THE POLITICS OF PAROLE

The question is not whether Private Clegg

is a murderer, writes John Ware, but why

his case is under review and not others

IF MARTIN McGUINESS says the release of the paratrooper Private Lee Clegg will damage the peace process — as he has — then there is at least a chance that it won't. Mr McGuiness is an IRA man negotiating on behalf of the IRA with the British: he would say that, wouldn't he?

But if the Irish Prime Minister, John Bruton, says — as he has — that releasing Clegg without the early release of deserv- ing paramilitary prisoners would damage the peace process, we should listen very carefully. He carries not a trace of IRA baggage. Indeed, he is one of the few politicians south of the border whom Unionists respect. He told John Major last weekend that Clegg's release would 'create a sense of one law for the security forces and another law for everyone else'. That is why there is a political dimension to releasing Clegg.

Of course, the merest suggestion that politics should taint the criminal justice system always produces a level of forthright sanctimonious humbug that only the British ruling classes can muster. The Prime Minister's response to Bruton's statement was that political considerations would never apply to the early release of Private Clegg or anyone else. This week the Northern Ireland Secretary, Sir Patrick Mayhew QC, announced a relaxation of the rules for compassionate leave — but then added in his posh 'I wouldn't lie to you' voice, 'There isn't any question at all of any linkage between the case of Private Clegg and consideration of possible changes to remission rates.' In assessing that statement, it is worth remembering that 18 months ago this Balliol-educated Guards officer said there wasn't any ques- tion at all of talking to terrorists.

Our Prime Minister seeks to sustain the myth that on this side of the Irish sea polit- ical considerations will not apply to Private Clegg. Like every other case, he says, it will be dealt with on its merits. But by choosing to grant special favours to Private Clegg Mr Major's own ministers have, in fact, already tarnished the criminal justice system with politics. For there is at least one victim of rougher justice than Lee Clegg still in jail in Northern Ireland. Despite the man's continued incarcera- tion, the same ministers who have refused `for legal reasons' to move his case along are now using every legal trick in the book to satisfy the 'Free Lee Clegg' political campaign.

Patrick Kane is a nationalist in prison for life. His case is more deserving in every way than that of Lee Clegg. Despite his 1,895 days behind bars (Clegg has served 1,412), there is not the slightest chance of his being adopted by a major Daily Mail campaign; nor is it likely that MPs, the Secretary of State for Defence or the Prime Minister will jump to his defence. Indeed, the only time Kane's case has been raised on this side of the Irish sea was in a BBC Rough Justice pro- gramme, and that just produced a torrent of abuse from tabloids. The lessons of Guildford and Birmingham — namely, that Irishmen accused of IRA activities are not necessarily guilty — had evidently been lost on them. In a lurid front-page story, the Sun screamed, 'Fury as BBC defend the IRA.' It didn't matter that Kane wasn't in the IRA.

Kane is serving life for the murder of two British corporals, Derek Wood and David Howes. In March 1988, Wood and Howes drove past the funeral cortege of an IRA man in Belfast. He had been killed three days earlier in a suicide attack by a loyalist at the funeral of the IRA trio shot by the SAS in Gibraltar. The soldiers were dragged from their car into a sports ground, where they were stripped, beaten, thrown over a wall and then driven off in a black taxi to their execution. The murders caused widespread revulsion: the first two minutes of their ordeal were taped and later shown on television.

Patrick Kane had never been in trouble in his life before and knew nothing about the taxi or the IRA gunmen. He wasn't even present when the soldiers were shot. He just happened to be on the street when the soldiers were cornered. Although he was 29, he was assessed as having a mental age of 11. But the trial judge found that because he was present for a few minutes in the sports ground he shared a common purpose with the IRA and was therefore as guilty as they were: he clearly had murder in his mind.

Kane had also signed a police statement in which he admitted to being in the sports ground, kicking one of the soldiers after he'd been stripped, and helping the IRA eject a priest who was trying to save them.

However, the BBC acquired the video- tape of the entire incident, shot from an army helicopter, which was shown in court during the trial. What it showed was that, far from kicking either soldier after the stripping, and far from helping the IRA eject the priest, Kane actually walked past the soldiers and left the park with the priest, never to return. In other words, the videotape corroborates another part of his police statement, in which he said that he wanted to disassociate himself from what was going on.

Perhaps this is why in the Belfast City council, notorious for petty sectarian squab- bles, freedom for Pat Kane is just about the only thing nationalist and unionist council- lors have been able to agree on. As Cecil Walker, the Unionist MP for North Belfast told me, 'That boy should be out.'

Most agree that the judgment of the trial judge, Mr Justice Carswell, contained sever- al inconsistencies. The most glaring was the absence of any reference to the clear con- flicts of evidence between Kane's move- ments as proved by the videotape and Kane's verbal statement about his alleged movements to the police (recorded by hand and not by tape and taken without the pres- ence of a solicitor, even though mentally he was, effectively, a minor). Although it was challenged during the trial, the judge pre- ferred the police statement.

In contrast to the flimsy case against Pat Kane, the evidence against Lee Clegg seems overwhelming. He was convicted of murdering a joyrider, Karen Reilly, in September 1990. Clegg claims he opened fire to save the life of a comrade patrolling on the other side of Belfast's Glen Road. He had to fire because the car was being driven at his comrade. Clegg says he fired three shots at the windscreen and one at its side. He denied firing at the back of the car — as the Crown claimed — after the alleged threat to his comrade had passed. And yet in the same breath he claimed to have fired only after he saw the car appear to knock his comrade off balance — which it didn't.

There were no bullet-holes in the wind- screen and Clegg's shell casings show him to have been standing virtually opposite his comrade. He would hardly have fired just as the car passed — he might well have killed a fellow paratrooper. All the evidence suggests he fired at the back of the car when it was no threat to anyone as it sped away. A bullet which penetrated the car boot, and which lodged next to Karen Reilly's liver, was proved to have come from Clegg's gun. Despite Clegg's claims that he thought it was a terrorist car, he, like his fellow paratroopers, knew very well that to Belfast's teenage joyriders the Glen Road was the equivalent of Brands Hatch.

In fact, Clegg's catch-all 'terrorist' defence has only surfaced in the tabloids, who have conducted telephone interviews with him from jail. As Northern Ireland's Lord Chief Justice Hutton said, when dis- missing his appeal, 'There is not the slight- est suggestion in Private Clegg's evidence that he thought the driver was a terrorist who was using the car as a weapon of offence to attack a soldier . . . '

However, it looks as if Clegg will be released soon after serving only four years of his life sentence. This marks the first time that the Northern Ireland Life Sen- tence Review Board has examined argu- ments in favour of releasing a life prisoner so early in his sentence. It did so only at the request of the Northern Ireland Prison Service — which is curious, since Clegg himself has been allowed the privilege of serving his sentence in Wakefield jail, Eng- land. Curiouser still, the Prison Service claims that there are 'exceptional mitigat- ing factors' for referring the case. Certainly no one will admit that these are political: the Northern Ireland Office will tell you with a straight face that neither the minis- ter in charge of prisons, Sir John Wheeler, nor the Secretary of State, Sir Patrick Mayhew, had any role in the decision to review the case whatsoever.

Clegg's case is indeed 'exceptional' but only for the ballistic velocity with which the campaign to free him has accelerated. There's nothing new or exceptional about the case on its merits alone: having found that Clegg fired a shot with intent to kill, the trial judge was obliged, as the law stands, to find him guilty of murder, which carries a mandatory life sentence. Since there was no evidence that Clegg set out to murder a joyrider that night, a fairer pun- ishment might have been manslaughter.

As Lord Lloyd of Berwick put it: The law would be much fairer if it had been open to the trial judge to have convicted Clegg of the lesser crime of manslaughter on the ground that he did not kill Karen Reilly from an evil motive but because, his duties as a soldier having placed him on the Glen Road armed with a high-velocity rifle, he reacted wrongly to a situation which suddenly confronted him. . . '

In Northern Ireland, soldiers have killed more than 200 people in disputed circum- stances. By 'disputed' I mean the shooting of civilians innocent of any terrorist crime, or terrorist suspects who were unarmed or who weren't given a reasonable chance to surrender. Of these, no fewer than 40 peo- ple — almost all of them unarmed — have been shot dead by paratroopers. The paras have a record of ill discipline and trigger- happiness in Northern Ireland unmatched by any other unit of the British Army. Their victims included four children, two priests and two teachers, one of whom had just applied to join the RUC.

Private Clegg is only the second soldier to be convicted of murder. And I would agree with Lord Berwick that this is the wrong offence to charge him with, because intent is hard to prove in a terrorist the- atre where the justification of self-defence is almost impossible to discount. There are judges, lawyers and politicians who have campaigned to lower the threshold with a new charge called 'unreasonable force' in cases that would otherwise be murder or nothing at all. That way the law would be seen to be applied more even-handedly because more soldiers would be charged.

Still, the only other 'exceptional' feature of the Clegg case is the vintage quality of humbug from the Prime Minister in main- taining that the British legal system remains untainted by political considera- tions and that the case will be dealt with like every other case — on its merits. The Life Sentence Review Board has made its recommendation to Sir Patrick Mayhew. `It's not something anyone else can inter- fere with,' Mr Major said. 'It's for him.' Yet we know what Sir Patrick thinks. His deci- sion to make the Prison Service get the Review Board to look at Clegg's case betrays his sympathies in the first place. And Sir Patrick wouldn't now be planning to consult the Lord Chief Justice and the trial judge about a release date if the Board hadn't recommended what the political campaign moved Sir Patrick to want freedom for Private Lee Clegg.

In Patrick Kane's case, the Northern Ire- land Office explained that the criterion Sir Patrick Mayhew would normally be expect- ed to satisfy 'before referring a case back to the Court of Appeal' is that 'there should be some new evidence or other issue of substance which has not been before the court . . . ' Since this did not apply in Kane's case, his hands were tied. The same is undoubtedly true of Lee Clegg. The dif- ference is that the case of a guilty British soldier has been referred to the Review Board; the case of an innocent nationalist has not. In exercising their discretion this way, British ministers have spoken volumes about the chasm of misunderstanding between them and the Irish as to what the word 'justice' really means.

John Ware presents the BBC programme Rough Justice.