Christy Walsh looks at the British Amnesty controversy.

Rex non potest dare gratiam cum injurid et damno aliorum

The King cannot confer a favour on one subject which occasions injury and loss to others.


Introduction

This article makes no judgment on whether, or not, any former combatants warrant prosecution for unlawful killing’s that they may have committed during the Conflict.  

It is, however, intended to provide more information than is commonly available to remove the current confusion and misconceptions over the function and remit of an amnesty.

Pardons, clemency and amnesties mean the same thing; where the latter is the collective or composite term used when applied to a large class of people such as insurgents or political agitators[1]. Pardons can be implemented in various individual arrangements, such as conditional, free, full, posthumous or pre-charge pardons and they can all be applied collectively as an amnesty.

Amnesty: A sovereign act of pardon and oblivion for past acts, granted by a government to all persons (or to certain persons) who have been guilty of crime or delict, generally political offenses,—treason, sedition, rebellion,—and often conditioned upon their return to obedience and duty within a prescribed time.[2]

Full pardons bring an end to a criminal penalty or void any sentence passed at the end of a trial; also, the pardoned person might even be compensated for any time spent in jail: “however, [it] does not erase the conviction nor imply innocence.” [3] In other words, pardons only negate the penalty but not the actual validity of the conviction. On that basis, there is no precedent of a pardon being granted to prevent investigations or judicial process where prima facie evidence of guilt exists. Whereas, conditional pardons involve an alteration of the original sentence. The terms ‘commutation’ and ‘remission’ are forms of conditional pardons where their objective is to remit, reprieve or otherwise reduce the severity of a sentence. For example, on 27th April 1948, the Lord Chancellor announced that “prisoners who are serving sentences of penal servitude for the part they took in the I.R.A. outrages in 1939 and 1940” were to be released “earlier than in the ordinary course”. [4] The early release scheme under the Good Friday Agreement and the Northern Ireland (Sentences) Act 1998 are a good example of a statutory amnesty for the early release of paramilitary prisoners.[5]

Leslie Sebba, at the Institute of Criminology, Hebrew University of Jerusalem asserts that an:

amnesty was an event of considerable social impact. Moreover, the elation generated among the offending population companied by a concomitant degree of concern on the part of the public in general and the police in particular.[6] 

It was for these reasons that the UK Government was extremely uncomfortable during the Northern Ireland peace talks in the 1990s when it came to prisoner releases. The use of the word amnesty was, for many, a trigger word particularly among those who had been victims of non-state actors to the conflict;as is now evident among the families of those murdered by state actors.

Pardons or amnesties are intended to relieve offenders from a criminal penalty where their otherwise unlawful conduct attracted the penalty or is likely to do so. The Queen’s Pardon is said to forgive and forget an offence committed against the Crown on the undertaking that it will not be repeated. The current proposed statutory amnesty is intended to relieve former British Soldiers from criminal punishments for any murders they may have committed during the conflict. 

However, the amnesty presently being considered is being viewed as a means of preventing any further prosecutions against former British Soldiers from commencing in the first place. A pre-trial pardon or amnesty cannot, in itself, prevent prosecutions where the test for prosecution has been met. While Parliament has the power to enact statutory amnesties, such acts must be compatible with international human rights law and any other relevant international agreements and treaties.

Pre-Charge and Pre-Conviction Pardons

A pardon may be granted any time after the commission of an offence and before judicial proceedings have been undertaken or during their pendency.[7] “A pardon is valid even if the one pardoned has not been indicted or convicted.”[8] However, the grant of a pre-conviction pardon does not have the authority to upset or prevent ongoing legal proceedings because of "the constitutional doctrine that the sovereign cannot exercise judicial power except through her courts.”[9] In other words, a pardon can be granted as a surety against any resulting penalty but cannot prevent the actual trial from proceeding to the normal conviction and sentencing stages: “If granted before conviction, it prevents any of the penalties and disabilities consequent from conviction from attaching.”[10] A pre-conviction pardon cannot prevent the Court from performing its function, but any subsequent conviction would be in name only, because the pardon: "operates as an extinguishment of the penalty inflicted by the judgment of conviction, and all its attending circumstances.”[11] The Court would have to consider if continuing with a prosecution and trial without punishment served the public interest. Unfortunately, because the purpose of the amnesty is in the best interests of former state-actors, the Courts would have to take into consideration Government policy intention to ride roughshod over individual victims’ rights. However, the Court would have to take into account how compelling the evidence against the accused was and if it was against the interests of the public to discontinue legal proceedings.

It is worth comparing the South African model for amnesty and truth recovery. Boris Johnson’s suggested amnesty is primarily focused upon ending all prosecutions of former British Soldiers who may have committed murder and war crimes during the Conflict. In South Africa, a combatant could obtain immunity from prosecution if they revealed and discussed their unlawful acts as part of the healing and truth recovery process. Whereas, Johnson’s model potentially shuts down any further truth recovery in disregard of the interests of victims rights.

Note: Amnesty and immunity can be mistakenly interpreted as meaning the same thing; In the context of this article it is to be understood that pardons relieve a person from a penalty post-conviction and not from being prosecuted per say, whereas, immunity from prosecution allows a person to impart their role in an unlawful killing without fear of being prosecuted.

Beneficiaries of the Proposed Amnesty

Those to whom the proposed amnesty is intended would have to identify themselves to avail of the amnesty. For example, after the Rebellion of the United Irishmen in 1798, the Lord Lieutenant of Ireland, Lord Cornwallis, issued a proclamation on 22nd September 1799 “requiring every person in County Galway who had been engaged in the late rebellion to apply for pardon under the Act of Amnesty.” [12] Whereas, any new amnesty introduced today would lay in abeyance until someone indicated that they wished to avail of it; “Like any other deed, a pardon must be brought judicially before the court by plea, motion or otherwise.”[13] This might only occur once a prosecution has been initiated against someone or they are aware that one is imminent. To comply with modern equality laws, the amnesty would have to include former Loyalists and Republican paramilitaries and not just the intended target of former members of the British Army suspected of committing murder or war crimes.

It would be a matter for the prosecution service or the Court to decide if continuing with a prosecution would be in the public interest. The amnesty itself is unlikely to have the legal or constitutional power to enforce the discontinuance of investigations or prosecutions; though the fact that, ultimately, no penalty can be enforced might itself be persuasive enough for discontinuation of all legacy related prosecutions on the grounds of costs and in the public interest. A prosecution is not evidence of guilt so an innocent British Soldier could potentially seek to rely upon the availability of the amnesty simply to avoid the understandable distress of being prosecuted in error.

However, if the prosecution were to continue in the public interest a successful conviction might be seen as just satisfaction enough. Although the convicted person might not spend a day in jail they would forever stand convicted of murder and must disclose that fact when officially obliged to do so. A pardon "does not obliterate the fact of the commission of the crime [and] it does not wash out the moral stain;” rather, it involves a desire for “forgiveness and not forgetfulness".[14]

In light of the proposed amnesty, both the Court and Prosecution would have to consider, in advance, if it is in the public interest to proceed to trial in such cases. It would be for that technical reason why prosecutions might not be pursued and not because an amnesty has any legal or constitutional authority to stop prosecutions or investigations; “A pardon, while it absolves the offender, does not touch the rights of others.”[15] In addition, any proposed amnesty cannot, in any way, limit or prevent, citizens from pursuing civil actions.
 
30th March 1972 Statutory Amnesty

The first codification of pardons was introduced by King Charles II through the enactment of An Act of Free and General Pardon Indemnity and Oblivion [1660]. The Act was to bring to an end the English Civil War and as a commitment from the King that he would not seek revenge against the Rebels. In return, the Rebels would recognise Charles II as the lawful king and all standing armies would be re-commissioned into service under the crown. The pardons were intended to be complete, in that all offences and punishments were null and void, including the Rebels involved in beheading his father King Charles I. Lands and other property were to be returned.[16]

British troops arrived in Northern Ireland on 14 August 1969, at the request of the then Prime Minister, James Chichester-Clark, while the Battle of the Bogside was raging in Derry. Internment was then introduced on 9th August 1971 by a new Prime Minister, Brian Faulkner. Countless Internees suffered serious physical injuries during their arrests[17] that eventually lead to the Irish Government taking the UK to the European Court of Human Rights for torture and other physical abuses.[18] Regarding the brutality meted out during interrogations, in his Report, Lord Parker concluded as follows:

The blame for this sorry story, if blame there be, must lie with those who, many years ago, decided that in emergency conditions in Colonial-type situations we should abandon our legal, well-tried and highly successful wartime interrogation methods and replace them by procedures which were secret, illegal, not morally justifiable and alien to the traditions of what I believe still to be the greatest democracy in the world.[19]

John Hume and others challenged Brian Faulkner’s authority to introduce Internment and order the British Army to carry his orders out. On 29th March 1972, the Court concluded that section 4(1) of the Government of Ireland Act 1920 limited the Northern Ireland Stormont Government’s powers to introduce new laws or regulations “under the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 which purported to confer powers on officers and members of Her Majesty's forces on duty.”[20] In other words, Mr Faulkner had no authority to give commands to members of Her Majesty's forces in the “navy, the army, the air force, the territorial army, or any other naval, military, or air force”[21]. In other words, he treated the British Army as Stormont's standing army and the Army took orders from him as if they served Stormont and not the Crown.

The Court concluded that all orders and commands given to Her Majesty’s forces by Faulkner “relating to military matters which had been created by legislation by or under the Parliament of Northern Ireland was void and of no effect.” This effectively derives from the 1660 Act of Oblivion that there should be no standing armies other than those under the command and service of the sovereign. Sir William Searle Holdsworth observes that Parliament has never consented to the raising, or keeping, of a standing army since 1660 and the introduction of the Bill of Rights and the Act of Settlement.[22] This means that, while acting under authority of Faulkner, every interaction between the Army and civilian population, if even a 5minute stop at the side of the road, was unlawful.

Within 24 hours, on 30th March 1972, in response to the Court’s judgment in Hume and Others, Parliament introduced a statutory amnesty under the Northern Ireland (Temporary Provisions) Act 1972, wherein, no British soldier would stand trial for any unlawful act committed under the direction of Stormont and the NI Prime Minister. Section 6(1)(b)[23] asserted that all unlawful laws, regulations or orders issued by the NI Government or its Minister are to, retrospectively, be treated as “references to the Secretary of State or any person appointed by him to discharge the relevant functions.” The legislation created a new Northern Ireland Office (NIO), supervised by a new Secretary of State, Mr William Whitelaw.[24] Section 6(2) of the Act retrospectively legalised all unlawful acts committed by the Army: “This Act shall not invalidate anything done before it comes into force."

In effect The Temporary Provisions Act served as a statutory amnesty to all members of the British Army for their part in the widespread unlawful detentions, arrests, house searches, imprisonments, beatings and/or shootings that they had carried out in pursuance of Stormont's orders. Hence, any British soldier who might have ordinarily been prosecuted for his crimes had, within 24 hours, been speedily pardoned in advance of any charges. Under both common law and Article 7 of the European Convention on Human Rights, the law can not make unlawful arrests and imprisonments without trial, retrospectively lawful.

Although members of the British Army had been granted immunity from their criminal liability, no remedy was provided for those unlawfully detained, mistreated, imprisoned and even murdered by the British Army between 9th August 1971 and 29th March 1972.

Conclusion

The proposed introduction of another statutory amnesty to shield former members of the security forces from accountability for crimes committed during the course of the NI Conflict ought not to escape the scrutiny that the 30th March 1972 statutory amnesty did. The 1972 statutory amnesty was introduced at a time when lawyers and the public were not as aware of human and civil rights as they are today.

There is no precedent in UK law where a pardon relieved a suspect from scrutiny; pardons only relieve the guilty from any subsequent penalty for their criminal conduct and not an investigation. If prosecutions are not pursued where there is prima facie evidence of guilt, it would be because it was considered contrary to the public interest in cases where a penalty cannot be implemented or enforced on account of the proposed pardons. Taking a lesson from South Africa, immunity from prosecution was available where Combatant’s were prepared to give a full and open account of any unlawful killings they may have been involved in.

Finally, any valid grounds for civil action against British Soldiers would remain unscathed by any amnesty because citizens’ rights cannot be forfeited or negated on foot of any pardon or amnesty.

(1) In 1848 the UK Parliament debated extending pardons to include 3 Canadian political agitators who had been not been pardoned along with others, see Pardon of Political Offenders, HC Deb 06 April 1848 vol 97 cc1369-90

(2) Black's Law Dictionary Containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 2nd Edition, West Publishing Co., St. Paul, Minnesota, 1910, at page 66:

(3) The Queens Pardon, C.H. Rolph, Cassell and Collier Ltd, 1978, pp.35-36

(4) Written Answers, 27th April 1948, Volume 155. 

[5] Daniel F. Mulvihill, "The Legality of the Pardoning of Paramilitaries under the Early Release Provisions of Northern Ireland’s Good Friday Agreement," Cornell International Law Journal, Volume 34, Issue 1 2001, Article 6, at page 241.

[6] Leslie Sebba, "Amnesty—A Quasi-Experiment", The British Journal of Criminology, Vol. 19, No. 1 (January 1979), pp. 5-30, at p.6.

[7] W W Thornton, 'Pardon and Amnesty' (1885) 6 The Criminal Law Magazine 457, at 471

[8] Pardon and Amnesty, The Criminal Law Magazine, Vol. VI. July 1885. No. 4. pp.457-500, p.485

See also, Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867), p.380. And, n50,p.3.

[9] R (On the Application of Michael Shields) v Secretary of State for Justice [2008] EWHC 3102 (Admin), para.22.

[10] ibid, p.2.

[11] W W Thornton, 'Pardon and Amnesty' (1885) 6 The Criminal Law Magazine 457, at 486.

[12] James G. Patterson, "Republicanism, Agrarianism and Banditry in the West of Ireland, 1798-1803", Irish Historical Studies, Vol. 35, No. 137 (May 2006), pp. 17-39, at page 33.

[13] W W Thornton, 'Pardon and Amnesty' (1885) 6 The Criminal Law Magazine 457, at 493.

[14] F. Gregory Murphy v. Gerald R. Ford, as President of the United States, 390 F.Supp. 1372 (1975), p.3 citing Page v. Watson, 140 Fla. 536, 192 So. 205, p.208.

[15] W W Thornton, 'Pardon and Amnesty' (1885) 6 The Criminal Law Magazine 457, at 358.

[16] ibid, at Section II. "Abettors of such Treasons and other Crimes pardoned and restored to their Lands." https://www.british-history.ac.uk/statutes-realm/vol5/pp226-234#h3-0010.

[17] Report of the Committee of Privy Counsellors Appointed to consider authorised procedures for the interrogation of persons suspected of terrorism, Chairman: Lord Parker of Waddington, March 1972. 

[18] Ireland V United Kingdom (1979-80) 2 EHRR 25.

[19] Report of the Committee of Privy Counsellors appointed to consider authorised procedures for the interrogation of persons suspected of terrorism, Chairman: Lord Parker of Waddington, March 1972. 

[20] Regina (Hume and Others) V Londonderry Justices [1972] NI 91 QBD, at the conclusion.

[21] ibid.

[22] W. Holdsworth, A History of English Law, 3rd Edition, 1922-1923, London, Volume 6, p.241. https://archive.org/details/historyofenglish06holduoft.

[23] The Northern Ireland (Temporary Provisions) Act 1972.

[24] University of Ulster: CAIN Web Service - Conflict and Politics in Northern Ireland; Chronology.

⏩ Christy Walsh was stitched up by the British Ministry of Defence and spent many years in prison as a result.

Amnesty ➖ A Tonic For The Troops

Christy Walsh looks at the British Amnesty controversy.

Rex non potest dare gratiam cum injurid et damno aliorum

The King cannot confer a favour on one subject which occasions injury and loss to others.


Introduction

This article makes no judgment on whether, or not, any former combatants warrant prosecution for unlawful killing’s that they may have committed during the Conflict.  

It is, however, intended to provide more information than is commonly available to remove the current confusion and misconceptions over the function and remit of an amnesty.

Pardons, clemency and amnesties mean the same thing; where the latter is the collective or composite term used when applied to a large class of people such as insurgents or political agitators[1]. Pardons can be implemented in various individual arrangements, such as conditional, free, full, posthumous or pre-charge pardons and they can all be applied collectively as an amnesty.

Amnesty: A sovereign act of pardon and oblivion for past acts, granted by a government to all persons (or to certain persons) who have been guilty of crime or delict, generally political offenses,—treason, sedition, rebellion,—and often conditioned upon their return to obedience and duty within a prescribed time.[2]

Full pardons bring an end to a criminal penalty or void any sentence passed at the end of a trial; also, the pardoned person might even be compensated for any time spent in jail: “however, [it] does not erase the conviction nor imply innocence.” [3] In other words, pardons only negate the penalty but not the actual validity of the conviction. On that basis, there is no precedent of a pardon being granted to prevent investigations or judicial process where prima facie evidence of guilt exists. Whereas, conditional pardons involve an alteration of the original sentence. The terms ‘commutation’ and ‘remission’ are forms of conditional pardons where their objective is to remit, reprieve or otherwise reduce the severity of a sentence. For example, on 27th April 1948, the Lord Chancellor announced that “prisoners who are serving sentences of penal servitude for the part they took in the I.R.A. outrages in 1939 and 1940” were to be released “earlier than in the ordinary course”. [4] The early release scheme under the Good Friday Agreement and the Northern Ireland (Sentences) Act 1998 are a good example of a statutory amnesty for the early release of paramilitary prisoners.[5]

Leslie Sebba, at the Institute of Criminology, Hebrew University of Jerusalem asserts that an:

amnesty was an event of considerable social impact. Moreover, the elation generated among the offending population companied by a concomitant degree of concern on the part of the public in general and the police in particular.[6] 

It was for these reasons that the UK Government was extremely uncomfortable during the Northern Ireland peace talks in the 1990s when it came to prisoner releases. The use of the word amnesty was, for many, a trigger word particularly among those who had been victims of non-state actors to the conflict;as is now evident among the families of those murdered by state actors.

Pardons or amnesties are intended to relieve offenders from a criminal penalty where their otherwise unlawful conduct attracted the penalty or is likely to do so. The Queen’s Pardon is said to forgive and forget an offence committed against the Crown on the undertaking that it will not be repeated. The current proposed statutory amnesty is intended to relieve former British Soldiers from criminal punishments for any murders they may have committed during the conflict. 

However, the amnesty presently being considered is being viewed as a means of preventing any further prosecutions against former British Soldiers from commencing in the first place. A pre-trial pardon or amnesty cannot, in itself, prevent prosecutions where the test for prosecution has been met. While Parliament has the power to enact statutory amnesties, such acts must be compatible with international human rights law and any other relevant international agreements and treaties.

Pre-Charge and Pre-Conviction Pardons

A pardon may be granted any time after the commission of an offence and before judicial proceedings have been undertaken or during their pendency.[7] “A pardon is valid even if the one pardoned has not been indicted or convicted.”[8] However, the grant of a pre-conviction pardon does not have the authority to upset or prevent ongoing legal proceedings because of "the constitutional doctrine that the sovereign cannot exercise judicial power except through her courts.”[9] In other words, a pardon can be granted as a surety against any resulting penalty but cannot prevent the actual trial from proceeding to the normal conviction and sentencing stages: “If granted before conviction, it prevents any of the penalties and disabilities consequent from conviction from attaching.”[10] A pre-conviction pardon cannot prevent the Court from performing its function, but any subsequent conviction would be in name only, because the pardon: "operates as an extinguishment of the penalty inflicted by the judgment of conviction, and all its attending circumstances.”[11] The Court would have to consider if continuing with a prosecution and trial without punishment served the public interest. Unfortunately, because the purpose of the amnesty is in the best interests of former state-actors, the Courts would have to take into consideration Government policy intention to ride roughshod over individual victims’ rights. However, the Court would have to take into account how compelling the evidence against the accused was and if it was against the interests of the public to discontinue legal proceedings.

It is worth comparing the South African model for amnesty and truth recovery. Boris Johnson’s suggested amnesty is primarily focused upon ending all prosecutions of former British Soldiers who may have committed murder and war crimes during the Conflict. In South Africa, a combatant could obtain immunity from prosecution if they revealed and discussed their unlawful acts as part of the healing and truth recovery process. Whereas, Johnson’s model potentially shuts down any further truth recovery in disregard of the interests of victims rights.

Note: Amnesty and immunity can be mistakenly interpreted as meaning the same thing; In the context of this article it is to be understood that pardons relieve a person from a penalty post-conviction and not from being prosecuted per say, whereas, immunity from prosecution allows a person to impart their role in an unlawful killing without fear of being prosecuted.

Beneficiaries of the Proposed Amnesty

Those to whom the proposed amnesty is intended would have to identify themselves to avail of the amnesty. For example, after the Rebellion of the United Irishmen in 1798, the Lord Lieutenant of Ireland, Lord Cornwallis, issued a proclamation on 22nd September 1799 “requiring every person in County Galway who had been engaged in the late rebellion to apply for pardon under the Act of Amnesty.” [12] Whereas, any new amnesty introduced today would lay in abeyance until someone indicated that they wished to avail of it; “Like any other deed, a pardon must be brought judicially before the court by plea, motion or otherwise.”[13] This might only occur once a prosecution has been initiated against someone or they are aware that one is imminent. To comply with modern equality laws, the amnesty would have to include former Loyalists and Republican paramilitaries and not just the intended target of former members of the British Army suspected of committing murder or war crimes.

It would be a matter for the prosecution service or the Court to decide if continuing with a prosecution would be in the public interest. The amnesty itself is unlikely to have the legal or constitutional power to enforce the discontinuance of investigations or prosecutions; though the fact that, ultimately, no penalty can be enforced might itself be persuasive enough for discontinuation of all legacy related prosecutions on the grounds of costs and in the public interest. A prosecution is not evidence of guilt so an innocent British Soldier could potentially seek to rely upon the availability of the amnesty simply to avoid the understandable distress of being prosecuted in error.

However, if the prosecution were to continue in the public interest a successful conviction might be seen as just satisfaction enough. Although the convicted person might not spend a day in jail they would forever stand convicted of murder and must disclose that fact when officially obliged to do so. A pardon "does not obliterate the fact of the commission of the crime [and] it does not wash out the moral stain;” rather, it involves a desire for “forgiveness and not forgetfulness".[14]

In light of the proposed amnesty, both the Court and Prosecution would have to consider, in advance, if it is in the public interest to proceed to trial in such cases. It would be for that technical reason why prosecutions might not be pursued and not because an amnesty has any legal or constitutional authority to stop prosecutions or investigations; “A pardon, while it absolves the offender, does not touch the rights of others.”[15] In addition, any proposed amnesty cannot, in any way, limit or prevent, citizens from pursuing civil actions.
 
30th March 1972 Statutory Amnesty

The first codification of pardons was introduced by King Charles II through the enactment of An Act of Free and General Pardon Indemnity and Oblivion [1660]. The Act was to bring to an end the English Civil War and as a commitment from the King that he would not seek revenge against the Rebels. In return, the Rebels would recognise Charles II as the lawful king and all standing armies would be re-commissioned into service under the crown. The pardons were intended to be complete, in that all offences and punishments were null and void, including the Rebels involved in beheading his father King Charles I. Lands and other property were to be returned.[16]

British troops arrived in Northern Ireland on 14 August 1969, at the request of the then Prime Minister, James Chichester-Clark, while the Battle of the Bogside was raging in Derry. Internment was then introduced on 9th August 1971 by a new Prime Minister, Brian Faulkner. Countless Internees suffered serious physical injuries during their arrests[17] that eventually lead to the Irish Government taking the UK to the European Court of Human Rights for torture and other physical abuses.[18] Regarding the brutality meted out during interrogations, in his Report, Lord Parker concluded as follows:

The blame for this sorry story, if blame there be, must lie with those who, many years ago, decided that in emergency conditions in Colonial-type situations we should abandon our legal, well-tried and highly successful wartime interrogation methods and replace them by procedures which were secret, illegal, not morally justifiable and alien to the traditions of what I believe still to be the greatest democracy in the world.[19]

John Hume and others challenged Brian Faulkner’s authority to introduce Internment and order the British Army to carry his orders out. On 29th March 1972, the Court concluded that section 4(1) of the Government of Ireland Act 1920 limited the Northern Ireland Stormont Government’s powers to introduce new laws or regulations “under the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 which purported to confer powers on officers and members of Her Majesty's forces on duty.”[20] In other words, Mr Faulkner had no authority to give commands to members of Her Majesty's forces in the “navy, the army, the air force, the territorial army, or any other naval, military, or air force”[21]. In other words, he treated the British Army as Stormont's standing army and the Army took orders from him as if they served Stormont and not the Crown.

The Court concluded that all orders and commands given to Her Majesty’s forces by Faulkner “relating to military matters which had been created by legislation by or under the Parliament of Northern Ireland was void and of no effect.” This effectively derives from the 1660 Act of Oblivion that there should be no standing armies other than those under the command and service of the sovereign. Sir William Searle Holdsworth observes that Parliament has never consented to the raising, or keeping, of a standing army since 1660 and the introduction of the Bill of Rights and the Act of Settlement.[22] This means that, while acting under authority of Faulkner, every interaction between the Army and civilian population, if even a 5minute stop at the side of the road, was unlawful.

Within 24 hours, on 30th March 1972, in response to the Court’s judgment in Hume and Others, Parliament introduced a statutory amnesty under the Northern Ireland (Temporary Provisions) Act 1972, wherein, no British soldier would stand trial for any unlawful act committed under the direction of Stormont and the NI Prime Minister. Section 6(1)(b)[23] asserted that all unlawful laws, regulations or orders issued by the NI Government or its Minister are to, retrospectively, be treated as “references to the Secretary of State or any person appointed by him to discharge the relevant functions.” The legislation created a new Northern Ireland Office (NIO), supervised by a new Secretary of State, Mr William Whitelaw.[24] Section 6(2) of the Act retrospectively legalised all unlawful acts committed by the Army: “This Act shall not invalidate anything done before it comes into force."

In effect The Temporary Provisions Act served as a statutory amnesty to all members of the British Army for their part in the widespread unlawful detentions, arrests, house searches, imprisonments, beatings and/or shootings that they had carried out in pursuance of Stormont's orders. Hence, any British soldier who might have ordinarily been prosecuted for his crimes had, within 24 hours, been speedily pardoned in advance of any charges. Under both common law and Article 7 of the European Convention on Human Rights, the law can not make unlawful arrests and imprisonments without trial, retrospectively lawful.

Although members of the British Army had been granted immunity from their criminal liability, no remedy was provided for those unlawfully detained, mistreated, imprisoned and even murdered by the British Army between 9th August 1971 and 29th March 1972.

Conclusion

The proposed introduction of another statutory amnesty to shield former members of the security forces from accountability for crimes committed during the course of the NI Conflict ought not to escape the scrutiny that the 30th March 1972 statutory amnesty did. The 1972 statutory amnesty was introduced at a time when lawyers and the public were not as aware of human and civil rights as they are today.

There is no precedent in UK law where a pardon relieved a suspect from scrutiny; pardons only relieve the guilty from any subsequent penalty for their criminal conduct and not an investigation. If prosecutions are not pursued where there is prima facie evidence of guilt, it would be because it was considered contrary to the public interest in cases where a penalty cannot be implemented or enforced on account of the proposed pardons. Taking a lesson from South Africa, immunity from prosecution was available where Combatant’s were prepared to give a full and open account of any unlawful killings they may have been involved in.

Finally, any valid grounds for civil action against British Soldiers would remain unscathed by any amnesty because citizens’ rights cannot be forfeited or negated on foot of any pardon or amnesty.

(1) In 1848 the UK Parliament debated extending pardons to include 3 Canadian political agitators who had been not been pardoned along with others, see Pardon of Political Offenders, HC Deb 06 April 1848 vol 97 cc1369-90

(2) Black's Law Dictionary Containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 2nd Edition, West Publishing Co., St. Paul, Minnesota, 1910, at page 66:

(3) The Queens Pardon, C.H. Rolph, Cassell and Collier Ltd, 1978, pp.35-36

(4) Written Answers, 27th April 1948, Volume 155. 

[5] Daniel F. Mulvihill, "The Legality of the Pardoning of Paramilitaries under the Early Release Provisions of Northern Ireland’s Good Friday Agreement," Cornell International Law Journal, Volume 34, Issue 1 2001, Article 6, at page 241.

[6] Leslie Sebba, "Amnesty—A Quasi-Experiment", The British Journal of Criminology, Vol. 19, No. 1 (January 1979), pp. 5-30, at p.6.

[7] W W Thornton, 'Pardon and Amnesty' (1885) 6 The Criminal Law Magazine 457, at 471

[8] Pardon and Amnesty, The Criminal Law Magazine, Vol. VI. July 1885. No. 4. pp.457-500, p.485

See also, Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867), p.380. And, n50,p.3.

[9] R (On the Application of Michael Shields) v Secretary of State for Justice [2008] EWHC 3102 (Admin), para.22.

[10] ibid, p.2.

[11] W W Thornton, 'Pardon and Amnesty' (1885) 6 The Criminal Law Magazine 457, at 486.

[12] James G. Patterson, "Republicanism, Agrarianism and Banditry in the West of Ireland, 1798-1803", Irish Historical Studies, Vol. 35, No. 137 (May 2006), pp. 17-39, at page 33.

[13] W W Thornton, 'Pardon and Amnesty' (1885) 6 The Criminal Law Magazine 457, at 493.

[14] F. Gregory Murphy v. Gerald R. Ford, as President of the United States, 390 F.Supp. 1372 (1975), p.3 citing Page v. Watson, 140 Fla. 536, 192 So. 205, p.208.

[15] W W Thornton, 'Pardon and Amnesty' (1885) 6 The Criminal Law Magazine 457, at 358.

[16] ibid, at Section II. "Abettors of such Treasons and other Crimes pardoned and restored to their Lands." https://www.british-history.ac.uk/statutes-realm/vol5/pp226-234#h3-0010.

[17] Report of the Committee of Privy Counsellors Appointed to consider authorised procedures for the interrogation of persons suspected of terrorism, Chairman: Lord Parker of Waddington, March 1972. 

[18] Ireland V United Kingdom (1979-80) 2 EHRR 25.

[19] Report of the Committee of Privy Counsellors appointed to consider authorised procedures for the interrogation of persons suspected of terrorism, Chairman: Lord Parker of Waddington, March 1972. 

[20] Regina (Hume and Others) V Londonderry Justices [1972] NI 91 QBD, at the conclusion.

[21] ibid.

[22] W. Holdsworth, A History of English Law, 3rd Edition, 1922-1923, London, Volume 6, p.241. https://archive.org/details/historyofenglish06holduoft.

[23] The Northern Ireland (Temporary Provisions) Act 1972.

[24] University of Ulster: CAIN Web Service - Conflict and Politics in Northern Ireland; Chronology.

⏩ Christy Walsh was stitched up by the British Ministry of Defence and spent many years in prison as a result.

5 comments:

  1. Fascinating piece that shows the complexity and nuance that comes with this issue. A lot of good work there Christy.

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  2. Cuts through all the legalese to give great clarity on the meaning of all the vexed words in question.

    Well done, Christy.

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  3. So, am I accurate in my understanding Christy, the likelihood of general pardons or amnesties are unlikely due to the legislative challenges they would most likely present?
    And, even if those legislative challenges were overcome or circumvented 'victims' would still individually or collectively in a class type action still have recourse to civil law?

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  4. HJ

    Yes that is right.

    However, I am also hitting upon the grey area of prosecutions. In the past, where pre-trial pardons have been granted it was assumed pointless to pursue a prosecution because of cost considerations and fact no actual punishment can be imposed. Currently, the UK Gov. is considering amnesty for the purpose to end investigation/prosecutions of ex-service personnel. This is something of interest to them beyond here -they also want to stop similar prosecutions of ex-Iraq and Afghanistan veterans.

    Trying to stop or stifle investigations or prosecutions are outside of the remit of pardons/amnesties and thus would be an unconstitutional use of an amnesty. Effectively that would be an unjust encroachment of the interests of others. Truth recovery is a valid public interest and a prosecution might be the only legitimate means of getting at a conclusion.

    The distinction between prosecutions and civil actions is that in the former the state picks up the costs whereas individual families could carry the cost of unreasonable and unjustified delays and obstacles to disclosure etc. On that basis it could be a disproportionate burden to put on families and in some exceptional cases, where it is also in the public interest, a prosecution could ensue even where the accused will be relieved of any penalty at the conclusion of a trial.

    One also has to consider how it is in the public interest to allow former members of the security forces who may have committed brutal murders to get away without consequence -even giving information in exchange for immunity. Even pardons come with quid pro quo caveats -yet former soldiers who may have committed an unlawful killing are not inconvenienced in any way to tell the truth.

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  5. AM/BG

    Thanks for comments. And thanks for publishing the article.

    ReplyDelete