The killing in 1974 of John Patrick Cunningham, a 27 year old man with the mental age of a child and an ingrained fear of British army patrols, was utterly wrong and indefensible. Even if one allows for the fact that he may have aroused suspicion and was running away from his killers, there was no legal or moral excuse for killing him. We would condemn American police for shooting a person running away. And there have been similar cases closer to home, one of which is under investigation currently.
The fact that a former British soldier, Dennis Hutchings, was, at the age of 80 and in poor health, standing trial this week for the attempted murder of Mr Cunningham, some 48 years after the event, shines the spotlight on the whole issue of historic criminal prosecutions arising from the Troubles in Northern Ireland. Mr Hutchings had pleaded not guilty.
For the family of John Patrick Cunningham, Hutchings’ death in Belfast from Covid-related complications ends the criminal process without a result. His death brings no satisfaction or closure; the fact that he faced trial may bring some degree of vindication. Had he been acquitted, there would have been none. Had Hutching died two or three years ago, there would have been no trial and no prospect of deciding on his guilt or innocence.
Some people take the view that grave crimes such as murder, maiming, rape and sexual abuse should never be left un-investigated or, if possible, un-prosecuted however long ago they are alleged to have occurred.
The problem with adopting that view is that some perpetrators will be shielded from prosecution and many relatives of victims know that their cases will never end up in a prosecution because of de facto immunity from prosecution.
What chance is there of the man known as Stakeknife facing criminal justice? There must be a good number of people who could testify against him for the string of murders he committed – people who were in the IRA when he acted as its torturer and executioner, and people in MI5 and MI6 who ran him as a British agent during his campaign of killing. But there is absolutely no chance that either group will come forward to provide evidence for very obvious reasons. He has bought the silence of both parties by the enormity of his crimes.
So when the Seanad recently and unanimously adopted a motion condemning Boris Johnson’s cack-handed proposal for a legislative amnesty for all involved in the Troubles, I found myself facing a dilemma.
Sinn Féin senators condemned in the strongest terms killings by Crown forces over the duration of the Troubles, a catalogue of atrocities that they described in vivid detail. They rejected the idea of an amnesty in the strongest possible terms, not least because it would amount to an egregious breach of the 2014 Stormont House Agreement, a pact which had allowed Sinn Féin and the DUP to resume operation of devolved government institutions in the North.
But there is one thing that should be borne in mind. After the Good Friday Agreement was signed in 1998, it took eight further years to implement it to the point reached in the St Andrews Agreement in 2006.
During that period when decommissioning was eventually done to a satisfactory degree, and when the PSNI replaced the RUC, and all the parties adopted the position of upholding the criminal and civil law, the leaders of Sinn Féin incessantly demanded that there should be immunity from criminal prosecution for un-convicted IRA members.
In this state, a de facto moratorium on investigation and prosecution of IRA members (other than those described as dissidents) came into operation. This was demanded by Adams and McGuinness. And it was conceded. Every Troubles-related murder, bombing and maiming is, on paper, a serious offence in this state by reason of the Criminal Law Jurisdiction Act of 1976.
But the Irish Government of which I was a member took the decision that further investigation and prosecution by An Garda Siochana of such historic offences was no longer warranted or justified by reason of the greater interest in ending the Provisional campaign and all other political violence in Northern Ireland.
And so, as far as this state was concerned, a line was drawn across the page of historic Provisional IRA criminality in Northern Ireland.
What is strange, to my mind, is the total failure by most in the media south of the border to remind Sinn Fein politicians that it was they who insistently demanded criminal immunity for IRA members as part of the wider implementation of the Good Friday Agreement.
Their spokesmen might remember that the leadership of Sinn Fein begged on bended knee for an effective amnesty in criminal law for IRA historic crimes. Britain took a different course with its letters of comfort issued to the suspected perpetrators of at least 300 deaths. Let’s have a little honesty in our approach to historic crimes and their prosecution.