Was the decision to avoid prosecution of soldiers prompted by the killing of Billy McGreanery and others?

Declassified British papers reveal talks between Attorney-General and head of British Army

Was the decision to avoid prosecution of soldiers prompted by the killing of Billy McGreanery and others?

General Sir Frank King sought assurances over the prosecutions of British soldiers from NI Attorney-General Sir Basil Kelly.

Declassified documents unearthed by the Pat Finuncane Centre in Derry in 2013 revealed that as far back as 1971, and just weeks after the killing of Billy McGreanery, there were dedicated attempts being made by the British state to ensure that soldiers were not prosecuted.

Meetings between Sir Basil Kelly, the Attorney General for Northern Ireland and General Sir Frank King, the General Officer Commanding in Northern Ireland saw a range of assurances given about the non prosecution of security forces personnel.

In 1971, the classified material reveals that the Northern Ireland Government was asked to consider the introduction of a two clause bill that would take the potential prosecutions of soldiers out of the hands of the courts here and into a tribunal system.

“Such a tribunal,” the documents state, “would enable the cases to be heard quickly and informally. The members of the tribunal would be permitted to to take evidence in camera and the two parties would not be allowed to cross-examine each other's witnesses.”

The documents from December 1971, also contended that the establishment of a tribunal system would “also forbid private prosecutions of soldiers on criminal charges without the consent of Attorney-General.”

In the wider overall political situation, the meetings between the Attorney General and senior members of the security forces, took place after the introduction of internment in August 1971, after the Ballymurphy massacre of the same week and around two months before Bloody Sunday in January 1972.

On Wednesday, December 1, 1971 representatives of the Ministry of Defence (MoD) met with Sir Basil Kelly.

The legal position of soldiers was discussed and the MoD “explained why it was important that Ministers should be given as much advance warning as possible of any prosecution of a member of the Armed Forces.”

The MoD said that “morale was delicate in Northern Ireland and would be seriously damaged if soldiers were prosecuted for actions committed on duty in good faith.”

According to the dicuments, Sir Basil Kelly responded by saying “that he was aware of these considerations and that he took particular care when deciding whether to prosecute a soldier or policeman.

“He would always inform HQNI before he placed the soldier on a criminal charge. He added that he too was in a delicate position and that he must come to an impartial decision when considering whether or not to take proceedings against a member of the security forces.”

Three weeks after this meeting on December 23, 1971, Sir Basil Kelly wrote a letter stating that Soldier A would not be charged for either the murder or manslaughter of Billy McGreanery. This was despite the fact that Derry's most senior RUC man, Frank Lagan and another high-ranking policeman had recommended that the Grenadier Guard face murder charges.

The document goes onto directly refer to Mr McGreanery's death. It stated: “The Attorney-General said that the RUC had recently recommended that he should charge one soldier with manslaughter and another with murder for offences committed on duty. The proposed murder charges would be in respect of the death of William Francis McGreanery who was shot by a soldier in Blighs Lane, Londonderry, on 15 September 1971. The proposed manslaughter charge would be in respect of Mrs Sarah Worthington in the Ardoyne on 9 August 1971. The soldier in question saw a person moving in the back room of a house which he was searching and opened fire killing Mrs Worthington when she refused to come out.

“The Attorney-General said that his hunior had advised that no charge should be preferred in the Worthington case and that a charge of manslaughter at most should be preferred against the soldier in the Blighs Lane incident. The Attorney-General promised to tell HQNI if he decided upon reflection if he decided to institute proceedings in either case.”

The discussions between Sir Basil Kelly and the MoD even discussed the likelihood of soldiers being prosecuted for driving offences.

“The Attorney-General mentioned the soldiers who were being prosecuted for traffic offences, and assured Mr Parkin that those charged with dangerous driving were unlikely to receive more than a fine if found guilty. He was certain that the fact that the defendants had been under operational constraints at the time of the alleged offences would be taken into account.”

A conversation also took place between the MoD and the Chief Crown Solicitor for Northern Ireland, a Mr Goligher. The leading legal figure also assured the MoD that he would inform Army headquarters of any police recommendations that soldiers should be prosecuted before the papers reached Sir Basil Kelly's desk.

The document continued: “This would enable the Army to contribute any military information that might have a bearing on the case, and would also enable Headquarters to give advance warning to the MoD.”

Mr Goligher, according to the account, also backed the idea of the establishment of a “joint cell” inside his office to discuss potential prosecutions and the idea of setting up a tribunal system outside the judicial process was also talked about with him.

The upshot of other portions of the documents was that the Attorney-General was “always ready to receive representations” from Army officers to prevent soldiers being charged with crimes.

When Stormont was prorogued in 1972, Sir Peter Rawlinson, Attorney-General for England and Wales also assumed the office in Northern Ireland and it appears that he too was willing to assure the military hierarchy that soldiers would not be subjected to the rigor of the law.

For example he gave assurances that his officials were not “unsympathetic” to the position of soldiers on tour here and would do all they could to avoid prosecutions. In January 1974, General Sir Frank King, the General Officer Commanding in Northern Ireland told his Adjutant General Cecil Black: “He (Sir Peter) assured me in the plainest terms that not only he himself but also the DPP (Director of Public Prosecutions) and senior members of his staff, having been army officers themselves, having seen active service and knowing at firsthand about the difficulties and dangers facing soldiers, were by mo means unsympathetic or lacking in understanding in their approach to soldier prosecutions in Northern Ireland.”

The previously confidential papers also reveal that the Attorney General also assured the leading Army officer that less than ten per cent of all cases submitted to the DPP in cases of shootings or assaults carried out by soldiers resulted in prosecutions.

General King said he was also satisfied by Sir Peter Rawlinson that no soldier would ever prosecuted unless there was evidence that they had “substantially” overstepped the mark.

“I am bound to say that my worst fears have been allayed, at any rate for the time being, by the Attorney-General's assurances and I feel I am in a position to reassure all soldiers in Northern Ireland on this question.”

However, by April 1974, it appeared that General King was again unsatisfied about the future 'interference' of the judiciary in military prosecution cases. By this stage, Samuel Silkin QC had replaced Sir Peter Rawlinson as Attorney-General.

General King said he wanted some 20 cases of allegations of serious crimes committed by soldiers in Northern Ireland tried by court martial as opposed to in the civil courts.

“My request is that all these cases be examined or re-examined in the light of our discussions; the basis of examination or re-examination being whether the public interest really requires a trial or not, or, if it does, whether or not it could be served equally appropriately by the exercise of military jurisdiction.

In a letter to Samuel Silkin, General King wrote: “My apprehension is that if a series of prosecutions of soldiers in the civil courts, arising out of operational incidents, were to result in several soldiers being convicted and sent to prison, the effect on the operational efficiency and morale of the army in Northern Ireland would be extremely serious.

“It would not be overstating the position to say that the whole method of the army in the province would need careful reappraisal. The public interest considerations in such event are clear.”

However, the appropriateness of senior British Army figures being allowed to lobby the judiciary to an extent where it became a matter of seriously jeopardising its impartiality has always been highly questionable.

However, the secret papers also revealed that there was a clandestine arrangement that allowed the process to take place and General Frank King wrote of it in 1974.

“I believe that the presentation of our worries to the Attorney-General was an extremely valuable exercise. He was left in no doubt about the nature and extent of our anxieties; and the assurances which he gave me in return are as specific as they are strong.

“Furthermore, he made it clear that he is always ready to receive representations from me about any particular case and he undertook to give any such representations the most careful consideration,” he stated.

Later in the same letter, General King added: “Attorney General has now undertaken to invite my views on the public interest in aspects of the prosecution of a soldier arising out of an operational shooting incident before any decision is reached.”

In examining the role of the Attorney-General, a paper prepared by the Pat Finucane Centre (PFC) shows that the definition of the post means that its holding is in effect “the guardian of the rule of law.”

The Attorney-General (AG) is entitled to consult government ministers before making prosecution decisions. But, General Sir Frank King was not a government minister and so, the PFC contended: “The King correspondence refers to an “understanding” by the AG and DPP senior members of his staff of the “difficulties and dangers” faced by soldiers, having “been army officers themselves. How is this independent? It clearly points to a bias on the part of the AG and DPP when considering whether or not to prosecute soldiers.

“Kings correspondence further states that decisions not to prosecute had been issued “in nore than a few cases where the evidence, to say the least, had been borderline.” The military past of senior decision makers within the DPP and the AG himself who is “Guardian of the Rule of Law” and “Guardian of Public Interest” influenced prosecutorial decisions, and is to say the least, questionable, if not unlawful.”

In a House of Commons debate on state killings during the Troubles in December 2010, the former MP for Foyle Mark Durkan said: “We now know, because of investigations by the Historical Enquiries Team and work done by the Pat Finucane Centre, that in the autumn of 1971 there were liaison meetings between a representative of the military and the then Attorney-General for Northern Ireland, Sir Basil Kelly, to look at the possible risk of prosecution of soldiers for their conduct.

“The Attorney-General appears to have suggested that prosecutions might have to take place on some matters, such as traffic offences, but he was seized of the need to avoid prosecutions for more serious or controversial offences.

“In December 1971 he decided on the basis of the shooting of Billy McGreanery that September, that no soldier should be prosecuted for anything they did in the line of duty. As I said, that decision was made in December 1971, and it is hard for those of us who know about that not to believe that in the minds of the Army, that became the going rate, as regards what the yellow card did or did not mean. It meant that they could behave with impunity.”

In a reference to Bloody Sunday which followed after Billy McGreanery's death, Mr Durkan added: “It is hard to believe that the Army, and certainly the Parachute Regiment, were unaware of the Attorney General's decision.

“When the Attorney-General made his judgment following the killing of Billy McGreanery, the RUC commander in Derry at the time, having read what the military police said in relation to the shooting and the statement of the soldier concerned, recommended that the soldier be prosecuted for murder. That recommendation was endorsed at RUC headquarters, and it was the Attorney-General who subsequently created the new rule about prosecutions. That is why I think all those events raise wider issues that need to be pursued.”

Sara Duddy from the Pat Finucane Centre told the Derry News: “These declassified British documents show that as early as 1971 there were active, successful attempts to influence the legal process to protect soldiers from prosecution.

“It comes as no surprise that a de facto amnesty was operational throughout the conflict. Soldiers were immune from prosecution for murder and other offences simply because they were wearing a British Army uniform.

“Billy's family have campaigned for justice for their uncle for almost 50 years. They have have proven his innocence by challenging the false narrative that he was a gunman, a lie perpetuated by the Ministry of Defence to justify the shooting of an innocent man in the complete absence of evidence. And, other families bereaved through state violence take inspiration from Billy's family's endurance and resilience.”

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