The Troubles legal cases. After yesterday’s outcome, could the Government return to Lord Caine’s proposal?

5 May

Yesterday the case against two former paratroopers over the killing of John McCann, an Official IRA commander, in 1972 collapsed due to a lack of fresh evidence.

At Langanside Courts in Belfast, Mr Justice O’Hara ruled the evidence “inadmissible” almost 50 years after Soldier A and Soldier C first gave statements, and said material from 1972 had been put before the court “dressed up and freshened up“.

The case has inevitably been incredibly divisive. McCann’s family have accused the state of “failure” at “all levels” over the lack of prosecution.

In the meantime, there’s growing anger in Westminster about veterans being taken to court. Johnny Mercer, the former veterans minister who recently resigned over the Government’s handling of the investigations into the Troubles, called the trial “farcical”.

Soldier A and C’s was the first prosecution around the Troubles shooting since the Good Friday agreement of 1998, but currently over 200 veterans, many of whom are in their seventies and eighties, are at risk of criminal investigations too. Soldier A and C’s legal team had warned in 2016 that earlier evidence from their clients would not be admissible (the soldiers gave statements in 1972 and subsequent ones in 2010), so it raises the question of how the case reached the court – and what else could follow.

Barra McGrory, formerly the Northern Ireland director of public prosecutions, was behind the decision to press ahead with the prosecution, who it’s been pointed out represented Gerry Adams and Martin McGuinness while in private practice. Mercer has been critical of the PPS, and asked for “an urgent independent inquiry to establish whether [its] decision was made ‘properly and correctly’.”

Clearly the Government needs to take decisive action, with legislation expected in next week’s Queen’s speech. But it must strike a careful balance, which respects Northern Ireland’s judicial structure (such as having its own Attorney General) relating to its delicate political settlement, while stopping veterans’ cases dragging out for years.

One solution that could create much-needed balance was proposed in 2019 by Lord Caine, formerly an adviser to six secretaries of state for Northern Ireland. His idea was to apply a modified version of Section 3 of the Criminal Law Act (Northern Ireland) 1967 and the common law on self-defence, an idea which John Larkin, Northern Ireland’s Attorney General, raised that year in a lecture.

The modification would help legal authorities distinguish between “a split second error of law on the one hand, and the execution of an act of studied illegality on the other.”

Caine proposed that once a legal authority could make distinctions on these complex cases, this could in turn be used for a certificate system. He wrote: “A certificate could only be issued if that legal figure were to conclude that a person potentially under investigation or facing trial had not honestly believed that the action he or she took with lethal or injurious effect was reasonable in the circumstances. If no certificate were to be issued, the investigation or proceedings would cease. Should a certificate be issued, the investigation or proceedings continue in the normal way.”

Elsewhere, there have been proposals for the Government to create a new investigative body to look through the files of 3,600 Troubles deaths and remove cases where there is no compelling evidence. But it could take a long time – during which veterans’ desperately need an end to the ongoing situation.

While reportedly some ministers think the Caine certificate system goes too far, Downing Street seems to be struggling around any proposal at all. Yet its paralysis could prove as politically risky as trying to override the judicial processes that brought Soldier A and C to court.

Austen Morgan: As Gerry Adams awaits compensation for his unlawful detention, a legal conundrum could get in the way

21 Apr

Dr Austen Morgan is a barrister at 33 Bedford Row chambers and was one of the UUP’s lead negotiators for the Belfast Agreement.

Gerry Adams – he of “I was not a member of the IRA” – has done well out of being a terrorist suspect. However, he, and those seeking to augment their IRA pensions, might be stopped in their tracks, if something said recently by Lord Reed of Allermuir, the President of the Supreme Court, leads to an error of law being corrected.

More of that in a moment – but our story begins a long time ago, when Parliament enacted the Detention of Terrorists (Northern Ireland) Order 1972 after direct rule.

Article Four of the Order provided that: “(1) Where it appears to the Secretary of State that a person is suspect of having been concerned in the commission or attempted commission of any act of terrorism…the Secretary of State may make an order…for the temporary detention of that person. (2) An interim custody order of the Secretary of State shall be signed by a Secretary of State, Minister of State or Under Secretary of State.”

Back in 1972, the case of Carltona v Commissioner of Works [1943] 2 All ER 560 was well established. The Carltona principle was that a secretary of state, entrusted with powers, could delegate these to a junior minister or even an official.

In 1973, an interim custody order was made in respect of Adams. It was made by a junior minister in the Northern Ireland Office, acting on the advice of officials. Adams attempted to escape from the Maze prison later that year, and again in 1974. Charged with these criminal offences, he was sentenced eventually to 4.5 years’ imprisonment.

Everyone in the Northern Ireland Office knew who Adams was: William Whitelaw, the Secretary of State, had secretly met a six-strong IRA delegation in 1972 – including one Gerry Adams – in Cheyne Walk in Chelsea for abortive talks.

During the prosecution of Adams, Brian Hutton QC – later a law lord in the time of Tony Blair – advised the (English) attorney general that a court might take the view that the Secretary of State had to personally consider whether to detain a suspect or not. His equivocal legal opinion of 1974 remained private. Adams did not appeal his convictions in 1975 for attempted escape. Then, in 2005, the Hutton opinion and other documents were released under the 30-year-rule by the national archives in Kew.

Adams duly appealed the 1975 convictions, though he took his time in doing so. He lost in the Northern Ireland court of appeal, in February 2018. But – to considerable surprise – he succeeded in the Supreme Court, in May 2020.

The judgment was given by Lord Kerr, a former lord chief justice of Northern Ireland, who had become a law lord in 2009, and retired early from the Supreme Court in October 2020 (dying in December).

Kerr came to judge controversial Northern Ireland cases (see Finucane in February 2019), with the other justices tending to go along with him. His argument in relation to Adams’ appeal was: the Secretary of State had to make the decision personally, but a junior minister could sign the interim custody order without bothering to read it or related papers!

In March this year, Reed, and the Deputy President of the Supreme Court, Lord Hodge (also a Scot), had their annual evidence session remotely with the constitution committee of the House of Lords, chaired by Baroness Taylor of Bolton. No one remarked that it was St. Patrick’s day.

Reed – probably thinking of Baroness Hale in 2019 in Miller Two – had prepared a reform to announce to the committee: “A third step has been to encourage our justices, when writing judgments, to engage fully with what was decided by the courts below and to acknowledge the contribution that the judges made, because previously there had been a tendency on the part of some justices to write as if they were dealing with a blank sheet of paper, ignoring what had been said by the courts below. That had not been a very well-received practice.”

Lord Howell of Guildford, aged 85 years, was one of the twelve members of the committee. Back in 1972, he was a junior minister in the Northern Ireland Office. He (it is not clear) may have signed Adams’ interim custody order.

Having written on the Adams’ case after the judgment, he chose to pursue the matter with Reed. The latter had not been involved, but he volunteered that Kerr wrote the judgment: “From what you say, it sounds like a wayward judgment, in which case it will be put right in another case.”

Adams is due compensation for his unlawful detention, wrongful convictions and false imprisonment. Other IRA members (including one who helped Adams escape), equally aggrieved that the Secretary of State did not personally detain them, will be crawling through the lawfare tunnels on their next operation.

Reed spoke extra-judicially on March 17 2021, but surely even the Northern Ireland Office will get the message. Will government lawyers now set out to deny Adams a penny?

Will they fight any following cases all the way to the Supreme Court, and ask it to overturn Kerr’s decision?

Last word: Lady Black, Lord Lloyd-Jones, Lord Kitchin and Lord Burnett (the Lord Chief Justice) all agreed with Kerr in 2020. Lady Black retired recently. The other three remain in post. Clearly, cleaning up this judicial mess will not be easy.

Reed could have suggested the following reform to the constitution committee: back in the 1960s and 1970s, the senior law lord (Lord Reid, different spelling but another Scot) required each judge to produce his (in those days) own judgment. Perhaps such a practice, burdensome though it would be, would prevent four justices silently giving one of their colleagues a clear run on his/her special interest.