Members of the security forces in Northern Ireland will be able to avail of the two-stage scheme announced by the British government yesterday to finally resolve the issue of paramilitary fugitives or "on-the-runs" (OTRs).
As expected, the long-awaited Northern Ireland (Offences) bill reflected the essential proposals foreshadowed by the April 2002 British/Irish joint declaration. An estimated 60 republican OTRs are thought likely to be immediate beneficiaries of the scheme, which will allow them to have pre-1998 offences alleged against them dealt with by a special tribunal in their absence, without their having to submit to arrest, enter a plea or serve a night in prison.
Many hundreds more, loyalists and republicans, who never left the jurisdiction, would be able to avail of similar procedures in the event of police mounting a prosecution in relation to offences committed prior to the signing of the Belfast Agreement.
However, the surprise element in the proposed legislative package was the definition in Clause 1 of the bill of the offences to be covered. For the purposes of the act, offences would cover both "escapees" and "an offence under the law of any part of the United Kingdom committed before April 10th, 1998, in connection with terrorism and the affairs of Northern Ireland (whether committed for terrorist purposes or not)."
That prompted angry protests from opposite ends of the political spectrum in Northern Ireland and London. The SDLP leader Mark Durkan told MPs at Westminster the provision meant "nobody in the police or the British army who committed murder or other crimes would ever go to prison." And he charged that this marked a new state of "collusion on the past between Sinn Féin and the British government - each helping to cover up their dirty secrets."
From the opposite perspective, the Conservatives noted that this marked a radical departure from British state policy as enunciated over the past 35 years, which had expressly rejected any suggestion of "equivalence" between members of the security forces and loyalist or republican paramilitaries. Shadow defence secretary Michael Ancram said: "Anything that suggests there is equivalence between a British soldier and a terrorist is utterly unacceptable."
His colleague, Northern Ireland spokesman David Lidington, went further, describing the proposal as "morally repugnant". British officials insisted that the bill would not prejudice the PSNI's investigation into the so-called "cold cases", involving some 2,200 unresolved murders.
However, although any person charged with an offence arising from that or any other investigation would be liable to arrest and prosecution, they would then be able to apply in the same way as OTRs to have their case dealt with by the special tribunal and expect to qualify for automatic release under the prisoner release scheme.
The new bill provides for amendment of the original Northern Ireland (Sentences) Act 1998, under which qualifying prisoners from paramilitary organisations deemed signed up to the Belfast Agreement had to serve two years of their sentence.
Under the new scheme it is for individuals who may have been wanted by police as at November 1st, 2005, to apply to a certification officer.
Eligibility will be determined by the following criteria: the person does not support a "specified" organisation; the person is not concerned or likely to be concerned in the commission, preparation or instigation of acts of terrorism; the person has not been convicted of a terrorist-related offence committed on or after April 10th, 1998; that no sentence of imprisonment for a term of five years or more has been imposed on the person on conviction of an offence committed on or after April 10th, 1998.
The certificate issued will identify the offences to which it relates and will apply only to those alleged offences. It will grant the person exemption from specific police powers, including arrest, questioning and remand, in relation to the offences listed. Any prosecution for a listed offence will take place in a special tribunal, presided over by a retired judge, exercising the powers and procedures of the crown court sitting without a jury. The defendant will not have to attend the trial.
The bill is not expected to complete its parliamentary stages and be operational before the spring or early summer of 2007.