Hard to argue against Bloody Sunday decision taken by Public Prosecution Service

Many in Derry yesterday were left feeling that not only was justice delayed but also it was denied.

After decades of campaigning for the truth of what happened on Bloody Sunday, January 30th, 1972, to be established and achieving same in the Saville inquiry report published on June 15th, 2010, they patiently waited another six years for the Director of Public Prosecution’s (DPP) decision on whether any of the British soldiers involved would face trials in connection with the deaths.

In November 2016, the PSNI sent a file on the matter to the DPP. This file identified the actions of 20 individuals for consideration as to whether they had committed criminal offences.

Of these, 18 individuals were former members of the British army’s Parachute Regiment, one of whom has since died. The two other people reported were allegedly then members of the Official IRA.

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In order to be presented in court, evidence has to be both still available and admissible

The findings of the Saville inquiry established that in many instances the persons involved had been responsible for “unjustified killings”. This inevitably raised expectations that there would be prosecutions.

However, having carefully reviewed each of the cases, the Public Prosecution Service for Northern Ireland (PPS) determined that only one of the soldiers – identified as Soldier F – should face trial.

Yesterday, the PPS took the unusual step of publishing a detailed written set of reasons for its decision on the cases. That document runs to 13 pages. It is complex and legal in its language at times but it sets out the basis given for the decisions in relation to the shootings which occurred at each of the relevant locations on the day.

At the outset, the document sets out the evidential test for prosecutions. In order to direct a prosecution there has to be sufficient evidence currently available to be presented in court which is sufficient to provide a reasonable prospect of a conviction and to do so on the relatively high standard in criminal trial which is beyond reasonable doubt.

In order to be presented in court, that evidence has to be both still available and admissible.

The document points out that, whereas Saville made findings of “unjustified killing”, that tribunal was not bound by the stricter rules of evidence which apply in criminal trials and the standard of proof beyond reasonable doubt.

Since Bloody Sunday, the relevant soldiers have each given their accounts to different inquiries into what occurred. In these accounts, they identified when and where they themselves had fired shots on the day.

These previous accounts included statements made to a royal military police inquiry held in the days after Bloody Sunday; statements made to the army tribunal team as part of a “cross-checking” process conducted following the announcement of the Widgery inquiry; statements to the Widgery inquiry itself; and sworn evidence to the Widgery inquiry.

The PPS document points out, however, that whereas Saville could have regard to these previous statements made by the soldiers in making his findings of fact, these statements would not and could not be admissible as evidence against the soldiers themselves in any trial they might face.

This is because the statements were made under military compulsion, without the soldiers being cautioned that anything they said in the statement could be used in evidence against them, and without being advised to get legal advice. The soldiers also made statements and gave sworn evidence to the Saville inquiry.

This evidence was provided, however, subject to an undertaking by the attorney general to all witnesses that the evidence they provided to the inquiry would not be used against them in any criminal proceedings. This, the document of reasons points out, “was intended to assist the inquiry in its search for the truth by removing the ability of any witness to rely upon the privilege not to incriminate oneself as a reason for not answering questions or providing documents to the inquiry”.

These previous statements by the soldiers clearly comprised a crucial body of evidence upon which the Bloody Sunday inquiry relied in order to make its findings.

They were “the central plank of evidence by which the inquiry identified those soldiers who had fired and were, or may have been, responsible for particular casualties. They also played an important role in terms of assessing whether shots were, or may have been, justified”.

However, as the document points out, “this highly significant body of evidence would not be available to the prosecution for the purpose of any criminal proceedings”.

In summary, that is why there will not be more prosecutions.

Commenting yesterday, the journalist and former vice-chairman of the Northern Ireland Policing Board, Denis Bradley, spoke of how “people don’t live in the word of jurisprudence, they live in the world of right and wrong”.

In terms of criminal law, the argument set out by the PPS are compelling, although that will come as little comfort to the families of those killed on Blood Sunday.