Justice for the military is far from uniform

Referring the Clegg case back to the Court of Appeal has only confirmed to the people of west Belfast that there is `fast-track' justice for British soldiers
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The Independent Online
LEGAL NOTE: Legal Message - DO NOT repeat any implied or expressed criticism of the way in which Lee Clegg was prosecuted without seeking legal advice.

Patricia Wynn Davies Case far from closed: Pte Clegg; protesters demonstrate against his release; the murdered teenager Karen Reilly

"Fast-track justice" was how it was being viewed in west Belfast, as Lee Clegg and his supporters celebrated the decision by Sir Patrick Mayhew, Secretary of State for Northern Ireland, to refer his murder conviction back to the Court of Appeal after a mere six months' consideration.

There is no doubt that the paratrooper, who served two years of his sentence for the killing of a teenage joyrider on a pre-ceasefire September night in 1990, has an arguable case. An inch-thick dossier of detailed ballistic and forensic evidence sent to Sir Patrick last July suggests that the fourth of four shots said to have been fired from his rifle - ruled as excessive force by the trial judge because any danger from the car that had raced towards his patrol had passed - could have come from the weapon of another soldier.

There seems little doubt either that Clegg, now a lance-corporal and a PT instructor at the parachute training centre in Catterick in North Yorkshire, was the victim of a prosecution which was far from even-handed about the events that night.

Why was it that of the group of soldiers firing a volley of bullets out on the Glen Road in the darkness, only 21-year-old Pte Clegg, the youngest in the patrol, was singled out for the murder of 18-year-old Karen Reilly, a passenger in the car? Forensic evidence presented to Sir Patrick indicates not only that the murder bullet was fired by someone else, but also that one of the men in another "brick" of soldiers further down the road fired the shot which killed 17-year-old Martin Peake, the driver of the stolen Vauxhall Astra, again at a time when the need for self-defence had passed. That bullet was never found. But there was no "common purpose" prosecution involving the other soldiers, the device frequently used to secure murder convictions in other Northern Ireland cases where the Crown cannot prove who inflicted a fatality.

As one former paratrooper present that night has put it, "all of us could have been charged with murder". Instead, the seeds had been sown for the unprecedented phenomenon of a miscarriage of justice campaign that had the backing of the Army's top brass.

By March 1995, Sir Patrick, not a man usually given to making hasty decisions, referred the case to the Northern Ireland Life Sentence Review Board, in view of "exceptional mitigating" factors. Thousands of people had rung into mainland newspapers demanding Clegg's release.

By July, following a recommendation from the board, he was freed on licence. With the time spent on remand, he had served a total of four years. It is the ensuing unrest on the streets of Belfast that stuck in people's minds. Less noticed was the action of Breidge Gadd, Northern Ireland's chief probation officer, whose sense of injustice led her to resign her membership of the board in protest at the case being reviewed seven years before the normal date. The usual date of the first substantive review of mandatory life sentence prisoners is 10 years, and most serve 14 or 15. For many, the decision was proof of a system of differential justice.

Clegg was not the first soldier to have secured early release. Eighteen- year-old Private Ian Thain, who shot 22-year-old Thomas Reilly, the road manager for the Bananarama pop group, was paroled after serving 26 months of a life sentence for murder.

And now it seems that the two-tier approach could be in the process of securing legal, as well as political, backing after a ruling in a Northern Ireland High Court case last month. Two Scots Guards who lost their appeals against convictions for murdering Belfast teenager Peter McBride in 1992 argued that they were being treated less favourably than Pte Thain or paratrooper Clegg because Sir Patrick had decided in their cases that the question of release should not be referred to the review board until late 1998, still well short of the 10-year mark. The judge upheld a judicial review brought by the soldiers, James Fisher and Mark Wright, and directed the Northern Ireland Secretary to reconsider his decision.

It was learned during the case that officials in the Northern Ireland Office had recommended that Thain should be released after serving three years and 11 months, including time spent awaiting trial. The two Scottish soldiers have spent more than four years in custody.

If soldiers are going to be compared with soldiers, and the rule of law mixed up with politics, there is little evidence of the system being prepared to compare the fate of soldiers with other cases where a miscarriage of justice has been alleged. The decision to refer the Clegg case back to the Court of Appeal has only confirmed in the minds of the people of west Belfast that there is fast-track justice for British soldiers while others who dispute their convictions make little headway in getting their cases returned to the courts.

They include Billy Gorman, convicted at the age of 14 of murdering a policeman in 1980. He has served his 14 years but, like Clegg, wants the conviction expunged. At his trial, his counsel took the unusual step of putting Gorman back in the witness box after he was found guilty to protest his innocence. Evidence that he was ill-treated in custody and that the police tampered with interview notes were submitted to the Northern Ireland Office. A few days ago, he had a communication from the authorities - to be told there would be no prosecution of the police officers involved.

Another long-standing application is that of Neil Latimer, one of the "UDR Four", who was convicted in 1986 of the murder of a Roman Catholic. The most telling case of all, perhaps, is that of the so-called "Casement Three", who were convicted of the murder of two Army corporals who had been dragged from their car near a Belfast funeral in 1988 and beaten up in Casement Park before being driven away and killed by the IRA. No one had any difficulty in bringing a "common purpose" prosecution and securing a conviction here. No one alleged that any of the three were involved in the actual murder, or were present when the soldiers were murdered, or that they were significantly involved in the lead-up to the murder or that they had paramilitary connections or previous criminal records.

The Committee on the Administration of Justice, the Northern Ireland civil liberties council, has concluded in the firmest terms that they are not guilty of murder. The Northern Ireland Office rejected their plea for their convictions to be reviewed again by the courts. But then cases like this never reached the Cabinet table.

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