The law applies to all, even those directly or indirectly employed by theState, writes Carol Coulter, Legal Affairs Correspondent
Despite what millions have learned from the James Bond movies, there is no such thing as a "licence to kill".
No one either directly or indirectly in the employment of the State, either here or in the UK, can commit crimes with impunity. The law applies to all State employees, including those working with the security services, as much as to any other individual.
The "Crown" in Britain has certain immunities, including immunities from certain kinds of civil suits. But there is a distinction between the person of the monarch, in this case, Queen Elizabeth, who has personal immunity, and the servants of "the Crown", meaning the state. They have no immunity from criminal prosecution. In the 19th century a defence of "compulsion by superior orders" existed, but this does not exist today.
There are some exceptions for those working for the security service or the secret services in the UK. According to Mr John Wadham of the civil liberties organisation, Liberty, some activities otherwise illegal could be specifically ordered by a minister, and would be immune from prosecution.
This would include, for example, breaking into a house to plant a listening device. But under both domestic law and international law such immunity does not extend to murder.
Of course, as the recent history of Northern Ireland shows, this does not mean that all are prosecuted equally. But this raises issues about the role of the DPP in both jurisdictions, and his relationship with the Government, rather than any statutory basis for immunity from criminal prosecution.
There are defences to the charge of murder or manslaughter, and these include self-defence, or the defence of the life of another. Where the security forces are concerned, the use of lethal force is regulated by law and internal regulations. Under the European Convention on Human Rights, to which both Ireland and the UK are signatories, the use of lethal force is only permissible to the extent necessary to effect an arrest.
Culpability for the death of another extends to complicity in that death. Therefore anyone who co-operates, assists, aids, abets, or otherwise encourages another person to commit a crime is equally guilty of the crime.
All these issues have been brought into sharp focus by allegations during the week concerning the identity of a British agent within the top ranks of the IRA. But they were already there with the revelations concerning the presence of British agents within loyalist organisations, and their involvement in, or knowledge of, various crimes, including murder. Further, this knowledge was often passed on to "handlers" within the security services, which makes them legally culpable if they did nothing to prevent them. So far, there has been a dearth of prosecutions in this area. But there are precedents in international law for establishing a states' liability where people have been killed by members of the security services or their agents. Much of this is to be found in the European Court of Human Rights in Strasbourg. Article 2 of the European Convention on Human Rights upholds the right to life, and the court has found that the state has a positive duty to uphold this right and protect life.
Mr Donncha O'Connell, lecturer in law in NUI Galway, pointed out that the British state already has a judgment against it under this Article, when it was found that the killing of three unarmed members of the IRA in Gibraltar violated their right to life, because the control and planning of the operation to arrest them carried the likelihood that they would be killed.
"Since then the ECHR has developed its jurisprudence and now there's a far stronger sense of a positive obligation to protect life," said Mr O'Connell. "The authorities are in breach of the Article if they 'knew, or ought to have known, at the relevant time, of the existence of a real and identified risk to the life of an individual or individuals'," he said. "There is a wide margin of appreciation where national security is concerned. But that is narrower if there is a blatant disregard for life." He said that, following the enactment of the Human Rights Act in the UK, cases could be brought under this Article domestically, up to the House of Lords.
Another option for the families of victims, or purported victims, of such agents and their handlers would be the United Nations Human Rights Committee, and the UN Special Rapporteur on Extra-Judicial Killings, he said.
But this requires individual families to take action, following a failure of the State to do so and initiate prosecutions. Such a failure, on past experience, is likely. In both this State and the UK, the DPP has discretion to prosecute, and one of the considerations he can have is "the public interest". "Criminal proceedings are defined as the only proceedings where the State can decide to remit the sanction," said Prof Finbarr McAuley of UCD. "This means the State can decide not to prosecute, as well as prosecute. There is an area of prosecutorial discretion."
In Northern Ireland there have been very few prosecutions of members of the security forces involved in killings. Among the many controversial decisions was the decision not to prosecute despite a recommendation to do so in the Stalker-Sampson report on a "shoot-to-kill" policy.
This revealed the subordination of the DPP in Northern Ireland to the British Attorney General, who at the time was Sir Patrick Mayhew. The report recommended that 11 members of the RUC be prosecuted for seeking to pervert the course of justice, but Sir Patrick ruled that there would be no prosecutions on the grounds of "national security".
There has been no similar controversy here, but earlier this week Vincent Browne raised the case of the killing of John Corcoran, of which the gardaí were allegedly warned by an IRA informer, Sean O'Callaghan. Nothing was done to avert the killing, making the State culpable, if its agents knew about it.
The DPP, either here or in the UK, can only prosecute on the basis of a file. That file is compiled from a police or Garda investigation. If the members of the police do not want a prosecution, they can ensure that very little evidence is gathered implicating either their agent, or the agent's handlers, in the alleged crime. If this happens, where is the evidence to support a prosecution going to come from?
Ultimately, the questions raised by the activities of double agents are questions of political morality, rather than law. If the State does not itself uphold the law, what message is it sending its citizens?