Bloody Sunday charges: The legal arguments

By Clive Coleman
BBC legal affairs analyst

Image caption, Thirteen people died when British soldiers opened fire in Londonderry

Lord Saville's report into the Bloody Sunday killings raises the possibility of criminal prosecutions for offences ranging from perjury to murder.

The decision whether to bring any charges following the inquiry will fall to the head of the Public Prosecution Service for Northern Ireland (PPS) .

The current director, Sir Alasdair Fraser, announced last week that he is retiring in September, so it might fall to his yet-to-be-appointed successor.

The decision in any individual case would follow a police investigation and the director would have to apply a two-part test set out in the Code for Prosecutors.

Firstly, he or she will have to be satisfied there is a reasonable prospect of a conviction.


This is known as the evidential test, and in essence means there must be a better than 50% chance of persuading a jury of guilt.

That is clearly going to be problematic in cases resulting from the shootings where the evidence is 38 years old.

Much will depend on which evidence has survived, and what has perished.

The age and reliability of witnesses will be very significant.

The process will be open to any defendant charged to argue that the passage of time means they cannot receive a fair trial, and that any trial would amount to an abuse of process.

A further complicating factor is that all of the witnesses who gave evidence to the inquiry were given immunity from prosecution arising from self-incrimination.

In other words, anything they said about themselves could not be used as evidence against them in any future criminal prosecution.

However Michael Mansfield QC, who represented the families of some of the victims, has said the immunity from prosecution arising from self-incrimination does not cover false testimony.

That assertion is based on an undertaking given in 1999 by the then Attorney General, John Morris QC, that the protection from prosecutions based on self-incrimination would not cover false evidence given to the inquiry.

Image caption, Sir Alasdair Fraser has been PPS director for 21 years

In a statement on Tuesday, the PPS made it clear it would consider that undertaking.

Lord Saville concluded that some British paratroopers "knowingly put forward false accounts". That raises the possibility of prosecutions for perjury.

Mr Mansfield told BBC Radio 4's Today programme "the rule of law has been flagrantly breached on this occasion by a number of soldiers on a number of UK citizens" and "that consideration should be given to a prosecution".

If the evidential test is met in any individual case, the director of public prosecutions has to go on to consider whether a prosecution is required in the public interest.

Applying the so-called public interest test is clearly going to be a difficult.

Following the Good Friday Agreement in Northern Ireland, some will see Lord Saville's report as achieving closure.

Others will be strongly of the view that prosecutions are required in the public interest.

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