By Judge Michael Mentel
Legal proceedings in the north within the past year have revealed multiple unlawful killings committed decades ago by British authorities and loyalist paramilitaries. These proceedings have consisted of inquiries, inquests, investigations, and court trials (collectively the “inquiries”).
These inquiries have found that the British military, the Special Air Service (SAS), the Royal Ulster Constabulary (RUC), British agents, loyalist paramilitary organizations such as the Ulster Defence Association (UDA), the Loyalist Volunteer Force (LVF) and the Ulster Volunteer Force (UVF), along with British agents conspiring with loyalist paramilitaries, committed unlawful killings in the north.
These killings occurred twenty-five, thirty, and forty years ago. The Troubles are over. So, why take up these inquiries now? What is to be accomplished by dredging up the past? The answer: Accountability.
Lord Acton observed that, “[e]verything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.” For those killed by the British government, no one has been held accountable, and the secrets remain.
Government is Accountable to the People
A government cannot act outside of the law, no matter when it does so. Although individuals may violate the law, their violation does not excuse unlawful conduct by the government. Rather, it is imperative that the government adhere to the law in such situations.
Put another way, the government must be held to a higher standard. When it fails that standard, it is accountable to the people for its failure. The government of the United Kingdom of Great Britain and Northern Ireland is no exception.
The British government is comprised of a representative, parliamentary, form of government. It does not have a constitution per se.’ Instead, it has an uncodified constitution that allows the government to change constitutional provisions by parliamentary vote.
It does provide its monarchy with a slight role in its functions, nevertheless it is a representative form of government. The government also includes a judiciary branch that does review redress of actions instituted by citizens against the government.
The British government’s refusal to investigate its own involvement in unlawful killings is an impediment to justice and accountability. A legal practice it uses to veil its involvement when appearing in court is Public Interest Immunity (PII). Simply put, PII is a rule of evidence in British law that bars relevant evidence from being admitted in court proceedings when the government feels it is not in the “public interest” for the evidence to be disclosed.
For the government to avail itself of PII, it must file a certificate and request it from the court. Although the court technically determines whether to grant or deny PII, it is usually allowed without review. In several inquiry decisions, courts have held that they were unable to arrive at a determination on the government’s involvement in a killing because of PII blockage. Notwithstanding the passage of time and the suppression of evidence, government accountability is emerging.
Recent Inquiries
Within the past year, I have authored articles on several of these inquiries. All these inquiries have revealed facts about these killings long hidden, or ignored, for decades.
On September 11.2024, the Secretary of State for Northern Ireland announced a public inquiry into the murder of Patrick Finucane (/fi’nu:kǝn/), a criminal defense attorney known for representing paramilitary members in the north. The announcement came thirty-five years after he was killed.
The driving force behind the eventual inquiry was his family and the “Stevens Enquiry” report. The report found that there was evidence of collusion between the RUC, the UDA, and the involvement of British agents in the murder.
On February 6th of this year, the Coroner’s Court of Northern Ireland handed down a judgment on the murders of Provisional IRA volunteers Kevin Barry O’Donnell, Patrick Vincent, Peter Clancy, and Sean O’Farrell by the SAS. The judgment came thirty-three years after the killings.
The killings have become known as the “Clonoe Ambush.” The Court concluded that the SAS did not hold an honest belief that use of force was necessary.
The SAS had fired 570 rounds at the four men. The four men made no return fire.
Additionally, the SAS made no attempt to arrest the men, even as they lay on the ground dying. The final determination was that the killings were unlawful.
The Police Ombudsman for Northern Ireland announced on March 18th of this year that the original investigation conducted by the RUC into the killing of Provisional IRA volunteer Colum Marks lacked “independence and rigor” and was “wholly inadequate.” This announcement coming thirty-four years after the killing.
The Ombudsman, Ms. Marie Anderson, found that, “[g]iven the seriousness of the incident, in the context of the European Convention on Human Rights Article 2 and the ‘right to life’, I am of the view that the original RUC CID [Criminal Investigation Department] investigation was wholly inadequate in a number of important respects.” The Police Ombudsman determined in 2021 that a criminal offence may have been committed and forwarded a file of evidence to the Public Prosecution Service (PPS).
On April 3rd of this year, a Belfast Court of Appeals ruled that the British government must conduct an independent public inquiry into the murder of Sean Brown, and it must be established without further delay. The appellate court decision came twenty-eight years after the killing.
Sean Brown was the Chairman of the local GAA. He was not affiliated with any paramilitary organization or political party. On May 12, 1997, he was kidnapped, beaten, and shot in the head by members of the LVF.
In 2024 a legal Gist was released stating that “intelligence material [from the British government] indicates that at the time of the death of Sean Brown, a number of individuals linked through intelligence to the murder were agents of the [British government].” The British government is contesting the court’s decision.
A day after the Belfast court of Appeals decision on the Sean Brown murder, the Police Service of Northern Ireland (PNSI) charged a man with the murder of journalist Martin O’Hagan. The charge came twenty-four years after his murder. O’Hagan had written extensively on the activities of the LVF, and it is surmised that the organization was involved in the murder.
The Police Ombudsman looking into the murder has been criticized for the length of time it has taken to draft a report. A report has now been drafted. To this point, no one has been held accountable for his murder.
British Accountability
A government cannot be held accountable for its transgressions unless the people hold it to account. It is imperative that the British government continue to be held accountable. We, the diaspora in America, have a role we can play in this endeavor.
We must let our elected federal representatives know that the failed Legacy Act of 2023, as passed by Parliament, and the British government’s use of PII, is not the solution to accountability. The Legacy Act is a mechanism by which the British government shields itself from accountability. PII serves the same purpose in judicial proceedings.
We want our representatives to demand accountability from the British government for engaging in unlawful killings, urge the repeal of the Legacy act, and curtail the use of PII.
