Guardsmen Fisher and Wright

HL Deb 23 June 1998 vol 591 cc216-36

7.38 p.m.

Lord Campbell of Alloway rose to ask Her Majesty's Government when Guardsmen Fisher and Wright can expect release from life imprisonment.

The noble Lord said: My Lords, I thank all noble Lords who have put down their names to speak. In particular, I thank the Government Chief Whip for his tremendous help, even at this late stage, to enable us to do justice to a serious problem which concerns us all.

The expectation of release remains as deferred until well beyond six years spent in custody. The Secretary of State, on reasoned analysis of the findings of the trial judge, has so decided and, for my part, that decision is not called in question because the trial judge found that there was no possible justification for either of the accused to have opened fire as they knew that they were not exposed to any appreciable degree of danger and that the man they shot was unarmed. Both Secretaries of State—fortunately one is present—were entitled to rely on those findings which inevitably slighted release: and are not open to criticism for having done so.

But the purpose of this Question is to challenge the rectitude of such findings on material deposed to on affidavits handed to the noble Lord, Lord Dubs, and placed in the Library; and so to seek immediate release pending judicial resolution as an exercise of ministerial discretion—a delegation of the Royal Prerogative—as acknowledged by Section 23 of the Northern Ireland Prisons Act. That is an exercise of discretion on which immediate release is not to be inhibited by treating these cases as scheduled for accelerated release or by "comparable culpability" which in this context does not arise.

The merits of that argument (grounded on those affidavits) have not as yet been considered by either Secretary of State (in context with release) or judicially (in context with conviction) because Lance Sergeant Swift, in charge of this four-man foot patrol, and Guardsman Williams, the fourth man (whose evidence would have been in stark contradiction to those findings of the judge to which I have referred) were not called to testify at the trial.

These affidavits were sworn by the lance sergeant in amplification of his recorded interview by the RUC on 10th September; the colonel then in charge of the 1st Battalion of the Scots Guards; the company commander; and the search training officer of the battalion. The recorded interrogation of Williams by the RUC on 9th December 1992 is also included. They are all in the Library.

On 4th September, after the shooting these men returned to Girdwood barracks and were questioned by the colonel, who saw them with the company commander before they were arrested by the RUC and taken to the North Queen Street station, where they were questioned on 4th and 5th September. On 5th September there was a protest demonstration of about 500 who had gathered around the station. On the afternoon of that day the RUC charged them with murder. In Northern Ireland when British soldiers on duty have killed a civilian, the charge of manslaughter is not available.

When seen by the colonel and the company commander, according to the colonel's affidavit, these guardsmen were shocked and they said that they believed their lives, the lives of the patrol and of others were at risk, and that they acted in good faith in accordance with their terms of engagement. The colonel also deposed that these men indeed did act in accordance with the terms of engagement as armed soldiers on the streets of Northern Ireland, and under his command were in danger 24 hours a day, seven days a week.

The evidence deposed shows that the findings of fact to support this conviction were fundamentally flawed; that these men did no less, and assuredly no more, than their ordained duty according to training; and that their convictions were a grave and manifest injustice.

The Crown contended in opening that the defence was "dishonest and concocted". The judge rejected the evidence of Fisher and Wright in favour of that of three residents in the New Lodge area, an area hostile to these patrols in which there was a high risk of terrorist activity, and where doors were kept open as an escape route: and in recent weeks such patrols had come under persistent attack from coffee-jar bombs—an improvised grenade, as some of your Lordships will know, which contains Semtex, shrapnel and a detonator and has a killing radius of 30 metres.

The defective structure for inevitable conviction (based on the evidence of the residents) was erected upon five flawed pillars of fact; a structure which could never have been assembled if the lance sergeant and Williams had been called in evidence (and believed on their oath). For the lance sergeant would have said that he never searched McBride; that when McBride made a dash for it he did not shout, "Don't shoot"; and that he had every reason to believe that McBride was armed with a coffee-jar bomb; that he, Fisher, Wright and Williams thought that they were exposed to the danger of a "come on" ambush in which a coffee jar bomb would be used; and that as McBride had disregarded three yellow card warnings, there was every justification under the rules of engagement to open fire. Various aspects of his evidence would have been confirmed by Williams, and are confirmed by the affidavits in the Library.

The lance sergeant would have said that 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. Then 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", as confirmed by Williams. The area was deserted. There was no one about until after the shooting.

7.57 p.m.

Lord Bramall

My Lords, apart from expressing my gratitude to the noble Lord, Lord Campbell of Alloway, for raising the issue, I want to make only two points. First, among all the encouraging gleams of hope emanating from Northern Ireland, on which—and on her determination and perseverance—I warmly congratulate the right honourable Secretary of State for Northern Ireland, the time has surely come to spare a thought, in practical and understanding terms, for those men and women of Her Majesty's Forces who have borne the heat and burden of the day in internal security for close on 30 years and have done their duty as they saw it under conditions of considerable tension and stress.

Secondly, I have always fervently believed—I may say I have had considerable encouragement and support for this view from very senior members of the legal profession—that if a soldier goes out on duty, when called in to aid the civil power, with absolutely no malice aforethought, and may possibly and tragically make a split second error of judgment under very great pressure, he should at the end of the day serve a sentence no greater than that commensurate with unlawful killing and manslaughter rather than with the appalling crime of murder.

I suggest that a split second error of judgment is all the more understandable because these men were operating in good faith in that grey area closely surrounding the yellow card rules of engagement. When these points are taken together, there should be no question but that the two guardsmen, Fisher and Wright, who have now served that sort of punishment and paid that sort of price, should be released forthwith. Under the circumstances prevailing in Northern Ireland, in which immense tolerance is being shown to terrorists serving multiple life sentences, that is the very least that the Secretary of State, who has the power, can do.

8 p.m.

Lord Vivian

My Lords, I served in Belfast in 1973–74, 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 McBride was killed. I am aware of the guardsmen's feelings and the pressures and strains that they were under. There is no time to go through the incident that happened that morning. In any event, my noble friend Lord Campbell has dealt with it in some detail.

I wish to put some questions to the Minister. Why were the following personnel not called to give evidence? First, the company commander, who would have issued the instructions to Sergeant Swift and the patrol that day. Why were Sergeants Swift and Williams, the two other members of the patrol, not called to give evidence? Why was Company Sergeant Major Goodall, a trained search adviser and an expert witness, who would have provided vital evidence, not called? He would have, or could have, said that the search of the house through which McBride had passed did not take place for approximately one hour after the shooting incident; that the cordon surrounding the RUC search was insecure; that people were coming and going all the time, and any one of them could have taken a coffee jar grenade and disposed of it; that the house search took a mere 17 minutes, when in Goodall's expert opinion a proper search would have taken some two-and-a-half hours. I agree with that; I, too, was trained in house searches. Why did the RUC not carry out their duties on that particular occasion in their normal diligent and painstaking way? Is the Minister aware that Sergeant Swift was subjected to hostile questioning by the RUC on behalf of the prosecution in a military barracks at Windsor shortly before the trial?

I now turn to some matters raised by Sir Ludovic Kennedy. Why did the judge accept the evidence of three local Irish residents who said that McBride had been searched in preference to the guardsmen's denial that any search had been carried out? It is worth noting that one of those witnesses had 12 convictions for shoplifting, as well as others for receiving and handling stolen goods, disorderly behaviour and failing to surrender to bail.

If a search of McBride did take place, and he was unarmed, certain questions arise which the judge made no attempt to answer. Why, if McBride was unarmed, did he run away? Why did Sergeant Swift order the guardsmen to grab him? If McBride had nothing to hide, why did he not stop when Fisher and Wright told him that they would open fire if he did not?

Fisher and Wright acted as they did because they were convinced from what they saw that McBride was carrying a coffee jar bomb and might use it, putting their lives in immediate danger. Army rules of engagement are extremely strict and are normally gone through carefully before every patrol goes out. Those two guardsmen opened fire in accordance with Army regulations, because they realised that their lives were in immediate danger, in the belief that McBride was in possession of a lethal weapon which he might have used.

In conclusion, the Secretary of State can, at any time, if she thinks fit, release a person serving a term of imprisonment for life. Why does she not do so? The cases of these two guardsmen are to be remitted to the Secretary of State for further consideration. It can only be hoped that she will release the guardsmen immediately. 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? There has been a miscarriage of justice, and it must be put right immediately.

8.6 p.m.

Lord Chalfont

My Lords, I rise to support the noble Lord, Lord Campbell of Alloway. Like the noble Lord, Lord Vivian, and others in this House, I have been in the same position as these two young soldiers were in on 2nd September 1992—on patrol in a hostile environment under the immediate threat of urban terrorism. As other noble Lords have said, in those circumstances one has to make constant life and death decisions. They are not just split second decisions; they are more deliberate decisions based on experience and the kind of attacks that the regiment has endured.

In much of the debate about this matter there has been the dreadful fallacy of moral equivalence: the tendency to apply the same standards to terrorists on the one hand and to soldiers and policemen on the other. But they are not the same. When the terrorist goes out in the morning with his armalite, his grenade or coffee jar bomb, he sets out to kill or maim, not merely soldiers and policemen but often innocent civilians as well. In my experience, when a soldier puts on his equipment, he does not go out to kill. More often he goes out on dangerous duty with a determination if possible to avoid inflicting death upon other people. That is my experience of the British soldier in such circumstances. That is how they behave. They are required to carry out dangerous and complicated duties. These young men believed that they were doing that duty.

They might, as the noble and gallant Lord said, have made a mistake. I am not sure that I would go that far. When the man who was eventually killed pulled the earphone away from the patrol leader and ran, was that the action of an innocent man? Were the two soldiers of whom we are speaking supposed to regard that as an innocent and normal procedure? I think not.

But even if they made that mistake, they were on duty and under military discipline; and there are military disciplinary channels for dealing with that kind of mistake. What happened to these two young soldiers is that they were sentenced to prison for life. One of them has already spent a quarter of his life behind bars for doing what he believed to be his duty.

I am not one of those who will rush to blame or criticise the judge on this occasion. As the noble Lord, Lord Campbell of Alloway, said, there was not a possibility of a verdict of manslaughter being found in this case because it was not available; and the sentence was mandatory. I suppose it is possible to suggest that even judges can make mistakes, like soldiers sometimes do. But, whatever the reasoning, the facts and the legal arguments behind this case, I believe that there has been a very grave miscarriage of justice. It is important that this miscarriage of justice should be rectified at once.

It has been suggested—and I think there may be something in the suggestion—that the reasons why the Government are finding it difficult to bring about the release of these young men have a political content: that to release them might, to use the jargon of the day, send the wrong message; that it might in some way upset the peace process. If that is so, it is an outrage. To use the workaday jargon of the City of London, there should always be a Chinese wall between political calculation and the administration of justice. There is absolutely no excuse for keeping two young men behind bars because someone has judged that to release them may send the wrong political message. That is a total fallacy and an outrage.

I agree with the noble and gallant Lord, Lord Bramall, that we in this House should now call upon the Government to exercise ministerial discretion, which it is open to the Government to do. In my view, this is not just a question of the early release of these two young men. Someone said that they had already been in prison long enough. They have been in prison far too long. We should be calling not for their early release or a reconsideration of the circumstances but for their immediate release. As I said, it would be outrageous if this were not done for political reasons. What would be even worse, and what no civilised or intelligent person would understand, would be if terrorists convicted of murder—multiple murder in many cases—were released from prison in pursuit of a political process while these two young men remained in prison. That would be not just inconceivable but utterly outrageous.

8.12 p.m.

The Earl of Carlisle

My Lords, I thank the noble Lord, Lord Campbell of Alloway, for introducing this Unstarred Question. First, I should like to offer my sympathy to the family of the late Peter Paul McBride, the young man who died in this tragic incident on 4th September 1992. Secondly, I wish to offer my deepest sympathy to the families of Guardsman Fisher and Guardsman Wright, who, I understand, have behaved with classic dignity during their misfortune. Thirdly, I wish to offer my sincere best wishes to the two guardsmen in prison at the moment. Like the noble Lords, Lord Chalfont and Lord Vivian, I too had the privilege to serve in uniform in Northern Ireland and I say sincerely: "There, but for the grace of God, went I".

I understand that the law in Northern Ireland does not permit a court to impose a discretionary sentence on someone convicted of murder. Instead, it requires the court to impose a sentence of life imprisonment. It therefore falls to the Secretary of State for Northern Ireland to decide whether, and, if so, when, it is appropriate to release a life sentence prisoner on licence. I understand that the Secretary of State will listen to the advice given to the Life Sentence Review Board. That advice was given in October last year. I understand that on that board there are senior officials of the Northern Ireland Office, psychiatrists, psychologists and prison staff. I hope that the Minister can assure this House that, when examining the case of these two guardsmen, the senior officials from the Northern Ireland Office on the Life Sentence Review Board were not in any way influenced by the political situation at that time in Northern Ireland.

I further understand that, when the board considers that a prisoner has served long enough to meet the requirements of retribution and deterrence and is considered to be no longer a threat to the public, the board will recommend to the Secretary of State that the prisoner be released. Let us consider those three points.

Retribution, in Old Testament terms, means an eye for an eye and a tooth for a tooth, does it not? Five years in prison for those who have worn with pride the uniform of their nation is surely sufficient retribution for what was a tragic error committed in the course of most dangerous duty.

Deterrence means, I understand, preventing someone from carrying out a similar course of action in future. Does anyone in this House or elsewhere believe that these two servicemen will ever be in a position, or be put in a position, in which they will carry out the same action again? The answer must be no.

I know and admire the Ministry of Defence. I understand that in similar circumstances, where a soldier has accidentally killed, murdered or committed manslaughter against a civilian, that soldier does not carry arms in Northern Ireland again. I also understand that cases will be looked at on other occasions, especially when there is a significant material change in circumstances. Ministers in another place and noble Lords on the ministerial Benches have expressed the view that the situation has indeed changed dramatically for the better in Northern Ireland. I ask them to bear that in mind when they consider the cases of these two guardsmen languishing in gaol.

Having had the privilege to serve as a soldier in the Province in the 1970s, I sincerely believe that it is the wish—the demand—of people on the mainland and all people of good will in Northern Ireland, people I deeply admire, that these soldiers should be released from gaol, not forthwith, as the noble and gallant Lord, Lord Bramall, said, but with immediate effect.

We are shortly to hear the Constable of the Tower of London, the noble and gallant Lord, Lord Inge. He will know, as many of your Lordships know, that there are three important swords in the Tower of London. One is the Sword of State, which we see at the opening of Parliament every year. The second is the Sword of Justice. That has a sharp point, evidently demonstrated in the cases of Guardsman Wright and Guardsman Fisher. The third is Curtana, the Sword of Mercy. I hope that the Secretary of State will show mercy.

8.19 p.m.

Lord Ackner

My Lords, if any one of the following defects in our law had been removed before the shooting took place in this case, then these guardsmen would now be at liberty. The defects to which I refer are, first, that murder carries with it an automatic life sentence. Time and again in this House we have said that, because the circumstances giving rise to a murder vary infinitely, then the life sentence which should be available for the offence should be discretionary. Thus, the whole range of sentences would be the same for murder as for any other serious crime.

I had the privilege to be a member of your Lordships' Select Committee on Murder and Life Imprisonment when, in 1991, an amendment was tabled by the noble Lord, Lord Nathan—the chairman of the committee—to provide for the abolition of the mandatory life sentence. It was passed in this House with a majority of nearly 100. There were two former Lord Chancellors, the Lord Chief Justice, the Master of the Rolls and five Law Lords among those who voted in its favour.

The second defect is that the settling of the tariff and the decision on release is taken by a politician, in private, with no right of appeal. The Home Affairs Committee recently recommended that, it is wrong in principle for the Executive—that is, a politician—to have a role in decisions which effectively determine how long a person subject to a mandatory life sentence spends in prison; a role it does not have in discretionary life sentences". It is refreshing to observe that the noble and learned Lord, the Lord Chancellor, when in Opposition in 1989, said when the Select Committee's report was being debated: The point is that the duration of imprisonment should be decided by judges in an open process and not by the Executive behind closed doors, without even the authority of Parliament".—[Official Report, 6/11/89; col. 522.] That was his view as shadow Lord Chancellor. It was also substantially his view when he was asked a Starred Question on 24th June last. I had briefed him in advance of his previous statement, to which I made reference, and asked him in terms whether or not he still agreed with it. His answer was, The only difference between my position as expressed then and now is that today I have a keener awareness of the arguments on the other side".—[Official Report, 24/6/97; col. 1463.] Finally, under this heading, I refer to the observation made by the current Leader of the House, the noble Lord, Lord Richard, again in the debate on the 1991 Act to which I have made reference where he said, "To be blunt"—if one can imagine that ever occurring with the noble Lord— I believe that the public have an infinitely greater confidence in judges than in Ministers—of any government—to make decisions on the length of sentences".—[Official Report, 18/4/91; col. 1570.] The third deficiency is that it was not open to the judge to bring in a verdict of manslaughter. In that regard it is interesting to note that the Criminal Law Revision Committee, in its 14th report way back in 1980, made this recommendation: Where a person kills in a situation in which it is reasonable for some force to be used in self-defence or in the prevention of crime but the defendant uses excessive force, he should be liable to be convicted of manslaughter not murder if, at the time of the act, he honestly believed that the force he used was reasonable in the circumstances". That recommendation featured in the Law Commission's draft criminal code in 1979. The Select Committee to which I have already made reference recommended that the law be so changed. Significantly, in the Clegg case, both the Court of Appeal in Northern Ireland and your Lordships Appellate Committee, when the case came before it, made the same recommendation; in fact, the Appellate Committee wondered at the extent to which it could itself lay down that a verdict of manslaughter was open in that situation but decided that it needed legislation and was beyond its powers acting in a judicial capacity.

I understand that the guardsmen are entering their sixth year of imprisonment. That is equivalent, if one was dealing with a determinate sentence, to eight or nine years.

Baroness Farrington of Ribbleton

My Lords, with the greatest respect, the noble and learned Lord is trespassing on time allotted to others.

Lord Ackner

My Lords, I am trespassing by one minute and I intend to take one more minute.

Noble Lords

Hear, hear!

Baroness Farrington of Ribbleton

My Lords, I am fully aware of that, but I am afraid it is taking the time allotted to others. It is now two minutes over time.

Lord Ackner

My Lords, the noble Baroness overlooks the fact that everybody has not used up their ration. As I was saying, I understand that the guardsmen are entering their sixth year in prison and that is the equivalent of an eight or nine-year determinate sentence, one-third being allowed for parole. I therefore conclude as I began by saying that, if the defects were not as they are in our law, they would now have been at liberty.

8.27 p.m.

Earl Attlee

My Lords, I am grateful to my noble friend Lord Campbell of Alloway for raising this issue as an Unstarred Question. I am grateful also to the noble Lord, Lord Gilbert, for recognising the importance of this matter and being in his place tonight.

Time is short, but I am not known for speaking at length. I should like to draw your Lordships' attention to the effect that this matter has on morale in the armed services. Before doing so, I remind the House that, as a serving officer in the TA, I have an interest to declare.

Soldiers on operations are subject to a wide variety of stresses and strains, to which they will readily admit. The most obvious is the pain of separation from their loved ones. Another is the risk of injury, or worse. In that context I draw the attention of the House to the tragic death yesterday of Corporal Gary Fenton who was assisting the RUC. I am sure that the whole House offers condolences to his family. We do not yet know what the full circumstances were so it would be inappropriate to draw any conclusions at this time.

Good performance on operations is important for career reasons—it is called "the right tick in the box". But there is also a secret, dread fear, not often talked about; that is, the fear of misconduct during operations. At the lower end of the scale we are talking about offences such as negligently discharging one's weapon, which could result in a fine of £1,000 and an adverse confidential report. At the higher end we are talking about misinterpreting the rules of engagement, with the tragic results of which we are all aware. Moreover, soldiers can also be in severe difficulties if they fail to open fire when they should. They cannot just play safe.

It is important to understand that, while soldiers will readily accept discipline even if it has to be severe, they are becoming increasingly demoralised, disillusioned and disheartened by this affair. They cannot understand how rehabilitated known terrorists become politicians and terrorist prisoners are released while at the same time these two soldiers, who did not get out of bed that fateful day intending to commit those offences, are still in prison. Perhaps the Minister can explain.

8.29 p.m.

Lord Inge

My Lords, I should declare an interest as I was Chief of the General Staff in September 1992 when the incident involving Guardsmen Fisher and Wright took place and I feel very strongly that these two young guardsmen have suffered real injustice. Therefore, I am very grateful to the noble Lord, Lord Campbell of Alloway, for raising this Unstarred Question.

I sense from discussions that have taken place in this House and in the other place that there is not really an understanding of the demands we placed on our soldiers who had to operate in a hostile urban environment in their own country against a ruthless enemy and under constant threat of attack. Instant decisions had to be made in very confused situations. In addition to coping with that, we asked them to cope with the yellow card—when can and when can they not use lethal force? I have certainly asked myself how well I would do in similar circumstances.

Certainly, the Scots Guards were in no doubt about the threat that they faced in September 1992. There had been more than 20 attacks with lethal coffee-jar bombs and 18 incidents of shooting and in one a guardsman had been killed. It is important to reflect again on the incident which the noble Lord, Lord Campbell of Alloway, described so vividly. I think it is totally understandable that Fisher and Wright acted as they did. This was not just a routine patrol. The patrol had two specific tasks in support of the RUC, based on hard intelligence; one concerned an illegal drinking club and the other a search of Flat 5b in Templar House, the block where McBride, the man stopped but not searched, because he ran away, by Sergeant Swift.

I think it is totally understandable that Fisher and Wright reacted as they did. If one thinks about it, the patrol commander had stopped this person who they thought had something under his bomber jacket, They stopped him and then he violently pulled from the patrol commander's ear his earphone, leaped across a wall and ran off. That was very suspicious. Despite what the residents said at the trial, Sergeant Swift and Fisher and Wright are adamant that no proper search took place. They are equally adamant that McBride appeared to be carrying something.

That leads me to the trial itself. I find it incredible that key witnesses were not called: the company commander, Major Page; Company Sergeant Major Goodall—a trained search adviser and expert witness; and Guardsman Williams. But even more incredible is the decision not to call Lance Sergeant Swift, the patrol commander, who had a better opportunity than anyone else to say whether McBride was properly searched and whether he thought McBride was carrying something. I think it is even more incredible given that the judge said that the actual search of the suspect—in other words, saying that the search proved that he was not carrying something—was the crux of the prosecution's case. He seemed to rely more on the evidence of three local residents. The noble Lord, Lord Vivian, described one of those witnesses to the House.

I recognise the difficulty faced by the judge but I sense that he did not really understand either the pressure or how Fisher and Wright thought in the middle of that incident. I am left with the uneasy feeling that, if this had not been a Diplock Court but had been a normal court with a neutral jury, a different verdict would have been returned. My unease is heightened when I know that such an eminent and respected fighter for justice as Sir Ludovic Kennedy supports what has been said.

Very surprisingly, as a number of noble Lords have said, Guardsmen Fisher and Wright are still in prison and have been in prison or under close arrest for very nearly six years. Private Thain spent only three-and-a-half years and Private Clegg four years. I find it difficult to understand why.

The noble Earl, Lord Attlee, referred to morale. I endorse what he said. This causes deep concern within the Army, but the Army is a non-political, disciplined service that rightly does not get involved in open critical debate, and its commanders cannot publicly, for reasons that I understand, express their opinion. But you should not, my Lords, underestimate the strength of their feelings. In such cases, those at the sharp end rely on the chain of command—their superior commanders—to fight their corner and look after their interests. This chain of command includes their political masters, because of course it is not military commanders or even the Ministry of Defence that can make decisions in such a case.

The Army's overall record in Northern Ireland has been outstanding. We, the nation, expect the loyalty and dedication of our Army when we, the nation, order it to Northern Ireland. But loyalty should flow two ways—upwards and downwards. In short, any government has a duty to stand by those it orders to discharge its policies. I wonder what Fisher and Wright feel about this. So I, too, hope that the Secretary of State will exercise her discretion without delay and release these two guardsmen; but I think they deserve a retrial as well.

8.36 p.m.

Lord Napier and Ettrick

My Lords, I have read the affidavits and statements that have been placed in the Library and I have listened with great care to all the speeches made so far, particularly the introductory speech of the noble Lord, Lord Campbell of Alloway. It seems quite clear to me that there has been a miscarriage of justice here and that these two Scots Guardsmen, Fisher and Wright, who to date, as we have heard, have spent all but six years in prison, ought never to have been convicted.

How many of your Lordships sitting here this evening have ever tried to put yourselves in their position? Can you imagine what it would be like to be convicted of murder when you were simply carrying out your duty and, as the noble and gallant Lord, Lord Bramall, said, simply as an aid to the civil power? That, let us remember, was the sole reason these two men were in Northern Ireland anyway. It does not really bear thinking about.

In this country we abolished the death penalty since it had become obvious that down the ages men and women had been convicted of murder and were sent to their execution, mainly by hanging, when they were innocent of the crime of which they had been found guilty. In other words, terrible mistakes have been made in the past and terrible mistakes can still be made today. Take, for example, the case of the man who only the week before last was released after completing more than 23 years in gaol for a murder he never committed. His conviction has been found to be unsafe.

In all places over which the Sovereign has dominion justice is done in the name of the Sovereign. She delegates that power to the judiciary and no longer interferes with its administration save to be the granter of a royal pardon on the advice of the Secretary of State. Justice is to be administered in an even-handed way both to those who acknowledge allegiance and to those who do not, irrespective of political or any other extraneous considerations.

Although ignorant of the technicalities of defences to killing, it seems to me, as a former regular officer and as a layman, that justice, as ordinarily understood, has not been done as regards the conviction of these two Guardsmen. How could it be when vital witnesses for the defence were never even called? Now that the Government have access to all the relevant papers in this tragic case, I would like to ask the noble Lord the Minister whether he is satisfied that the Army legal services did everything they possibly could to help Guardsmen Fisher and Wright in their defence.

Whatever general arrangements have been made, or may be made, for the release of prisoners is not the point. In the wholly exceptional circumstances that have been outlined to your Lordships this evening what, in the name of common sense, can be the justification for continuing to detain these two men? Is it not reasonable to ask that they be released at once on licence?

8.40 p.m.

Lord Westbury

My Lords, I thank my noble friend Lord Campbell of Alloway for instigating this very important debate. I am speaking tonight because I am appalled at the treatment of Guardsman Wright and Guardsman Fisher. As a Scots Guardsman, I feel that the whole situation has been a slur on their reputation and also on the regiment which has served sovereign and country since 1642 with honour and distinction, in exactly the same way as these two guardsmen were doing in every sense of the word.

It is now known that the evidence procured at the time of the trial was shabby to say the least of it, and that the defence of these two men was inadequate. A great deal of the blame falls on the government of the time. Sadly, Dr. Mowlam has inherited what is called "a hot potato". The whole affair has now obviously become a political football, regrettably at the expense of these two soldiers who have been in prison for nigh on six years. This wicked injustice should now be brought to a sharp conclusion by their immediate release.

There has been a great deal of public opinion expressed and many letters to the Prime Minister and Dr. Mowlam. All the answers have been similarly evasive, calling their prison sentence the result of a heinous crime. This was no crime. The soldiers were doing their duty to the letter. Surely, whatever government have power, they must uphold their Armed Forces to the hilt; otherwise the whole system collapses. Who would join the Army, Royal Navy or Royal Air Force if they felt that they would be let down in this way? Why cannot the Secretary of State for Northern Ireland release these men immediately? It is within her power to do so.

8.41 p.m.

Lord Thomas of Gresford

My Lords, many of your Lordships tonight have spoken with great military experience and a military background. Perhaps I may also express my concern from a legal background at the result of the proceedings that were brought against Guardsmen Fisher and Wright.

The noble Lord, Lord Vivian, asked the question: why did the judge accept the evidence of the witnesses? Indeed, another of your Lordships posed the question: did the judge understand the position that these guardsmen were in? It has to be said that all the judge had before him was a one-sided account of what had occurred on this particular occasion. As a lawyer, I would focus on the decision by the prosecuting authority to prosecute the two guardsmen for murder.

If one looks at the framework, as excellently outlined by the noble Lord, Lord Campbell of Alloway, what does one have? Peter McBride was quite properly stopped by a guards' patrol in the course of its duty. He gave an address which those guardsmen, together with the RUC, were about to search on the basis that they were premises where it was suspected there were IRA sympathisers. He pulled the earpiece away from the sergeant; he ran away and did not stop when challenged. There is no dispute about those facts. That is the framework within which the decision to prosecute was taken. The overwhelming inference was that he had something serious to hide by the conduct which he exhibited on that occasion.

Yet the prosecution took a firm decision to present the case of murder against these two men based on the evidence of three bystanders. It may be that it can justify that decision on the basis that no bomb was found in the premises into which the young man ran, although there was plenty of time for him to dispose of the bomb if he had one. It may say that, in the heat of the moment, the two guardsmen did not immediately warn their colleagues that a bomb was in the vicinity.

The evidence which those three bystanders gave in court was, in the event, inconsistent with the earliest accounts that they had given to the police. As has been said by the noble and gallant Lord, Lord Napier and Ettrick, the essential point was—did Lance Sergeant Swift search Peter McBride or did he not? That was the factual issue in the case. The very witness who could give evidence to that—the man who either did or did not carry out the search; namely, Lance Sergeant Swift—was not called to give evidence.

It is not enough for the prosecuting authority to say, "Oh well, we handed over his account to the police, given on that same day to the defence for it to use that evidence if it so wished and for it to call the witness if they thought fit". There are many reasons why a defence legal team does not call a witness in defence. As a matter of practice one would hesitate in any case to call witnesses for the defence. In our system the burden is firmly on the prosecution. Although the noble Lord, Lord Westbury, suggested that the guardsmen were inadequately defended, I would not go along with that simply on the basis that statements may have been handed over which did not result in those witnesses being called by the defence.

When the case reached the appeal stage the findings of fact could not be effectively challenged by the appeal lawyers. Indeed, the Lord Chief Justice, Lord Hutton, said that the main objective facts relating to the killing were not in dispute. He said, No bomb or firearm of any type was found in the course of the search and it was not in dispute that at no time had the deceased been carrying a gun or coffee jar bomb or any type of bomb. Therefore, as the deceased was shot when he was unarmed the appellants, on the objective facts, had no lawful justification for firing at the deceased". The trial judge was bound by the evidence that was put before him to make findings of fact. The appeal court was equally bound to follow those findings of fact in the absence of any application for further evidence at that stage.

The noble Lord, Lord Chalfont, pointed out the distinction between terrorists who go out intending to kill and soldiers who are intent on keeping the peace when they go out. When a member of the IRA is caught he wishes to be treated as a prisoner of war even though he represents only a tiny unrepresentative terrorist faction. He will not answer an interrogation; he will plead not guilty at his trial and he will not give evidence. He will go to prison where special IRA arrangements are in hand for him to be treated as though he were a prisoner of war and not a common criminal. Then he sits and waits for the armistice.

It is totally unacceptable that a person should assume for himself those privileges when people like the guardsmen who are real soldiers representing their country and who have the support of the whole community behind them, are treated as common murderers and kept in prison for an overlong time. It is time they were released.

8.49 p.m.

Lord Burnham

My Lords, it is not only Members of your Lordships' House who must be grateful to my noble friend Lord Campbell of Alloway for tabling this Unstarred Question; it is also necessary to state that I am very grateful for the manner in which my noble friend opened the debate because reporting of this case has been inadequate. The newspapers have consistently been inhibited by threats of libel and, indeed, by libel cases which have already cost the Daily Telegraph £130,000 plus costs in this and similar incidents, and there is another case which may well cost even more. Therefore, the chance and the hope that my noble friend's remarks will be widely reported must be extremely helpful, as must all the points made by your Lordships.

The case has been explained carefully by noble Lords. We must all be particularly grateful for the remarks of my noble friend Lord Vivian and of the two noble and gallant Lords who have spoken. However, unless we have a retrial, this case is in the past and I believe that I should touch tonight on matters relating to the future.

I am most grateful to the Minister for a letter that he wrote to me a fortnight ago on this case in which he confirmed that Mr. Justice Coghlin was not persuaded that a sufficient case had been made out to quash the Secretary of State's decision. I now quote from the Minister's letter, which reads: However, he [Mr. Justice Coghlin] granted a declaration that there has been a failure to provide proper and adequate reasons for the decision to distinguish the applicant's cases from that of Thain and has remitted their cases to the Secretary of State for further consideration in accordance with that Order". Let us hope that something comes of that because the two guardsmen seem to have been treated in a different manner from Clegg and Thain.

Secondly, I ask the Minister yet again—I have asked this of several Ministers both in this Government and in the previous government—for an absolute and unequivocal declaration that there is nothing political in the failure to release the two men. I accept that the Secretary of State and the previous Secretary of State—I am glad to see him in his place—had a very difficult time. I quote from Republican News (or An Phoblacht) of 11th June 1998: We know they are going to get out, but what really grates is the fact that they are still serving members of the British army. They'll have maybe £60,000 in back money waiting for them when they get out, and we know that their families have been assured that they won't have to go back to Belfast, but that they'll probably be posted to Germany". I again ask the Minister to repeat that there is nothing political in the decision as it stands at present. I am sure that the Minister has already given this assurance, but I should like to hear it tonight.

Lord Mayhew of Twysden

My Lords, I am most grateful to my noble friend for giving way, but I detected a certain lack of assurance in what he has just been saying that what he was seeking was in fact the case—an assurance from me, as the previous Secretary of State, that there was no political component or influence in the decision that I took in the first instance. I seek to take no refuge in the fact that, as my noble friend said, I had a difficult time. I had not spent nine years as a Law Officer in Northern Ireland seeking to uphold the rule of law to abandon that when I took office as Secretary of State. I give my noble friend now the assurance about which I hope that he was not really in any doubt.

Lord Burnham

My Lords, of course I accept what my noble and learned friend has said. He was Secretary of State in another place, but I had an assurance from my noble friend Lady Denton in almost exactly the same terms as he has just given. I accepted that as being the same as having the assurance from the Secretary of State himself.

My final point is to ask that when Fisher and Wright are let out they will be permitted to continue to serve in the Scots Guards, should they so wish. It would be no surprise if they are fed up with the treatment that they have received when trying to maintain law and order. However, I hope that, like Corporal Clegg, they will feel that they wish to continue to serve. I hope that they will remember Nemo me impune lacessit—touch me not with impunity.

8.54 p.m.

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

My Lords, perhaps I may first join with all those noble Lords who have complimented the noble Lord, Lord Campbell of Alloway, for introducing this very important debate. At the outset, I should like also to pay a tribute to the Army and to the many young soldiers who have served in Northern Ireland with enormous courage in extremely difficult and dangerous circumstances.

I am aware of the considerable interest in this House in these particular Northern Ireland life sentence cases and I understand the concern that these cases should be dealt with fairly and consistently. I am therefore particularly grateful for this opportunity to advise the House on where these cases currently stand following the most recent judicial review judgment, delivered on 22nd May.

The background to these cases is well known and has been explained by a number of your Lordships. The two guardsmen were jointly convicted of the murder of an unarmed civilian, Peter Paul McBride, who was killed during an incident which occurred while they were on patrol in Belfast.

The courts, both at first instance and upon appeal, found that, on the object facts of the case, the guardsmen had no lawful justification for firing at the deceased and that the guardsmen were guilty of murder. Leave to appeal to the House of Lords was refused on 8th March 1996.

Having been convicted and imprisoned in Northern Ireland, the guardsmen's cases fell to be considered under Northern Ireland life sentence review arrangements.

In April 1997, following a judicial review of the cases, the former Secretary of State for Northern Ireland, now the noble and learned Lord, Lord Mayhew, decided that the cases should be considered by the Life Sentence Review Board at the five-year point of sentence—that is to say, in October 1997.

The cases were duly considered by the review board and its confidential advice was subsequently passed to and considered by my right honourable friend the Secretary of State for Northern Ireland. She decided that the cases of the guardsmen should be referred back to the Life Sentence Review Board in October 1998—that is to say, at the six-year point of sentence.

It was this decision which was the subject of the recent judicial review and the judgment delivered on 22nd May. In it, Mr. Justice Coghlin did not quash the Secretary of State's decision. However, he granted a declaration that there had been a failure to provide proper and adequate reasons for the decision to distinguish the applicants' cases from that of Private Thain and remitted their cases to the Secretary of State for further consideration.

The Secretary of State complied with the requirements of that judgment last week. On 17th June both guardsmen were provided in writing with the Secretary of State's detailed reasoning.

The reasons included the overall involvement of the respective soldiers in the two individual incidents; their knowledge of the whereabouts of the rest of their respective patrols during the pursuit; the fact that the guardsmen were acting in concert; and the passage of time since Thain's case had been considered and the knowledge of more recent, relevant cases.

The noble Lord, Lord Campbell of Alloway, and many other noble Lords raised concerns about the safety of the convictions. As the noble Lord has informed the House, he recently forwarded me a number of sworn affidavits which are purported to contain fresh evidence about the cases. He has also asked whether, given concerns about the convictions, the prisoners could be released by the Secretary of State. I am grateful to the noble Lord for the helpful way in which he has advised me of his general approach to this evening's debate and for sending me copies of the affidavits. I appreciate his helpfulness.

I should explain that my right honourable friend the Secretary of State previously had a statutory power to refer cases back to the Court of Appeal when it appeared that there had been a miscarriage of justice. However, the Secretary of State's statutory power lapsed when the new independent Criminal Cases Review Commission began its work on 31st March 1997. As a consequence, questions about the safety of any conviction in Northern Ireland are no longer matters properly for the Secretary of State. If the noble Lord, Lord Campbell of Alloway, wishes, I would be happy to forward his papers to the Criminal Cases Review Commission.

It has been put to me that, notwithstanding the fact that the Secretary of State no longer has a role in referring cases back to the Court of Appeal, she retains responsibility for their release from imprisonment. She could therefore use this power to release the prisoners pending consideration of the cases by the Criminal Cases Review Commission. I believe that that is the thrust of many arguments advanced by noble Lords this evening. In the alternative, it has been suggested that some other mechanism for release can be used such as the Royal Prerogative of Mercy, to use its full title. I understand that if the Criminal Cases Review Commission refers cases back to the Court of Appeal it would be open to the prisoner to apply to the court for bail.

The Royal Prerogative of Mercy is properly available to be used in truly exceptional circumstances where other mechanisms are not available or would be unduly delayed. As to the Secretary of State's general power to release life sentence prisoners, this is not unfettered. She is required to consult the Lord Chief Justice and the trial judge, if available. Moreover, in exercising her powers she is required to act on a rational basis; she must not be influenced by extraneous or immaterial considerations and must have regard to material factors only.

In the consideration of any life sentence case the proper starting point must be that the prisoner has been properly convicted of murder or some other serious offence. It is not the role of the Secretary of State to attempt to second-guess the Northern Ireland courts, and it would be entirely improper for her to replace their judgments about guilt or innocence with her own. Furthermore, in the consideration of life sentence cases she must pay full regard to the facts as found by the courts and available in their judgments.

Noble Lords have asked when the guardsmen can expect release from life imprisonment. Given the nature of a life sentence within the Northern Ireland jurisdiction, I cannot answer that question. In Northern Ireland, unlike England and Wales, there is no tariff system and therefore no specific penal element formulated at the outset of an indeterminate sentence. There is in consequence no minimum period that a life sentence prisoner is required to serve. Instead, all cases are considered in the round with the various elements of the sentence; that is to say, retribution and deterrence, risk and the public interest being relevant in varying degrees throughout sentence. In Northern Ireland the average period served in custody towards a life sentence is 15 years. This is in the context that life sentence prisoners generally serve a period within the range of 10 to 20 years.

Fisher and Wright have now served just over five-and-a-half years in custody and are due to be seen a second time by the Life Sentence Review Board in October when they will have served six years in custody. This contrasts with most other cases that are seen for the first time at the 10-year point of sentence. The exceptional treatment of these cases reflects the fact these are not normal life sentence cases. Mitigating factors include the difficult circumstances in which the guardsmen were operating in the course of their duty and the fact that there was no premeditation. The circumstances which resulted in this particular murder cannot in any way be compared with carefully pre-planned and executed murders carried out by terrorist-type offenders. However, the decision not to release these prisoners reflects the fact that a very serious crime was committed which resulted in the death of an unarmed civilian youth.

A number of noble Lords have compared these cases with those of terrorist prisoners who stand to be released early under mechanisms being proposed in the Northern Ireland (Sentences) Bill to be debated in your Lordships' House shortly. Fisher and Wright, like other prisoners convicted of scheduled offences, will be eligible to apply to have their cases considered by the proposed sentence review body. This does not mean that they are being treated as if they were terrorists. If a declaration is made in their favour, they will be required to serve roughly two-thirds of the period that they would otherwise be required to serve under the existing review arrangements. I have already explained that the guardsmen have had their cases considered under existing arrangements much earlier than most other prisoners.

I should like to deal with a number of specific points raised in this debate. I fear that many of them are not matters for the Government. They concern the way in which the defence was conducted and matters falling within the discretion of the judge. Therefore, they are not matters over which the Government have any influence, nor should they. I deal with one matter raised by the noble Lord, Lord Burnham, the noble Lord, Lord Chalfont, and others. For the sake of absolute clarity, there is no political content whatsoever in the Government's handling of this case. The Government have not been influenced by political considerations at all. The position of the Government is based solely on the merits of the two particular cases.

Lord Burnham

My Lords, I thank the Minister for giving way. That being the case, what has changed since the release of Private Thain? The noble Lord said that circumstances were different. What is different except the political situation?

Lord Dubs

My Lords, political considerations did not influence my right honourable friend the Secretary of State in her decision on the previous recommendation of the Life Sentence Review Board. Each case is treated on its merits. The details of the particular cases of Fisher and Wright distinguish them from that of Private Thain. That is the reality. That was what the Secretary of State looked into again following the judicial review proceedings.

Lord Thomas of Gresford

My Lords, the noble Lord referred to the defence and the judge. He said that the Government had no control over how they conducted their respective responsibilities. The Government have overall control over the mounting of a prosecution. Has the Minister looked at the prosecution file? Can he inform the House why it was that only one side of the evidence was put forward by the prosecution as part of its case?

Lord Dubs

My Lords, I have not looked at the prosecution file. But the fact is that the decision was made by the court and was upheld by the Court of Appeal. It is that decision which noble Lords believe that the Government can reverse. The Government cannot reverse that decision; they have no power to do so, and it would be improper were they to do so.

Lord Molyneaux of Killead

My Lords, I am grateful to the Minister for giving way. As I understand it, he will be in charge of the promotion of the Bill next Monday which gives the Secretary of State absolute authority to release terrorists at any time of her choosing. I do not want to bracket the guardsmen with terrorists, but would they have been in a more fortunate position after Monday if they had been terrorists?

Lord Dubs

My Lords, let me make it clear that there are two separate and parallel procedures open to the guardsmen. One is the existing procedure under which the Life Sentence Review Board will look at the position again in October and make a recommendation to the Secretary of State. The alternative procedure—subject to both Houses agreeing the Northern Ireland (Sentences) Bill—is that the review body established under the new legislation could also look at their cases because they had been convicted of scheduled offences.

I cannot predict how quickly that body will operate and what priorities it will have for its work. The prisoners now have two alternative ways forward. They will have lost nothing by having the second procedure—if Parliament agrees—indeed, they may well gain some time by it; in other words, the new body might deal with their cases more quickly.

Lord Campbell of Alloway

My Lords, I am in some difficulty. I think that the Minister asked what I would advise them to do with regard to those two procedures. The Minister must understand that I am not instructed professionally in this matter. They will have to seek professional advice. I doubt whether they will seek my advice. Therefore I am not in a position to advise them. We shall read the Minister's most helpful speech. There are two avenues. If either of those avenues is taken on the advice of whoever they consult, why, in effect, cannot ministerial discretion—the delegation of the royal prerogative—be granted for immediate release? That is what I am after. I cannot advise these men unless I am instructed to do so. I am entitled to say, in the name of justice, under the royal prerogative, release these men.

Lord Dubs

My Lords, there is, of course, the third avenue to which I have referred, but it is not for the Government to give this type of advice. There is the Criminal Cases Review Commission. I have offered to send the noble Lord's papers to the commission as being the most appropriate procedure for dealing with miscarriages of justice.

Lord Campbell of Alloway

My Lords, I am very grateful. I accept the offer. They will be handed over, but I cannot advise unless instructed.

Lord Dubs

My Lords, I believe that I have answered all the specific questions. Most of them, I repeat, concern the way in which the court operated, the judge's decision, and the way in which the defence conducted the case. I do not know that I can say any more on that.

As regards the points made by the noble and learned Lord. Lord Ackner, which related to the whole legal basis for this and many other cases, all I can say is that I will draw his remarks to the notice of the noble and learned Lord the Lord Chancellor. I do not think that I can do more than that. Let me give the assurance that political considerations have in no way influenced the Government's approach to these two cases.

I have listened carefully to all the views that have been expressed. I can give noble Lords the assurance that these cases will continue to be considered, as they have been to date, solely on their merits, without reference to any other extraneous considerations.

House adjourned at thirteen minutes past nine o'clock.