ANALYSIS:Whatever about murder, military acts of perjury should be pursued in courts of criminal law
IN THE wake of Saville’s resounding vindication of the innocence of the victims on Bloody Sunday, the question arises as to whether the soldiers should face prosecution. Despite the clarity of the tribunal’s findings, there are significant obstacles to be overcome.
The most applicable charges are murder or attempted murder. However, successful prosecutions of members of the security forces for the fatal shootings of unarmed civilians in Northern Ireland are rare. Of more than 100 such shootings over a 30-year period, there were two murder convictions. The soldiers served four and six years of life terms before rejoining their regiments.
To succeed in any case, the prosecution will have to prove the individual soldier fired unlawfully and with intent to kill or cause serious injury. A superficial reading of Saville’s findings might suggest this should not be problematic. Almost without exception, the soldiers fired without justification. That, however, will not always be sufficient in itself.
If a soldier fired in the belief his target was about to discharge a weapon or throw a bomb, the prosecution may still fail even if that belief was mistaken and would not have been shared by others. Under UK law, mistaken belief is a defence as long as it was held honestly and the action taken was proportionate to the nature of the mistaken threat.
A close reading of the Saville report suggests this cannot be ruled out for some soldiers. Each case will have to be examined on its own merits, and convictions are not inevitable in respect of all of the soldiers who fired shots.
Delay and prejudicial publicity will also feature as arguments against prosecution. Although there is no time limit on murder, the soldiers will argue the delay of almost 40 years is inexcusable; that it would undermine their right to a fair trial; and that it would be oppressive to proceed after such a period. There is substance to this argument, given that it was the state, principally in the form of the Widgery tribunal, that gave the soldiers the all-clear in 1972 and then refused to revisit the matter for a full 26 years.
The prejudicial publicity argument is less persuasive. A trial judge would give the jury very strict instructions on the importance of addressing themselves only to the evidence before them. This, together with the passage of time and the usual checks and balances in the empanelling of a jury, should guard against the risk of residual prejudice from the Saville report.
The decision on whether to prosecute will be taken by the DPP for Northern Ireland based not just on the sufficiency of the evidence, but also on whether it is in the public interest.
There is a controversial precedent in Northern Ireland of prosecutions against members of the security forces blocked on public interest grounds. In the wake of the Stalker/Sampson report on the alleged shoot-to-kill policy being pursued by the RUC in the 1980s, the British attorney general announced that despite evidence of serious offences, the DPP had decided against prosecuting the officers in question.
Given the virtually unique combination of factors surrounding the Bloody Sunday shootings, it cannot be discounted the DPP might take a similar course even though the evidence clearly warrants prosecution of at least some soldiers.
But the obstacles facing prosecutions for murder should not extend to prosecutions for perjury, given several soldiers lied to Saville. Their actions were inexcusable and should not pass without censure and punishment.
The overriding public interest in the Saville exercise was in establishing the truth. For that purpose, the soldiers were protected against the risk of their evidence being used against them in prosecutions. By lying, some tried to ensure the truth would remain hidden and the tribunal’s vital public interest would be defeated. They must account now for that in a criminal court.
Dermot Walsh is professor of law at the University of Limerick. His 1997 analysis of the Widgery tribunal formed the basis for the Government’s 1998 submission to the British government which, in turn, led to the establishment of the Saville tribunal