Guardsmen Fisher and Wright

HL Deb 20 July 1998 vol 592 cc653-72

7.36 p.m.

Lord Campbell of Alloway rose to move to resolve, That an humble Address be presented to Her Majesty praying that Her Majesty should exercise the Prerogative of Mercy to release Guardsmen Fisher and Wright from mandatory life imprisonment in exceptional circumstances as other available mechanisms would unduly delay their release.

The noble Lord said: My Lords, I am more than content to treat this as if it were a dinner hour debate, which in effect it is. In the wake of your Lordships' debate on 23rd June, the Secretary of State set up a review to which this Motion now relates. My noble friend Lord Dubs explained the procedure on 6th and 16th of July in context with the amendment moved by my noble friend Lord Tebbit. This review is a welcome initiative which enhances the purpose of this Motion. The Secretary of State proposes to give her decision as to release towards the end of August. It is accepted that immediate release from a mandatory life sentence for murder presupposes time for due inquiry. This is a matter for the executive under delegated remit of the Royal Prerogative. It is acknowledged by statute; not the judiciary, not the legislature.

The Government Chief Whip was good enough to inform me this afternoon that it is not the intention of the Government to oppose this Motion; and for this relief I am indeed most grateful. If this Motion were to be carried, the humble Address, when received, would be sent straight off to the Secretary of State. It would serve as a representation from your Lordships' House, confirming the opinion already expressed in favour of immediate release, as sought indeed by my noble friend Lord Tebbit, but by other means. Such is the practical effect of the form in which the Motion is cast, which would be of considerable persuasive consequence without any hint of confrontation with government.

The Secretary of State would take into account all representations and all affidavits and documents on which your Lordships concluded that the findings as to culpability were fundamentally flawed and that the conviction was a grave and manifest miscarriage of justice. The Secretary of State would no doubt take into account that the amendment of my noble friend Lord Tebbit—supported by my noble friend Lord Cope of Berkeley—was to send a strong signal for release as soon as possible. On that your Lordships' House is unanimous.

But one has to accept that until the debate of 23rd June both Secretaries of State were bound to rely on the findings of the judge, that there was no possible justification for either Fisher or Wright to have opened fire as they knew they were not exposed to any appreciable degree of danger and that McBride whom they shot was unarmed". These findings are the ultimate degree of culpability and indeed were reflected in the last decision of the Secretary of State on 17th June on remission by the court on 22nd May. These findings were based on partial and wholly unsatisfactory evidence, contrary to early accounts given to the police by three residents of the New Lodge area of Belfast hostile to these armed foot patrols, who said that when the lance sergeant in charge of the patrol stopped McBride, he searched him; and so was found by the judge to be unarmed.

According to the affidavit evidence of the lance sergeant, as confirmed by Guardsman Williams—the fourth man in the patrol—and CSM Dunn, the platoon sergeant in various aspects, the lance sergeant did not search McBride who indeed attempted to evade, and evaded, the proposed search.

The noble and gallant Lord, Lord Inge, then CGS, and who, alas, is unable to speak today, but would have wished to have done so, and the noble Lord, Lord Thomas of Gresford, identified as the crux of the case whether or not the lance sergeant searched McBride. If he did not, according to the documents in the Library, the findings which supported conviction and have since thwarted release, are wholly untenable.

The question is whether these findings will continue to thwart release—findings which your Lordships concluded on 23rd June, on the documents in the Library, and in the light of the speeches made, were fundamentally flawed. As to this, the noble Lord, Lord Dubs, has said, quite reasonably, that no assurance can be given as this would pre-empt the decision of the Secretary of State.

It is therefore of cardinal importance that a representation, a strong signal, a message—call it what you will—as to release as soon as possible should be sent to the Secretary of State by your Lordships as an exercise of mere persuasion. As a means to this end, noble Lords on all sides of the House are respectfully invited to support this Motion.

The narrative is wholly based on affidavit evidence in the Library and is devoid of any embellishment. On 4th September Fisher and Wright—first-class soldiers of good character, experienced in anti-terrorist drill and practice—were part of a foot patrol with Guardsman Williams, as armed soldiers in aid of the civil power in the New Lodge area of Belfast under the command of Lance Sergeant Swift, a reliable patrol commander on his fourth tour of duty in Northern Ireland. New Lodge was a high-risk area of terrorist activity, where, under the aegis of the provisional IRA, the doors are kept open as an escape route and where in recent weeks these patrols have come under persistent attack from coffee-jar bombs, which are improvised grenades containing shrapnel, semtex and a detonator with a killing radius of 30 metres.

Lance Sergeant Swift, if called to testify, would have said: at the morning briefing on 4th September and orders of the day, the threat of attack from coffee-jar bombs was stressed as the patrol would be out for over two hours; that it was well known to the patrol that the coffee-jar bomb was often directed with a plastic bag from behind the engine of a parked car; that it was an extremely dangerous, easily concealed weapon, designed to be used against such foot patrols; that leading the patrol he had cause to stop McBride, who with an arm across his waist was holding something bulky under his jacket. Fisher covered him, Wright covered down the street, Williams covered the rear. The lance sergeant started to question McBride and when he gave his name and address the lance sergeant knew that the RUC was searching at that address. The lance sergeant tried to make radio contact but failed. He said, "I'll search you. Empty your pockets onto the wall", and again tried to make radio contact. Before he was able to search, McBride grabbed the earpiece of the radio from the lance sergeant's ear and lunged at him. The lance sergeant recoiled and McBride made a dash for it, vaulting over the wall and railings. As McBride did so, he pulled from his jacket a thin white plastic bag containing a solid looking cylindrical object, which the lance sergeant thought would be a coffee-jar bomb to be used against the patrol in a "come on" ambush. The lance sergeant made a dash to catch him but fell to the ground. McBride ran towards the wall. The lance sergeant shouted, "Grab him". Fisher tried to grab him but failed. The lance sergeant did not shout, "Don't shoot". They all went in pursuit. McBride was gaining on them, still with the bag in his hand, heading towards a parked car. Three yellow card warnings, "Army—halt or we'll fire", were given and disregarded. McBride was shot, still running with the bag in his hand towards the parked car. Wounded, he fell behind the parked car and then struggled to a house. It was then that the lance sergeant shouted, "Don't shoot". The area was deserted. There was no one about until after the shooting".—[Official Report, 23/6/98; col. 218.]

The colonel—who, with the company commander, saw Fisher and Wright when they returned to barracks before they were arrested on 4th September and interrogated on 4th and 5th and charged by the RUC with murder on 5th—has deposed that when he saw them they were "shocked" and said that they acted in good faith, believing that their lives and the lives of the patrol and others, were in danger. They said that they fired in accordance with the terms of engagement.

The colonel also deposed that in his belief they acted in accordance with the terms of engagement as armed soldiers in aid of the civil power on the streets of Northern Ireland; and that those under his command were in danger 24 hours a day, seven days a week—a belief supported on 23rd June by the noble and gallant Lords, Lord Bramall and Lord Inge, the noble Lord, Lord Chalfont, my noble friend Lord Vivian and all noble Lords who spoke to this.

According to paragraph 10 of the affidavit of the lance sergeant (to be found in the Library) a few days before the trial, he was questioned by two RUC officers, one of whom had questioned Fisher and Wright on 4th September. I quote from that passage: Their aim was to get me to alter aspects of my statement"— that was the recorded interrogation of 10th September 1992, two years before trial— indicating my firm recollection [of] having seen what I believed to be a coffee-jar bomb. The questioning was aggressive. I refused to alter a single word". At the trial neither the lance sergeant, Williams nor Darren were called to testify. The evidence of Fisher and Wright that they acted in good faith in accordance with the terms of their engagement, was rejected.

The noble and gallant Lord, Lord Inge, said on 23rd June that, This was not just a routine patrol". [It had] "specific tasks … based on hard intelligence. There had been more than 20 attacks [on these patrols] with lethal coffee-jar bombs and 18 incidents of shooting and in one a guardsman had been killed"; namely, Shackleton. There is no doubt about the threat they feared. He added: it is totally understandable that Fisher and Wright acted as they did".—[Official Report, 23/6/98; col. 226.] That was from the then CGS. He said that the conduct of the trial in all aspects relevant to conviction was "incredible". That was the word that he used. I beg to move.

Moved to resolve, That an humble Address be presented to Her Majesty praying that Her Majesty should exercise the Prerogative of Mercy to release Guardsmen Fisher and Wright from mandatory life imprisonment in exceptional circumstances as other available mechanisms would unduly delay their release.—(Lord Campbell of Alloway.)

7.50 p.m.

Lord Bramall

My Lords, like, I suspect, a number of other noble Lords, I do not fully understand the exact constitutional position of the Queen's Prerogative of Mercy, imagining that Her Majesty is bound to act on the recommendation of the very Minister or Ministers to whom, so far, our pleas and urgings, although utterly reasonable and widely supported, have fallen on deaf ears.

What I do know, however, is that the two Scots Guardsmen, Guardsman Fisher and Guardsman Wright, having already served what amounts to (taking into account normal remission) a custodial sentence of between eight and nine years, for what might have been a tragic, split-second error of judgment, but which they believed constituted (under the circumstances) their duty, should now be released forthwith. They should not have to suffer any longer the reality and stigma of a life sentence which, although mandatory under the law for the offence for which they were convicted, was wholly inappropriate in terms of justice; nor would it be other than invidious if the decision on their release was to be delayed just so that it could be entwined with political considerations affecting the release of terrorists on both sides. After all, those are the very people whom the whole training of soldiers such as Fisher and Wright was designed to thwart.

So, if the Motion in the name of the noble Lord, Lord Campbell of Alloway, to present an Humble Address to Her Majesty the Queen will help to persuade the Secretary of State for Northern Ireland that the time really has come to initiate the release of Guardsman Fisher and Guardsman Wright, I most readily support it.

7.52 p.m.

Lord Vivian

My Lords, I have served in Belfast, as thousands of others have done. Before going to Northern Ireland, every regiment receives excellent, well prepared and highly sophisticated training. I have patrolled in the remarkably unpleasant and dangerous New Lodge area of that city where Fisher and Wright were on the day that MacBride was killed. I know how those guardsmen felt when they started their patrol that day and the immense strains and pressures they were under.

Although Her Majesty's Government do not accept responsibility for the defence submissions or for the judge's verdict, they have overall control over the mounting of the case for the prosecution. I should like to bring to the attention of those in authority and to the general public the fact that there are serious concerns about the trial of Guardsmen Fisher and Wright, concerns which, in my humble opinion, amount to a gross miscarriage of justice.

A number of questions arise from the new sworn affidavits, which have been placed in the Library, which I have read with great care. I should like to know why that evidence was never produced to the court. If it had been presented to court, the outcome of the trial might have been very different.

I wish to concentrate on four important facts. The first issue is the search. Swift denies searching MacBride, and Williams has corroborated his statement. In my view, it is clear that Swift was physically prevented from searching MacBride. Why did Swift order the three men in his patrol to grab MacBride? Presumably, because he had not been able to search him by then. If he had searched him and found nothing, he would not have given chase, thus endangering their lives even more. If MacBride had nothing to hide, why did he evade being searched? Presumably, because he was carrying a coffee-jar bomb.

The second fact is that all four members of the patrol saw MacBride carrying a transparent plastic bag in which was a cylindrical object. Under existing regulations, that gave the patrol every right to adopt the action that it took.

Thirdly, the inhabitants of the New Lodge area are particularly resourceful at removing incriminating evidence from the scene of an incident. It is no wonder that no coffee-jar bomb was found on MacBride as he would have dropped it off as he went through 15 Upper Meadow Street.

My fourth point concerns the evidence given by the three local residents. In this unpleasant New Lodge area, it is not unknown for people to give false evidence when required to do so. The witnesses cannot be said to be impartial. Indeed, one of those witnesses had 12 convictions for shoplifting and others for receiving and handling stolen goods, for disorderly behaviour and for failing to surrender to bail. Their evidence for the prosecution was unreliable and inconsistent.

Both Swift and Williams have said that there were no bystanders. Swift has said that there were no civilians in the immediate area. The total lack of civilians was most unusual, particularly as it was the school holidays and around 10.20 in the morning. It has been my sad experience that that is often a sign of an ambush. My personal view is that that ambush was thwarted because of the sudden and unexpected appearance of MacBride. In IRA terms, anything that does not go according to plan is immediately aborted as the IRA takes no unnecessary risks. It is most unlikely that there would have been three bystanders out on the street under those circumstances.

Furthermore, when the adrenalin is flowing very fast through the body, the automatic reactions by a soldier conform to the drills and commands learnt in training. Under those immense pressures, the mind is normally incapable of using words that have not been practised and rehearsed time and time again during training. To read that three mythical bystanders said that they had heard radically different versions, interspersed with foul language, of the laid-down command, "Army, halt or I'll fire", is so unlikely as to be, in my judgment, quite inconceivable. In any event, how could the three alleged bystanders have observed the search or heard the commands shouted by Fisher and Wright in Upper Meadow Street, some distance away with so many houses between them and where the incident took place?

I should like to ask the Minister why the prosecuting authorities decided to prosecute when the veracity of the bystanders' evidence is in doubt.

In conclusion, the Minister informed us in our previous debate on this that the Secretary of State can at any time, if she thinks fit, release a person serving a term of imprisonment for life providing she consults with the Lord Chief Justice and the trial judge, if available. Why does she not do so? Are those two men, who were merely carrying out their duty for the nation, to languish in prison when others, many of whom have committed unspeakable crimes, are to be released? It is at this point that the whole matter becomes political. There has been a gross miscarriage of justice and it must be put right as soon as possible.

7.57 p.m.

Lord Chalfont

My Lords, I rise to support as strongly as I can the Motion in the name of the noble Lord, Lord Campbell of Alloway. I should like noble Lords for one moment, if they can, to put aside thoughts of the Scots Guards with their great reputation and powerful image and to remember that we are talking about two young Scotsmen, Jim Fisher from Ayr, who was aged 24 at the time, and Mark Wright from Arbroath, who was aged 19. Those two young men did not go out that day to kill innocent people. They went out to perform what has already been called their duty in aid of the civil power—in other words, to help the police to protect innocent people from those who were out that day intending to kill. That is what those two young men were doing.

On 4th September 1992, the day with which we are concerned, there was an incident and someone, innocent or otherwise, was killed. As the noble and gallant Lord, Lord Bramall, pointed out, it might have been an accident, an error of judgment. I make no comment on that. However, as the noble Lord, Lord Vivian, hinted, I think it is very difficult for anyone who has not stood in a jungle clearing in Malaya, in a terrorist village in Cyprus, or in the African bush with a small patrol, to comprehend how such an accident might have happened. These young men were in none of those places but in a part of Northern Ireland known to be a dangerous area. They were in an urban terrorist area in which their regiment and other patrols had already been fired upon and attacked and in which one of their own comrades had been shot by an enemy sniper. While that was in their minds, before them was a man who, when ordered to be searched as a suspect carrying some offensive weapon, seized the earpiece of the patrol commander's radio set and made off in an attempt to escape. If I had been the patrol commander to whom that had happened I would have expected my soldiers to take some fairly vigorous action. Having studied the evidence to an extent I believe that what these soldiers did they were perfectly entitled to do. Indeed, were I the patrol commander I would have expected them to do it.

I understand that there was no way in which a lesser charge could have been brought. If any charge was to be brought it had to be murder. There was no way in which they could be tried for manslaughter, culpable homicide or any other offence. But one wonders whether they should have been prosecuted at all. I believe that in the light of the evidence the prosecution was unwise, unsafe and unsound.

I make one other point which may not be entirely relevant but is always in the back of my mind. I refer to the message that this kind of prosecution sends to soldiers and others who have to act in aid of the civil power and, having done what they consider to be their duty, are not criticised, reprimanded or punished under army regulations but are charged with murder and sent to prison for life. I believe that we should be asking ourselves some very serious questions in respect of that matter.

I conclude, as have other noble Lords, by saying that it is long past the time when these two young men should be released from prison. We do not want ponderous reviews or any lengthy reconsideration of the matter. If these two men are still in prison when terrorists under the peace process or the great agreement are released, ordinary, intelligent, decent people in this country will find it very difficult to understand. If the Secretary of State cannot or will not act now to secure the immediate release of these young men, perhaps the Motion of the noble Lord, Lord Campbell of Alloway, is the only way to do it. I strongly support the Motion.

8.3 p.m.

Lord Westbury

My Lords, I thank my noble friend Lord Campbell of Alloway for tabling this Motion. I declare my interest as a Scots Guard who has been concerned with this situation for a number of years and has taken part in Written and Oral Questions and debates on this subject. On 23rd June 1998 the House concluded on the basis of affidavits and documents that the finding of culpability was fundamentally flawed. My noble friend Lord Campbell of Alloway has referred to the evidence that Lance Sergeant Swift would have given, confirmed in various respects by Guardsman Williams, who was the fourth man in the patrol, and Company Sergeant Major Dunn, the platoon sergeant.

Since 23rd June affidavits from Guardsman Williams and Company Sergeant Major Dunn have been placed in the Library. They show the salient aspects of that confirmation. I apologise for being long-winded but I believe that it is relevant to read the affidavit of Guardsman Williams: After we had been patrolling for about two and a half hours Lance Sergeant Swift told us that the Celtic Club search was over and all they found was one CB radio. We were then directed to proceed north east up Spamount Street to 'satellite' and give cover for another search at Templar House. We patrolled back up Spamount Street in normal operational order, staggered with two on each pavement, and as we got to the bottom of Trainfield Street I saw Lance Sergeant Swift run forward very quickly to intercept a youth coming down Trainfield Street from New Lodge Road where Templar House was located, and the three of us took up protective positions. I was on the corner of Trainfield Street and Spamount Street. There was a low fence on top of a brick wall and I squatted down by this to give cover principally the way we had come. Meanwhile Guardsman Fisher took up a kneeling position in Spamount Street behind me looking forward to cover Lance Sergeant Swift and the suspect and Guardsman Wright [were] on the far side of Spamount Street looking the opposite way to me. We were probably 15 to 20 yards apart. I heard Lance Sergeant Swift go up to the suspect to check his personal details. This was standard (name, address, age, where he had come from and where he was going). I could not hear the suspect's answer but I did hear Lance Sergeant Swift trying to make contact with Company Headquarters, but he could get no reply. I could see a little out of the corner of my eye and I am definite that the suspect was NEVER searched. He was only with the lance sergeant for just over one minute and there would not have been time to do a body search … I should also state quite clearly that there was nobody in Spamount Street anywhere near its junction with Trainfield Street. There were definitely NOT two men mending a car with its bonnet up, and indeed there was nobody out in the streets at all. I then heard Lance Sergeant Swift shout 'Grab him' and I could see the earpiece had been pulled off his head. I then saw the suspect jump over into the garden at the corner of Trainfield Street and Spamount Street. He jumped both garden fences and as he did so I saw a white plastic bag in his right hand tightly rolled round a cylindrical-shaped object. It would be about 10 to 12 inches long and four to five inches in diameter. I naturally thought it must be a coffee jar bomb. Guardsman Fisher nearly grabbed him but he managed to run very fast with the white bag still in his right hand and we all set off in pursuit. Both Guardsmen Fisher and Wright who were leading shouted 'Army, halt or I fire', but he turned quickly left into Glenrosa Street when they both gave him another challenge. I also shouted 'Army, halt or I fire', or words to that effect. He ignored these challenges and turned right down Upper Meadow Street. We had all our weapons, equipment and body armour and I felt we were not going to catch him. When he was about two-thirds of the way down Upper Meadow Street on the left where I believe there was a blue car parked, I heard Guardsman Fisher give a third challenge and when the suspect did not stop he fired one shot which appeared to miss. Guardsman Fisher fired standing and he was on the right hand side of the road. Guardsman Wright was two to three yards behind him on the left side. I was behind Guardsman Fisher and Lance Sergeant Swift was behind me, still trying to make radio contact as we ran into Upper Meadow Street. Shortly after that Wright got down into the kneeling position and tired two shots. Almost immediately Guardsman Fisher fired another two shots and the suspect staggered by the car … Immediately after the shooting, doors started opening and a lot of people came into the street but we had seen nobody outside during the chase". As to the affidavit of Company Sergeant Major Dunn: I was platoon sergeant of these two soldiers and the rest of their patrol of four men with Lance Sergeant Swift in command and Guardsman Williams. It was very quiet with a few local people moving about the streets. They obviously observed the patrols and stayed inside. On no account would two or three members of a team crowd round a suspect as they would present easy, static, targets, and would not be giving proper cover. At about 10.30 hours we heard shots from a northerly direction and we proceeded in the direction of the shots as far as we could. The whole patrol got there as a group in about three or four minutes. When we got there I saw Sergeant Swift who said there had been a shooting. I understand that Guardsmen Fisher and Wright had shot at a suspect who had assaulted him [Lance Sergeant Swift] and who they thought was carrying a bomb, and who had refused to stop after repeated warnings. I, and other patrols, stayed in the area and helped to put up a cordon but before this an ambulance arrived to take the wounded suspect to hospital. I would like to emphasise that the area in which the incident took place was extremely hostile and dangerous for any patrols and the longer a patrol stayed in one area the more likely were the Provisional IRA to set up an opportunity for sniping or bombing. I was amazed to learn that the two soldiers were found guilty of murder two years later when they were only doing their duty in accordance with their training. I knew them both well and they were first class soldiers, of good character and experienced in anti-terrorist drills and tactics. Lance Sergeant Swift was a reliable patrol commander on his fourth tour of duty in Northern Ireland". They have been in custody since 4th September 1992. They have served the equivalent of a nine-year determinate sentence. The opinion of your Lordships' House, as expressed on 23rd June and 16th July, is that they should be released immediately. The Motion should be carried so that a representation to this effect should be sent to the Secretary of State for consideration on the current review.

8.12 p.m.

The Earl of Carlisle

My Lords, I too thank the noble Lord, Lord Campbell of Alloway, for raising yet again the case of the two unfortunate Scots Guardsmen who have been languishing in gaol for over five years.

It is a privilege to follow the noble Lord, Lord Westbury, who, among others, has worked tirelessly both inside and outside your Lordships' House to obtain redress and release for the two unfortunate guardsmen who, through a tragic error of judgment, found themselves convicted of murder by due process of law and received mandatory sentences of life imprisonment.

I am sure that all noble Lords in this House, including noble and gallant Lords who have had the privilege to wear the uniform of the King in war or peace, or of the Queen in war, peace or counter-insurgency operations, will agree with me that on exercise or on operations we have all made errors of judgment but fortunately for most of us, more by luck than any other reason, we who served in Northern Ireland did not end in gaol.

I had the privilege after serving in Northern Ireland of serving with the British Army of the Rhine when General Sir Michael Gow was the Commander-in-Chief. He is a most distinguished infantryman. He is quoted as saying that in a similar situation to that faced by the two Scots Guardsmen he would probably have done exactly the same. So would I.

I rise to support the Motion of the noble Lord, Lord Campbell of Alloway, that an Humble Address be presented. As far back as 20th April of this year I asked a supplementary oral question to the one put by the noble Lord, Lord Burnham. I asked the Minister of State, the Minister who is in his place today, if he would consider putting the case to the Sovereign so that Her Majesty could exercise Her prerogative of mercy.

The Minister replied that the Life Sentence Review Board procedure and the sentence review body would be running in parallel and that in the circumstances he did not think it would be appropriate to refer the case elsewhere. I did not agree with him then and I shall not agree with him if at the end of this debate he cannot agree to endorsing a mechanism which would speed up the date of the release, the Life Sentence Review Board being too slow.

My view is further reinforced by a statement from the Northern Ireland Office dated 6th July 1998. The Secretary of State stated in another place that she had received the papers and would be considering those papers "during the next few weeks". How many weeks? We are entitled to know, as indeed are the guardsmen.

Secondly, the papers which have to be considered are extensive. I recall my service at various headquarters, in particular the Northern Ireland headquarters, where the staff were often directed by the Commander, Land Forces, to produce a brief, a paper or information for the Northern Ireland Office within 24 hours, or, indeed, within 24 minutes or even two-and-a-half minutes. Woe betide the staff office if that work was not produced on time. Why the delay in this case? Does not the noble Lord agree with me that this new review by the Secretary of State smacks of prevarication? Why is that the case?

The second avenue of approach is the sentence review body. As every schoolboy knows, this is a mechanism for granting convicted terrorists early release. This is an entirely inappropriate method for the release from gaol of the two Scots Guardsmen. First, they are not terrorists. Secondly, they never were terrorists. Thirdly, they were sent to Northern Ireland by the state—by previous Secretaries of State for Defence and for Northern Ireland—to keep the peace, to prevent terrorism and to apprehend or, indeed, kill terrorists.

I turn to the prerogative of mercy. I have been much influenced by the paper by Christopher Vincenzi, Crown Powers, Subjects and Citizens. He states that crimes may be pardoned absolutely or conditionally. He draws the distinction between the free pardon, which wipes out not only the sentence but the conviction, commutation of the sentence, and, finally, remission, which is reduction of a sentence or penalty without changing its character. Between 1990 and 1993 there were 88 free pardons. During the same years there were 250 remissions of sentence. Surely the two guardsmen are deserving of the prerogative of mercy?

I shall conclude on this point. Last week on the West Front of Westminster Abbey 10 statues were unveiled to 10 Christian martyrs who died for their faith this century. Over the past quarter of a century over 3,000 people—3,000 too many—have died in Northern Ireland or, as I prefer to call it, been murdered; some—the vast majority I suggest—because either they were in the wrong place at the wrong time or they died for their faith. Although these statues are prominent, less attention is given to four statues below the 10 Christian martyrs. They represent the four cardinal virtues: truth, justice, peace and mercy.

I suggest that truth, in the matter of this tragic incident, will never be readily available or complete, as the evidence is incomplete. Justice was done, I hope, but it was very harsh. Peace may come to Northern Ireland, we all hope that. And finally, mercy: it is time—it is long overdue—to show mercy to these two guardsmen. That is the reason why I support the Motion before your Lordships' House.

8.18 p.m.

Earl Attlee

My Lords, I apologise to the House for missing the first few minutes of this debate. I also remind the House that I have an interest. I notice, yet again, that we have a defence Minister, Lord Gilbert, in his place on the Front Bench. We are, indeed, grateful for his interest.

I have spoken on this matter before and I declare that I am broadly content with the Motion, but I believe that my noble friend Lord Tebbit may have a superior amendment or lever to pull later.

Lord Tebbit

My Lords, I am grateful to my noble friend for giving way. I doubt whether my device will be superior; I think that it may be more effective; and it will undoubtedly be triggered on Wednesday.

Earl Attlee

My Lords, I thank my noble friend for that intervention.

I agree with every word that I have heard this evening. I should like to draw the Minister's attention to a possible condition that the Secretary of State may decide to impose on any licence given. As Guardsmen Fisher and Wright are serving soldiers, it would be possible to remit them to the charge of their commanding officer. They would then effectively be confined to barracks. That would obviously be a temporary measure. It would of course make the Secretary of State's decision easier and less risky and therefore more speedy. I hope that the Minister will draw that possibility to the attention of his right honourable friend the Secretary of State.

8.20 p.m.

Lord Thomas of Gresford

My Lords, there is a long and ancient history which supports the presentation of an Address to Her Majesty on every matter of foreign and domestic policy, including the administration of justice. We support fully the presentation of such an Address in this exceptional case. It is a step forward that the Government have indicated to the noble Lord, Lord Campbell of Alloway, that they do not intend to oppose his Motion.

The Monarch swears in the Coronation Oath that justice in this country shall be "administered in mercy". Sir William Blackstone, the great legal historian, traced the history of the royal pardon to the laws of Edward the Confessor. He said: the royal prerogative of mercy … is part of the power of the Sovereign of his pure grace to show mercy to an offender by mitigating or removing the consequences of conviction". It is important to understand that a pardon does not necessarily remove the conviction itself. We have an adversarial process in this country which is designed to examine the evidence, but only the evidence which is put before the court: our processes are not concerned with the unfettered pursuit of the truth. In this case I have already commented on the fact that the trial judge could act only on the evidence placed before him. Judges have the power to call witnesses themselves, but it is rarely exercised. Here, the prosecution chose to rely upon the evidence of three bystander witnesses on the vital question as to whether the sergeant searched McBride. Their account at the trial differed in significant ways from their original statements to the police. Neither Swift, nor Williams, who was with him, was called to give evidence for the prosecution. The defence cannot be criticised for refusing to put their clients' interests at risk by calling them themselves.

The conviction then went on appeal, but the Court of Appeal has a limited function: it is only to supervise the operation of the lower courts and to correct their mistakes. It is not to hold a re-hearing of the facts which the tribunal of fact—here the judge alone—has decided. In this country the principle that the verdict of a jury is virtually sacrosanct prevails. It is less obvious that that principle—the findings of fact by a single judge in a Diplock court—should apply to those decisions.

A jury, from time to time, will acquit where justice demands. It may acquit in the teeth of the evidence. The Clive Ponting case is an example where a jury acquitted even though directed by the trial judge to convict. A jury may also convict when to the professional eye there is inadequate evidence, but almost invariably the instinct and common sense of the jury are correct. A judge who sits alone is trained professionally to analyse and sift the evidence that is put before him. His instinct is ruled out. If mistakes may happen in jury trials—we know that they do—how much more likely are they to occur in a Diplock court under the adversarial system?

The prerogative of mercy recognises that the judicial process is fallible and that the evidence before the court does not necessarily give rise to the right decision. The prerogative has different uses: to be merciful—for example, a free pardon to someone who is terminally ill; to substitute one form of punishment for another—for example, the commutation of a death sentence to life imprisonment; but, importantly and thirdly, to recognise that the public interest may no longer be furthered by having an offender serve the full penalty imposed. That may be because of doubts that arise subsequent to a trial about the soundness of the conviction.

Lord Justice Watkins, when he was considering the Bentley case—which is back today before the Court of Appeal—in 1994 (QB at 365) said: The prerogative is a flexible power and its exercise should be adapted to meet the circumstances of the particular case. We would adopt the language of the Court of Appeal in New Zealand….'the prerogative of mercy can no longer be regarded as no more than an arbitrary monarchial right of grace and favour'. It is now a constitutional safeguard against mistakes". Here, the Address is aimed not necessarily at a free pardon: Her Majesty is asked to exercise the prerogative of mercy: to release Guardsmen Fisher and Wright from mandatory life imprisonment in exceptional circumstances". It is to ask for a remission of their sentence. The noble and gallant Lord, Lord Bramall, inquired as to the constitutional position. The exercise of the prerogative has, by convention, rested with the Secretary of State since the accession of Queen Victoria in 1837 because, as Fenton Bresler once put it, she was regarded as both too young and of the wrong sex to preside over a "hanging" cabinet.

Perhaps I may therefore draw the Secretary of State's attention to the George Davis case in 1976 when, as noble Lords will remember, a long public campaign went on. The then Home Secretary, my noble friend Lord Jenkins of Hillhead, as he now is, decisively exercised the power of prerogative. He said: I do not have evidence of Mr. Davis' innocence to justify my recommending a free pardon. I have considered whether I should refer the case to the Court of Appeal … But this would be a lengthy process and it is not at present clear that all the relevant material now before me could be considered by the court. My conclusions about the shift in the balance of evidence in the case are such that it would not be right for Mr. Davis to remain in prison any longer. I have therefore decided to recommend the exercise of the Royal Prerogative to remit the remainder of Mr. Davis' sentence. He is being released today". When later questioned about whether that created a precedent he said: I always look extremely carefully at all individual cases … I am sure my hon. Friend and the House will appreciate, it is important that one should proceed in these matters with expedition and decisiveness when one is convinced that it is right to do so. One should not get in to the position of not being able to do what is right in a particular case because to do so would mean having to act in the same manner in a number of cases which may be far less strong".— [Official Report, Commons, 11/5/76; cols. 230–33.] So the question of precedent is not something that should hold back the Secretary of State.

There is an overwhelming case for saying that the full truth did not come out at this trial due to the selectivity of witnesses called by the prosecution. But, irrespective of that, it is manifestly unjust that those two guardsmen should remain any longer in prison.

Much concern is exercised for the sensitivities of the Protestant and Catholic communities in Northern Ireland. They are to get—perhaps rather more quickly than public opinion in England, Wales and Scotland might allow—their unique and novel machinery for remission. The basic sense of justice and fair play which moves the people on this side of the water should equally move the Secretary of State to release these men, not, as the noble Lord, Lord Chalfont, said, after ponderous review but tomorrow.

8.30 p.m.

Lord Kingsland

My Lords, in this harrowing matter it is important to keep distinct two issues: the safety of the conviction and the speed of release. The affidavits have revealed incompatibilities and inconsistencies in the evidence; and your Lordships have referred to many of those today. These matters are now before the Criminal Cases Review Commission, and in time it will report to the Court of Appeal. Unfortunately, until its report reaches the Court of Appeal there will be no opportunity of bail for the guardsmen. If they are to be released now, we have to consider other mechanisms, one of which is before your Lordships' House this evening; the Royal Prerogative of Mercy.

However, there are three other mechanisms. One is the Northern Ireland (Sentences) Bill which is due to come on to the statute book at the end of this month. I understand from the noble Lord, Lord Dubs, that releases are expected from the beginning of September.

Of the two other mechanisms, one is the general power of the Secretary of State, after consultation with the trial court and the Lord Chief Justice, to release those who have been convicted of a life sentence. Finally, there is the regular reporting of the Life Sentences Review Board. So we have four ways in which release can be manifested now. Each one of those is a decision for the Secretary of State for Northern Ireland.

What has the noble Lord, Lord Dubs, said about the way in which the Secretary of State is confronting that decision? It is revealed in the debates of 6th and 16th July. We understand that the Secretary of State is not confining herself to any one of those procedures but is looking at substantive matters which underlie all four: the court decision; the affidavits; the decision of the review body; listening to what your Lordships have said; and considering wider issues as well.

In the debate on 16th July, the noble Lord, Lord Dubs, said that he expected the Secretary of State to complete her consideration by the end of August. In the Opposition's submission, the end of August is far too close to the beginning of September when the first releases are expected under the Northern Ireland (Sentences) Bill.

Let us consider the dilemma that those guardsmen faced—a dilemma which is not new to British servicemen. It is a tightrope. If one disobeyed orders, not so long ago one could be shot. If one pulled the trigger in the wrong circumstances one could be hanged. Fortunately, the consequences of getting it wrong are not so drastic as they used to be; but the dilemma is exactly the same.

Let us contrast that with the dilemma—if that is the right word—of the terrorist. The two situations are not morally on the same plane. In Her Majesty's Loyal Opposition's opinion, it would be wholly wrong for the Government to intermingle the release of these men with the releases we expect of former terrorists at the beginning of September.

Noble Lords

Hear, hear!

Lord Kingsland

My Lords, the test of the Government's moral authority is this. Release the guardsmen now or your moral equivocation will be plain for all to see.

8.32 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs)

My Lords, I should like to add my voice to those of the other noble Lords in complimenting the noble Lord, Lord Campbell of Alloway, on securing this further debate on the cases of Guardsmen Fisher and Wright.

I also acknowledge the assiduous efforts that the noble Lord continues to make on behalf of these two men. He has spoken with great feeling, but has not allowed this to cloud his judgment and has argued in measured and considered terms. I congratulate him on that.

I have listened carefully to all that has been said, and I thank other noble Lords who have contributed their views. They too have spoken with great strength of feeling because of the seriousness with which they regard the issue.

Perhaps I may deal with a number of specific questions before I turn to the brunt of the argument I wish to put forward. The noble Lord, Lord Vivian, asked what evidence was produced in court, a question implicitly asked by other noble Lords. He also asked some details about the prosecution case. The decision whether to prosecute is a matter for the Director of Public Prosecutions on the basis of the evidence available. It would be inappropriate for a Member of the Government to pass any comment on the judgment that the Director of Public Prosecutions entered into and the method by which the case was conducted. It is not a matter for the Government.

The noble Earl, Lord Carlisle, asked about the length of time of the Secretary of State's review, to which, by implication the noble Lord, Lord Kingsland, also referred. There is no prevarication. Indeed, as I made clear in the Statement to this House on, I believe, 6th July, on behalf of the Secretary of State, she indicated that she was speeding up her consideration of the case. The Secretary of State had previously suggested that she would wait until the October deadline, as indicated by her review last year of the case put forward by the Life Sentence Review Board. The Life Sentence Review Board was going to consider the matter again in October. But in the meantime the Secretary of State was going to advance her consideration of the case. That was the announcement I made. Given the complexity of the evidence, and given that the Secretary of State also has to refer the matter to the Lord Chief Justice and the judge who presided when the case was first heard, these matters take a little time. However, I assure noble Lords that there is no question of any prevarication on the part of the Secretary of State.

The noble Lord, Lord Kingsland, suggested, as did other noble Lords, that it would be wrong for the Secretary of State to make a decision at about the same time of the first releases under the Northern Ireland (Sentences) Bill, assuming that Parliament agrees to pass the Bill. I was not suggesting that there was a relationship between the two decisions. I was answering questions about the likely timetable as regards the Secretary of State's consideration of the case of the two guardsmen; and the timetable as regards the sentences review board commissioners' releases.

This House has debated the matter on a number of occasions. On the first or second occasion I was asked whether the fact that there was to be a Northern Ireland (Sentences) Bill about early release would delay any decision about the two guardsmen. At that point I indicated that the guardsmen would have the right under the sentences Bill procedure to apply for their case to be considered. I was not suggesting that there was any comparison between their situation and that of terrorists. I was simply answering a question.

In subsequent debates I was again asked about the different procedures open to the guardsmen. There is no sense in which the Government are saying that there is a parallel between the two guardsmen and what will happen to terrorists under the Northern Ireland (Sentences) Bill. I seek to make that distinction because the noble Lord, Lord Kingsland, suggested that there was some overlap in the Government's mind. There is clearly no overlap, but the timetables relate to the situations that I have described. If they happen to overlap within a month of each other, it is because the Secretary of State does not wish to delay her process; and under the sentences Bill the commissioners will also have to make their decisions as regards their priorities and timetable.

Perhaps I may return to the substance of the debate. The Motion set down by the noble Lord, Lord Campbell of Alloway, moves, That an Humble Address be presented to Her Majesty praying that Her Majesty should exercise the Prerogative of Mercy to release Guardsmen Fisher and Wright from mandatory life imprisonment in exceptional circumstances as other available mechanisms would unduly delay their release". I am grateful to the noble Lord, Lord Thomas of Gresford, for his clear exposition of the history of this prerogative and the circumstances in which it has been used.

Perhaps I may say at the outset, that I do not intend to oppose the Motion presently before this House. However, for reasons which the House will readily understand, I and other Ministers shall abstain in the unlikely event that the issue comes to a Division. There are, however, some points which I should like to bring to your Lordships' attention.

The exercise of mercy by the Crown dates from the Middle Ages. Until the 18th century, the issue remained a matter for the personal decision of the Sovereign. By the mid-19th century, however, the convention had developed that the prerogative would be exercised on the advice of one of Her Majesty's principal Secretaries of State. Such advice must, of course, be provided with the greatest conscience and good care.

The prerogative is used in respect of criminal convictions and generally only where it is impractical to refer the case to an appellate court, and where there is new evidence which has not been before the courts and which demonstrates conclusively that no offence was committed, or that the defendant did not commit the crime. I have in mind, for example, a case in which there is new hearsay evidence which is absolutely compelling, but which would be inadmissible in court.

Turning to the specific question of the possible exercise of the Royal Prerogative of Mercy in the cases of Guardsmen Fisher and Wright, I would stress that very full rights exist for an individual aggrieved by his conviction, or sentence after trial on indictment. The right, however, to petition for the exercise of the Royal Prerogative of Mercy is in addition to the normal right of appeal to a superior court and the fact that a person has not exercised his right of appeal is no bar to the consideration of a petition.

The Royal Prerogative of Mercy is not, however, a means of duplicating the ordinary machinery of appeal and save in genuinely exceptional circumstances the Secretary of State for Northern Ireland, and indeed the Home Secretary for cases within his jurisdiction, would normally expect a prisoner to use that machinery to the full.

The special circumstances in which it may be appropriate to entertain exceptionally an application for the exercise of the Royal Prerogative of Mercy, notwithstanding that some avenue of appeal may still be open to the applicant, are not to be determined by a rigid rule; each case must be considered on its own merits.

Lord Renwick of Clifton

My Lords, I am grateful to my noble friend for giving way. We are united in all parts of this House in wanting to see the earliest possible release of these Guardsmen. However, when the Address, which I and almost everyone else supports, is presented to Her Majesty, as the Minister and others have said, she will seek the advice of the Secretary of State who is conducting her own review of the matter.

In passing on to the Secretary of State the apparently unanimous view of Members of this House, will the Minister point out that this House contains many distinguished jurists and, so far as I am aware, not one has risen to defend the continued imprisonment of these Guardsmen?

Lord Dubs

My Lords, I thank my noble friend for what he has said. I shall ensure that the attention of the Secretary of State is drawn to the whole debate; to all the points that have been made; and to the fact that many noble Lords have a great deal of legal knowledge and experience and many have direct experience of serving in the Army on the streets of Northern Ireland. I shall ensure that the Secretary of State is aware of the body of knowledge and experience that has been brought to bear and the views that have been expressed.

I return to the argument. In the guardsmen's cases most, but not all, of the domestic avenues of appeal have been exhausted. The guardsmen's application for leave to appeal to the House of Lords was refused on 6th March 1996. There still remains open to them, however, the ability to make an application to the Criminal Cases Review Commission, to which I have already referred in the debate in this House on 23rd June. This, of course, is a matter for the guardsmen to consider in consultation with their legal advisers.

As your Lordships' House will be aware, the Royal Prerogative of Mercy is generally exercised by the Sovereign in certain ways only: first, the grant of a free pardon, (that is, an unconditional pardon); secondly, the grant of a conditional pardon, whereby the penalty is removed, on condition that a lesser sentence, or penalty, is substituted; and, thirdly, the remission, or partial remission, of a penalty.

Given all that the noble Lords have said tonight, I assume that the noble Lord's petition seeks exercise of the Royal Prerogative in the last mentioned form, as a means of securing the guardsmen's release from prison, in the hope that an application to the Criminal Cases Review Commission will secure through the courts the quashing of their convictions.

As I have advised noble Lords in previous debates on these cases, the position from which my right honourable friend the Secretary of State for Northern Ireland and I must approach these cases is that the guardsmen have been convicted of murder in accordance with the law.

These convictions arose from an incident while the guardsmen were on patrol in Belfast. The incident was carefully and thoroughly considered by the prosecuting authorities and then independently adjudicated upon by the courts. The courts held that the guardsmen had no lawful justification for firing at Peter McBride. I appreciate that many noble Lords have elaborated on the evidence and on the further evidence that has come to light as a result of the efforts of the noble Lord, Lord Campbell of Alloway. Therefore, I appreciate that there are views which go further than the decisions of the court.

The Motion before us this evening states that "other available mechanisms would unduly delay" the release of the guardsmen. However, I must, with all due respect to this House, point out that at present there are several possible avenues open to these particular prisoners through which release is a possibility. In respect of matters which fall to my right honourable friend the Secretary of State, no decision has been made but, as I informed this House last Thursday, my right honourable friend would hope to announce her decision in the latter part of August.

For the benefit of the House, I will set out the various avenues by which the cases of the guardsmen can, or will, be considered for possible release in the weeks and months ahead. I cannot of course prejudge the outcome of any or all of these possible avenues, nor should anything that I say be seen in any way to prejudice any of those possible outcomes. These avenues fall into two categories. I appreciate that some noble Lords have mentioned them, but it is right that the Government's attitude to them should be made clear.

Those in the first category are already active. They are the current consideration of the guardsmen's cases by the Secretary of State in light of correspondence from their solicitors, and the consideration of their cases by the Life Sentence Review Board in October this year.

My right honourable friend's consideration, as I have already indicated, will take a few weeks in view of the need to ensure a careful and thorough consideration of the considerable volume of paperwork involved in the cases.

With regard to the Life Sentence Review Board, preparation of the fresh reports required for the board's second consideration of the cases commenced. The guardsmen have been advised of this in writing. They, and their legal advisors, will be invited to make representations.

The second category of procedures available to the guardsmen are applications to the proposed sentence review commission, and applications to the Criminal Cases Review Commission, subject to discussion with their legal advisors. The timing surrounding the sentence review commission is subject to the wishes of Parliament, and subsequently a matter for consideration by the proposed commission in light of an application from the guardsmen.

In summary, therefore, two means of obtaining the guardsmen's release from custody are already under active consideration. Of the other two means, one is already available and the second will shortly become so, should the guardsmen choose to take the opportunity to make representations.

Lord Tebbit

My Lords, I am grateful to the Minister for giving way. Which powers did the Secretary of State use when she released IRA terrorists to campaign for a "yes" vote in the referendum?

Lord Dubs

My Lords, my understanding is that they were not released permanently. Those were temporary release powers which she already has. In one case, release was on compassionate grounds; in other cases it was for the specific reasons to which the noble Lord has referred.

I have listened carefully to the views that have been expressed and I sense the opinion of this House. I am fully aware of the strong and sincere feelings which have been expressed. I shall ensure that the Secretary of State is made fully aware of the whole debate and the feelings that have been expressed. As I indicated, the Government do not intend to oppose the Motion.

8.47 p.m.

Lord Campbell of Alloway

My Lords, I shall be brief. I must be allowed to thank all noble Lords who have spoken in the debate, and in particular the noble Lord, Lord Dubs, for his humane and sensitive handling of this truly unfortunate affair. No noble Lord has spoken in opposition to the Motion. With the leave of the House, it is not profitable to discuss for the third time today the amendment of my noble friend Lord Tebbit; I should prefer to deal with it on Wednesday if it were tabled again.

I seek the common sense, composite wisdom of your Lordships' House which reposes with the Cross-Benchers and the Back-Benchers. I commend acceptance of the Motion.

On Question, Motion agreed to; and it was ordered that the Address be presented to Her Majesty by the Lords with White Staves.