LAST UPDATE | 29 Sep 2020
AN INTERNAL REVIEW of the Public Prosecution Service’s (PPS) decisions not to prosecute 15 soldiers reported in connection with the events of Bloody Sunday has resulted in those decisions being upheld.
The PPS has today communicated this outcome to the families of those killed and to those injured victims who requested formal reviews of the decisions taken in March 2019 not to prosecute 15 former members of the military.
The range of potential offences included murder, attempted murder and causing grievous bodily injury with intent.
Bloody Sunday occurred in the Bogside area of Derry on 30 January 1972 when British soldiers shot 26 unarmed civilians during a protest march against internment without trial.
Families of the victims have said they are “deeply disappointed” by the decision and considering a judicial review.
Soldier F is among the 15 individuals to which these new decisions relate, but the prosecution that commenced against him in 2019, which relates to two charges of murder and five charges of attempted murder, continues.
He is charged with the murder of William McKinney (27) and James Wray (22), and the attempted murder of four other men – Joseph Friel, Michael Quinn, Joe Mahon and Patrick O’Donnell. He faces a final charge of “attempted murder of a person or persons unknown”.
Fourteen people died: 13 were killed outright and another man died four months later from his injuries.
After the lengthy second inquiry into Bloody Sunday – called the Saville Inquiry which lasted 12 years – it was found that the killings were “unjustified” and it led to an apology in the House of Commons from then-UK Prime Minister David Cameron in 2010.
The most recent reviews were undertaken by PPS Senior Assistant Director Marianne O’Kane, who was not previously involved in the cases. The requests received related specifically to the deaths of 10 of the victims who died on the day, as well as 10 others who were injured.
In a statement released today, the PPS said: “In line with the review process set out by the PPS Code for Prosecutors, O’Kane applied the Test for Prosecution afresh to the large volume of complex evidence and information considered by the original PPS decision-maker in order to reach new decisions. Detailed legal submissions received were also considered in the course of the reviews.
“She has taken new decisions in respect of each review request and concluded that the Test for Prosecution is not met on evidential grounds to prosecute any of the 15 soldiers in connection with the specific deaths or injuries sustained on 30th January 1972.
“All parties who requested a review received a detailed explanation of this outcome in writing earlier this morning. The 15 suspects concerned were also informed.”
‘Deep disappointment’
Commenting on her decision, O’Kane said: “In March 2019, the PPS engaged extensively with the families of those killed and injured on Bloody Sunday to explain the reasons why the original decision-maker concluded that the available evidence did not meet the Test for Prosecution for all but one suspect reported.
Given the importance of these decisions to all affected by them and the extensive public interest in the events of Bloody Sunday, the deep disappointment felt by many families at that time was wholly understandable.
“This was despite assurances received from the PPS that its decision-making had been conducted in an independent, fair and impartial manner. It was therefore also understandable that a number of the bereaved families and injured victims subsequently exercised their right to request a review of decisions relating to 15 of those suspects originally reported.”
O’Kane said the reviews began substantively in November 2019, after receipt of all legal submissions, and involved applying the Test for Prosecution afresh to all available evidence submitted by the Police Service of Northern Ireland (PSNI) from 2016-17.
“I have concluded that the available evidence is insufficient to provide a reasonable prospect of conviction of any of the 15 soldiers who were the subjects of the reviews. Accordingly, the decisions not to prosecute these 15 individuals all stand.
“I know that today’s outcome will cause further upset to those who have pursued a long and determined journey for justice over almost five decades. I can only offer reassurance to all of the families and victims of Bloody Sunday, and the wider community, that my decisions were conducted wholly independently and impartially, and in accordance with the Code for Prosecutors.”
‘Ongoing fight for justice’
Sinn Féin has described the decision as “deeply disappointing”, saying the party will continue to support families “in their ongoing fight for justice”.
Colum Eastwood, leader of the SDLP, said he is “very disappointed” by today’s announcement.
DUP MP Gregory Campbell said the decision of the PPS is “not surprising”.
“The issue now will be, is there now going to be a judicial review which is going to entail further cost – remember there’s already been almost £200 million (about €219.5 million) spent on the public inquiry, the most expensive in legal history in the UK,” he told the BBC.
“Is there going to now be a judicial review, is that going to mean further trauma and delay for all of those involved, and what is the outcome going to be?
“Really, I think more and more people will be saying how much further is this going to go on, because there are families today across Northern Ireland who are still grieving.
“There are families of two police officers who were murdered in the area where the Bloody Sunday events happened, just three days before. They have never received justice, never received a public inquiry and never received any independent review into the circumstances surroundings the murders of their loved ones.”
Judicial review proceedings
Ciaran Shiels, a solicitor with Madden & Finucane, a firm which represents the majority of the victims of Bloody Sunday, said today’s decision is “deeply disappointing”.
Shiels said, after the PPS decisions last March, he and colleagues “embarked upon a painstaking analysis of the reasons relied upon by the PPS to prosecute only one soldier, and only for some of the murders he was involved in on Bloody Sunday”.
“Submissions extending to almost 150 pages were lodged with the PPS setting out why we considered their decision making was flawed and unlawful.
“Today’s decision by the PPS to uphold its original decision and to bring no further rosecutions is deeply disappointing for the families and wounded who are left with the firm conclusion that members of the Parachute Regiment have effectively gotten away with mass murder.”
Shiels said the families have been left with no alternative “but to consider challenging these decisions in the High Court by way of judicial review proceedings”.”
The Madden & Finucane firm represents the family of William McKinney, with whom Soldier F is being prosecuted for murder, and also Joe Mahon, Joe Friel and the late Patrick O’Donnell, with whom Soldier F is being prosecuted for attempted murder. They also represent a further eight families of the deceased who sought reviews of the PPS decision, and several of the wounded.
Kate Nash – whose brother William Nash was shot and killed, and father Alexander Nash was shot and wounded – today confirmed she intends on challenging the decision on the premise that the PPS has “failed to correctly apply the consideration of joint enterprise” in circumstances in which it can be established that a number of soldiers were at least collectively involved in the events that led to the death of her brother.
The Bloody Sunday Inquiry found that Soldier J may have been responsible for one of the three casualties at the rubber barricade, Soldier P was responsible for at least one, and the possibility that Soldier E was responsible for at least one could also not be eliminated.
The PPS has upheld the decision not to prosecute either Soldier J or Soldier P.
Furthermore, Nash complained to the PPS that they had failed to properly consider all of the charges including the offence of Misconduct in Public Office. The PPS has asked that Nash now refer this charge to the police for consideration.
In a statement Nash said: “It is deeply disappointing that after a further review and a further delay the correct decision has still not been reached.
“It is clear from the decision letter sent to me that the PPS have failed to consider the collective actions of the soldiers, and instead, allowed each of them to act with impunity based on the fact they cannot be sure which one of the three fired the fatal shots.”
Nash said the PSNI failed to include misconduct within their original investigation and she has asked her solicitor Darragh Mackin to write to the PSNI asking for this charge to be “considered without delay”.
Mackin added: “It is clear from the PPS decision today that all of the charges have not been considered in this review. In light of the contents of this recent decision, we now intend on asking that the PSNI conduct an urgent investigation into the charge of misconduct in public office given its clear exclusion in the first instance.”
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