Re B: soldiers and the criminal process in Northern Ireland

16 March 2021 by

Free Derry Corner as it originally appeared © BBC 2011.

Re B’s application [2020] NIQB 76 was a challenge to a decision to prosecute a soldier for offences going back to 1972. Part of the small but politically divisive cohort of prosecutions arising out of the Troubles in Northern Ireland, Re B provides a classic example of how courts approach the issue of fairness in criminal prosecutions for historic offences.

“B” is a former soldier of the British Army who had been serving in Northern Ireland. On 31 July 1972, the Army launched “Operation Motorman” to clear so-called “no-go” areas in Belfast and Derry, which had become highly problematic and dangerous for security forces at the time.

In the early hours of 31 July 1972, B was part of a company of soldiers deployed in the Creggan Heights area of Derry. He was armed with a 7.62 x 51 mm calibre General Purpose Machine Gun. At around this time, three local people were also in the area: Thomas Hegarty, his brother Christopher Hegarty and their cousin Daniel Hegarty. At some time shortly after 4.15 am, there was a burst of machine gun fire. When it stopped, Daniel Hegarty lay dead on the street, having been shot twice in the head. He was 15 years old. Christopher Hegarty was also wounded in the shooting, but survived.

An initial inquest in 1973 returned an “open verdict“, which is used when verdicts such as a death from natural causes, an accident or suicide are unavailable. A second inquest was ordered by the Northern Ireland Attorney General in 2009, which concluded in 2011 with a unanimous jury finding that none of the Hegartys had posed any risk when they had been shot at. Soon after the second inquest, the Coroner made a statutory referral to the then Director of Public Prosecutions for Northern Ireland (DPPNI) as it appeared that one or more offences had been committed in the shooting of the Hegartys. In 2016, the DPPNI decided not to prosecute B in relation to Daniel and Christopher Hegarty. This was successfully challenged, with the decision quashed in 2018 for the DPPNI’s failure to apply the correct test for commencement of a criminal prosecution.

A fresh decision, by a new DPPNI, was made in April 2019 to prosecute B for the murder of Daniel Hegarty and the wounding with intent of Christopher Hegarty. This was then challenged by B and the challenge heard before a Divisional Court (Lord Justice Treacy, Mr Justice O’Hara and Sir John Gillen). B challenged the decision on several grounds, two of which were central. B argued that the DPPNI’s decision had breached his rights under Articles 2 (right to life) and 3 (right not to be subjected to torture or inhuman or degrading treatment or punishment) of the European Convention on Human Rights. This was because B argued that the decision (1) effectively increased the risk to his life and (2) subjected him to inhuman or degrading treatment or punishment.

The main evidential backdrop to B’s challenge was supplied in four medical reports (which had also been supplied to the previous and current DPPNI). At their height, these reports concluded that there was an increased risk of myocardial infarction and sudden death if B were prosecuted, but also conceded “No one can predict when a deterioration in heart failure will occur and/or death in [B]”.

The Court’s decision

At the outset, Treacy LJ for the unanimous Court heavily criticised the challenge as being a kind of “satellite” litigation – a case taken on an issue related to but not at the heart of the main case, before a different court to the one which would hear the main case. In the criminal justice setting, while judicial reviews taken out of the criminal courts are not unusual, they add delay and procedural complexity in an area where timely justice is a fundamental concern (see a recent post on this blog by Joanna Curtis), and are therefore discouraged for this reason. Moreover, as Treacy LJ observed, the entirety of the decision-making process in this case had already been plagued by considerable delay – the Coroner’s referral to the DPPNI had been (at the time of the judgment) made almost a decade prior. Further, the crux of B’s evidence – that of his health concerns – could be dealt with in the criminal courts as part of the criminal process itself, without commencing actions in other courts.

The challenge under Article 2 of the ECHR proceeded on two related duties: not to take life and to protect life in circumstances where a real and immediate risk to an individual’s life exists. For B, this risk was disclosed in the medical reports. This risk also formed the basis of the Article 3 challenge – that the prospect of enduring a trial given B’s health concerns gave rise to inhuman or degrading treatment. Treacy LJ ultimately dismissed both challenges by pointing to the existing safeguards built into the criminal process. The Court observed that B may make use of several applications in the criminal courts – arguing that he is unfit to stand trial, that a trial would be an abuse of process or argue for special measures to accommodate his health concerns as part of the trial process. This was particularly relevant as the increase in risk to B was unquantifiable – the four medical reports highlighted concerns, but also recognised the futility of accurately predicting or quantifying the risk to B from the trial process itself.

The Court were particularly unimpressed with the potentially sweeping nature of B’s main argument – if medical evidence pointing to increased health risks as part of any criminal trial could establish breaches of ECHR rights, then it would “confer de facto immunity on any suspect with a medical condition capable of similarly increasing risk consequential upon higher levels of stress resulting from a decision to prosecute”.

Comment

The Divisional Court’s judgment is a classic restatement of two main points with longstanding authority: the need to avoid satellite litigation and its associated delay and complexity in the criminal process, and the difference between a decision to prosecute and an actual prosecution in the context of ECHR rights. While B had argued that it is not in the public interest to prosecute someone with an increased risk of death, the Court, invoking recent Supreme Court authority, held that the public interest test for deciding whether to prosecute was not the same as the question of whether there would be an unjustifiable interference with an individual’s ECHR rights.

A final point of considerable importance is the Court’s reminder of the structural guarantees of fairness built into the criminal process. This reminder is not only important in terms of the administration of criminal justice (i.e. the importance of a fair system to protect the substantive rights of suspects and defendants) but also for the political and social backdrop from which this case arose. The prosecution of soldiers for offences relating to the Troubles is a (numerically) small but increasingly explosive cohort of judicial business. No soldier has yet been convicted in this cohort, though the litigation surrounding it has been subject to emotive, divisive and often insensitive rhetoric. A government bill has passed the House of Commons and is now in the House of Lords, which creates restrictions of time and process for bringing similar prosecutions, with a new duty on the Secretary of State to consider whether or not the UK should make a derogation under the ECHR in respect of any overseas operations which are or would be significant.

Amid this controversy, it is worth remembering that the investigative duty under Article 2 of the ECHR includes duties owed to victims’ next-of-kin (see e.g. Al-Skeini v United Kingdom (Application no. 55721/07)), with the family of Daniel and Christopher Hegarty having waited almost 40 years for the start of the process of ensuring justice.

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