coronial process, including the recently completed inquest into the deaths of eleven people in August 1971, known as the ‘Ballymurphy Massacre’.
This inquest commenced in November 2018, after years of delay, and was completed in March 2020. Findings are due to be delivered by the Presiding Coroner Justice Keegan sometime this year.
We have reiterated in previous submissions that it is clear from the evidence heard in court to date that coronial inquiries fulfil an important Article 2 function, particularly in facilitating participation of the next-of-kin and allowing evidence to be tested and challenged in a way that is open to public scrutiny.
The PFC has attended most of the Ballymurphy Inquest hearings in support of the families and to monitor how state agency Article 2 obligations in this process are being fulfilled. We, however, once again remain disappointed that state agencies including the Ministry of Defence (MoD) and the Police Service of Northern Ireland (PSNI) regularly impeded the coroner’s ability to fulfil her important function through unacceptable delays in providing materials and other information.
Sadly this is not unique to this inquest. Another example is in relation to the inquest of Mrs Kathleen Thompson, a 47 year old woman, shot dead in the garden of her home in 1971 in Derry. Her inquest was due to run for a month in November 2017 yet is still outstanding due to the MoD's delays in providing names of relevant soldiers.
For example, an identified soldier who fired a shot said, during his witness evidence session at the inquest, he could not remember who was with him - while the MoD claimed they could not provide a list of soldiers who were with him either.
A barrister representing the Thompson family pointed out to the Coroner that the MoD was able to produce to the Bloody Sunday Inquiry names of every single soldier present in Derry on 31st January 1972 - just two months after Mrs Thompson was killed.
It was at this point the inquest adjourned so that the Coroner and barrister to Next of Kin could be provided with the relevant list of soldiers. This meant further significant delay, frustration and disruption in getting information to the Coroner and counsel to the Next of Kin or other properly interested parties.
This inquest was finally due to proceed on 23rd March 2020, one year and seven months since it was adjourned, and two years and four months from its initial start date, which had an anticipated sitting of one month.
The Coroner, in her State of Readiness statement says that the “central importance” to progress legacy inquests is “that the locations and sources of potentially relevant materials are identified”. The disclosure process and relevant legal obligations are set out in the Coroners Case Management Protocol.
This Coroner has set out that she expects disclosure as soon as reasonably possible after the Coroner requests disclosure and that disclosure should take no longer than six months.
The inquest is not the only mechanism for enforcing Article 2 rights. Thorough, reliable, fair and independent internal investigations by state agencies prior to Inquests commencing should leave little for a Coroner to do. From our experience supporting bereaved families through the inquest process to date, state agencies are consistently failing in their article 2 obligations to reach their legal disclosure obligations.
We call upon the Ministers’ Deputies to seek confirmation from the State Party what steps it is taking to ensure all agencies (with Article 2 responsibilities for disclosure to the Coroners Court) comply with their obligations to identify, preserve and disclose relevant material promptly.
Issue with refusal of AG to grant inquests
An important issue of concern for PFC and the families with whom we engage is the Attorney General’s continued refusal to grant inquests.
The family of Sean Dalton has been waiting for over a year for the Court of Appeal to deliver judgement in his case - which would hopefully clarify this matter. The family are challenging the AG's refusal to grant an inquest and to his reasoning.
As the PFC was hoping that all the Stormont House Legacy Mechanisms would be up and running by now, we deplore that the inquest system is one of the very few mechanisms working in an even moderately acceptable way since the Lord Chief Justice reforms came in to meet Article 2 obligations.
Although there remain our above stated key problems on how legacy inquests are progressing, we now find that families are barred from accessing the inquest process as the Attorney General is repeatedly rejecting applications for new hearings.
We are also concerned over the question of referrals from the Attorney General to the Public Prosecution Service (PPS). Previously, the PPS would, if warranted, take a view to making a S.35 referral to the Chief Constable for investigation.
Recent correspondence has illustrated this avenue is also being shut down with the PPS claiming that the cases are already with the PSNI Legacy Investigation Branch (LIB) and they should be barred from ‘skipping the queue’. In a letter to a solicitor representing the family of an 11-year-old boy killed by the British Army, the PPS confirmed that a section 35 (5) referral would not be made in this case. The family had sought a new inquest which had been refused.
The Director recognises the deep frustration and distress experienced by families who continue their long wait for an effective investigation into the circumstances of the the loss of their loved ones. Whilst he understands why families may view a section 35 (5) request as a vehicle by which their case can be expedited, for the reasons outlined above the Director considers such a request inappropriate in this case.
We are aware of similar letters being issued to other families suggesting this to be a policy decision.
The PFC also has a number of other concerns in relation to operational issues that are impeding Inquest processes. If these are not addressed, they will almost inevitably lead on to a number of legal challenges.
It has proven, for example, very difficult for the Coroner’s Office to compel witnesses to attend the Ballymurphy Inquest.
In many instances, during examination by both the Coroners’ Service Counsel and Counsel to the Next of Kin, even if soldiers did attend, they answered questions with stock answers such as "I can't remember" or "I don't remember", much to the disbelief and upset of many family members. This was also in the context of public calls, made by military sources on social media, for soldier witnesses not to co-operate; or to throw the Coroner's invitation letter to attend an inquest into the bin or "suffer from total memory loss". For families who have waited nearly 50 years to have an article 2 inquest into the death of their loved ones, this has been devastating and gratuitously insulting.
We are also concerned on how evidence is heard by video-link. There have been instances when soldiers, giving evidence, are accompanied by MoD counsel in the same room. When asked, by the Coroner, to state if there is anyone else in the room with them while giving evidence by video link, there have been instances where soldiers have denied this, quickly followed by MoD Counsels revealing themselves.
Without the Coroners’ service having a legal counterpart present also, this amounts to an obvious gap in equality of arms. A soldier can easily be prompted, with eye contact for example, or hastily written notes. The Coroner and her officers will be unaware of this.
These concerns contribute to further distrust in the process amongst both bereaved family members and the public. This matter should be addressed.
COVID19 & Resumption of Inquests
Accepting that the Covid19 suspension has inevitably caused further delays in the Coroners' Service pressing ahead with inquests, we strongly request that Inquests are resumed as soon as possible when restrictions are lifted. An alternative would be to consider how inquests might move forward using technology.
Independent Inquiry into the circumstances of the murder of Pat Finucane
The UK Supreme Court (UKSC) handed down its judgment in an application for judicial review brought by Geraldine Finucane on 27th February 2019 and declared that “there has not been an article 2 compliant inquiry into the death of Patrick Finucane.”  The Court held that it was for the state to decide, not them, how they would meet the procedural requirement of article 2, what form of investigation, if indeed any, is now feasible, is required in order to meet that requirement.
PFC welcomes the consideration of the Committee to reopen their supervision of the individual measures in respect of the Finucane case. We note that the UK government has failed to respect the request by the Committee to provide concrete information on how they intend to conduct an Article 2-compliant investigation into Mr Finucane’s death in light of the findings of the Supreme Court judgment of 27 February 2019 by 1 December 2019 and again by the 31 March 2020.
We repeat the request in our previous submission that the Committee now re-open their supervision and enforceability role in respect of this case. The Finucane family once again have had to initiate a legal challenge against the UK government for its ongoing failure to provide an Article. 2 compliant investigation into their father’s/ husband’s murder. Without the oversight and scrutiny of the Committee, there is a real danger that the family will once again face years of litigation, judgements in their favour, but no proper, effective investigation.
Undermining the Independence of the Public Prosecution Service and Judiciary - Abuse of Parliamentary Privilege
PFC is gravely concerned at repeated interventions in both British Houses of Parliament by members, including Government Ministers, who have abused parliamentary privilege to criticise the prosecutions of a small number of British Army veterans for serious offences alleged to have occurred here during the conflict.
We have raised these concerns with the Northern Ireland Office and with both the previous and the present Speaker of the House of Commons, however the interventions continue. As recently as February 26 2020 we contacted the Office of the Speaker following comments made by an MP in a question directed to Prime Minister Boris Johnson MP which criticised the prosecution of former soldier Dennis Hutchings.
In 2015 former Life Guards soldier, Dennis Hutchings, was charged with the attempted murder of John Pat Cunningham, a vulnerable adult, near Benburb in 1974. John Pat Cunningham was shot in the back and died from his injuries. Two soldiers opened fire and it was unclear which shot was fatal, therefore the attempted murder charge.
Such interventions are a violation of the Sub Judice rule of the House of Commons and are a pernicious attack on the independence of the Northern Ireland Public Prosecution Service and the judiciary.
It is difficult to imagine any other situation where parliament would allow such comments in respect of live legal proceedings and it beggars belief that government ministers would tolerate and even encourage such attacks on lawyers working with an independent mechanism of the criminal justice system - the PPS. By extension the message from senior levels of government to the judiciary is equally chilling -former soldiers should not be found guilty of offences including murder and attempted murder.
We call on the Ministers’ Deputies to raise these concerns with the State
In our previous submission we raised the issue of closed British government files with specific reference to the cases of Julie Livingstone and Paul Whitters. Julie was 14 years old when she was struck in the head and killed by a plastic baton fired by a British soldier from inside an army vehicle in Belfast, in May 1981. Paul Whitters was 15 years old when he was struck by a plastic baton fired by an RUC officer, in Derry, also in May 1981. Paul survived for ten days and then passed away. PFC became aware that there were two files in the National Archives (NAUK) concerning Paul and Julie’s deaths.
‘File CJ4/4402: Paul Whitters: killed by a plastic baton round, April 1981’ marked closed in 2018 until 1 January 2059 on ‘health and safety’ grounds, and on the grounds that it contains personal information concerning a third party. ‘File CJ4/4403: Julie Livingstone: killed by a plastic baton round, May 1981’ was marked closed until 2064 on the same grounds.
Both the Livingstone and Whitters families met with the then Secretary of State (SoS), Karen Bradley MP on 17th July 2019. They were supported by the PFC and Relatives for Justice.
At the meeting, the SoS and her officials explained the following: they were NIO files; they had been assessed and closed (by the NIO) in 2011 and 2014 respectively; no one at the meeting knew why they had been closed; no one knew what was in the files. Most importantly, the Secretary of State claimed repeatedly that she could no longer access the files because they were now closed in order to determine whether information could be shared with the families. The families were advised to make a Freedom of Information request.
The families left the meeting feeling deeply frustrated and insulted. It is unacceptable that information concerning the deaths of children at the hands of state actors can be withheld from bereaved families until a time when their next of kin would also have passed away. The families explained to the NIO, both in advance and at the meeting, that initiating an FOI request would result in a copy of whatever is released to the families (the applicants) being also released into the public domain, so it is likely that the information would be heavily redacted (if they were to receive anything at all.)
Subsequently National Archives UK confirmed to the PFC that the claim that SoSNI could not access the file was incorrect. It is concerning that a senior Government Minister would provide false information to the families of two children who were killed by those acting on behalf of the state.
In correspondence from 10 February 2020 the new SoSNI confirmed that he is
‘…able to give access at [my] discretion to otherwise closed files, subject to any constraints arising from statute or regulation by which [I] am bound.’
In response the mother of Paul Whitters wrote to SoSNI requesting that he exercise that discretion subject to any redactions of personal data in compliance with human rights and data protection legislation. This has been refused.
We call on the Ministers Deputies to raise these concerns with the State Party.
 Boris Johnson will end 'unfair' trials of Northern Ireland veterans: PM will change law to protect soldiers from prosecution over Troubleshttps://www.dailymail.co.uk/news/article-7670901/Boris-Johnson-vows-change-human-rights-law-protect-soldiers-served-Northern-Ireland.html
 Agreement signed by Irish and British governments to implement the ICIR. https://ptfs-oireachtas.s3.amazonaws.com/DriveH/AWData/Library3/FATRdoclaid210116_100026.pdf
 Statement from Tánaiste Simon Coveney to British government’s proposals. https://merrionstreet.ie/en/News-Room/News/Statement_by_Tanaiste_on_UK_Government_Legacy_Announcement.html
 Letter from OPONI to PFC Advocacy staff dated 23rd March 2020.
 Police Ombudsman Media Release 14.02.19 https://www.policeombudsman.org/Media-Releases/2019/Police-did-not-disclose-sensitive-information
 Police Ombudsman Media Release 30.10.19 https://www.policeombudsman.org/Media-Releases/2019/Police-Ombudsman-statement-on-identification-of-ad
 Report to the NI Policing Board regarding PSNI failings in legacy disclosure, 21.02.19
 Executive Summary, ibid, page 6
 Op Turnel was the name of the work undertaken within the PSNI in response to the failure to disclose the information to the OPONI.
 Submissions by the Police Service of Northern Ireland. Draft Northern Ireland (Stormont House) Bill. https://www.psni.police.uk/ news/Latest-News/04.10.18-psni-response-to-legacy-public-consultation-paper/
 In the matter of an application by Edward Barnard for Judicial Review, July 2019. https://judiciaryni.uk/sites/judiciary/files/decisions/Barnard%27s%20%28Edward%29%20Application_0.pdf
 The Glenanne Series of attacks were murders and attempted murders carried out on both sides of the Irish border by a gang comprising of loyalist paramilitaries and members of both the Ulster defence Regiment (a regiment of the British Army) and the Royal Ulster Constabulary (the local police force). There were over 120 murders in the series.
 Supra Note 1 above
 Supra Note 2 above, Section F. Disclosure Process, paras 16-34, p. 3 refer
 Ibid, para 19.
 Correspondence dated 6 February 2020 on file at PFC
In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland)  UKSC 7
 Ibid para 153
 The joint statement from PFC and RFJ on behalf of the Livingstone & Whitters families can be accessed here: https://www.patfinucanecentre.org/state-violence/families-children-kill…