Big Boys' Rules

by Mark Urban

  A train of events had begun which were to claim a life and see SAS men brought to trial. Senior police and Army officers decided that the SAS should stake out the graveyard, in case terrorists returned to the cache.

  Four SAS men were sent to cover the graveyard. They had split into two groups of two, each in what the Army calls an ‘Aggressive OP’. The mission in such an observation post is to wait and see what happens but to open fire if the circumstances justify it. Corporal Alan Bohan and Trooper Ron Temperley occupied the OP closest to the gravestone.

  Early the next morning, 11 July 1978, Con and his two sons, John and Harry, set out to work the fields. A couple of hours later John Boyle left his father and brother working in the fields and curiosity took him back to the graveyard.

  At about 10 a.m. Con Boyle heard shots from the graveyard. He went across, joined by his son Harry. As they approached two soldiers with blackened faces and camouflage clothing appeared and threw them to the ground. Con remembers one of the soldiers saying, ‘The other bastard’s lying dead.’ Initially the soldiers were in high spirits, but their mood soon changed.

  John Boyle the teenager who’d found the cache, had been shot, felled by SAS bullets. A few minutes too late a detective from Ballymoney police station rang the farmhouse, telling Mrs Boyle that under no circumstances should anyone return to the graveyard. Shortly after the soldiers realized what had happened they were taken away by helicopter. Other troops came to secure the area.

  The incident grew into a public relations disaster for the Army. Matters were compounded by the Lisburn press office’s release of inaccurate statements about what had happened in an attempt to make the soldiers’ actions seem justifiable.

  At first journalists were told that an Army patrol had stopped three terrorists. In fact the Boyles had no connection with any paramilitary group and it would be difficult to imagine how any Catholics finding an IRA arms cache could have behaved more responsibly. It was then suggested that John Boyle had pointed a loaded rifle at the soldiers. The Army press statement said, ‘The Armalite was subsequently found with its magazine fitted and a round in the breech ready to fire.’ In fact there were no bullets in the gun. There were claims that the soldiers had shouted a warning, but later admissions that it was impractical to do so.

  The RUC was furious with the Army, which it considered to have behaved in an irresponsible manner, and RUC press officers hinted to journalists that the Army’s initial version of events was not true. The police backed a move to put the SAS men on trial for murder. So began a remarkable prosecution – the only one in Ulster so far to have involved soldiers from the SAS.

  Corporal Bohan and Trooper Temperley, the men who had fired the shots, found themselves standing in the dock in front of Lord Lowry, Ulster’s Chief Justice. The Army was anxious to protect secrets of the SAS operation. Its attempts to prevent the court learning the soldiers’ identities verged on the farcical. At first it would provide only the soldiers’ initials. Then, on their first court appearance, the Army put five other men into the box with them with the idea of confusing people. The judge, finding the idea of seven men standing in the dock throughout the case to be unacceptable, insisted that only the two accused should stay there.

  The twenty-eight-year-old Corporal answered for both men’s actions. He said the RUC had told them the weapons had been found by a ten-year-old boy. The soldiers had been sent there to apprehend whoever attempted to recover the weapons but the suspected terrorist had turned and pointed the weapon directly at them, he added.

  There was a great deal of discussion during the case about whether the three bullets which had killed John Boyle had been fired from behind, as he stooped to pick up the weapon, or whether the fatal shot had entered the front of his head. If it could be proven that they had come from behind, the SAS Corporal’s version about Boyle turning to face him would have been shown to be untrue. In the end, Lord Lowry accepted evidence that the bullet had entered the front of John Boyle’s head, meaning that he had indeed been looking towards the soldiers when the shot was fired.

  But in many other respects the judge cast doubt on the soldier’s statements. Corporal Bohan’s suggestion that the gun had been pointed at him was ‘self-justificatory and, in the context of the Boyle family’s reputation, untrue’. Although the Corporal said the plan was to capture the terrorist he was vague and unsatisfactory when questioned as to the details of the plan.

  Lord Lowry pointed out that if the soldiers had inspected the weapon they would have seen that, unloaded, it could pose no threat to them. If Corporal Bohan had thought the deceased was a terrorist, ‘One wonders why he let him get the rifle into his hands, if the rifle might have been loaded.’

  The judge said Corporal Bohan was ‘an untrustworthy witness, eager to make unmeritorious points’. He said in his summing-up, ‘Nothing would have been easier with better planning than to capture the deceased alive, always assuming that to be the primary object.’ But the judge, although he said quite plainly that Corporal Bohan had told lies, could not find them guilty of murder. The prosecution was not able to prove beyond reasonable doubt that the soldiers had gone there with the intention of killing whoever came into the field.

  The case provided an enormous opportunity for Sinn Fein because it appeared to confirm the view of many Irish people that the SAS were trigger-happy thugs who flouted the law which stipulated that soldiers could use only such force as was reasonable and necessary to prevent a crime. And it wasn’t just committed Provisionals who came away with this impression. The attitude of John Boyle’s father, reflecting on the incident years later in an interview with the Belfast Telegraph, is revealing. He said he did not feel bitterness towards the SAS men because: ‘They were doing their job, which was to kill whoever entered the graveyard. That is what the SAS are employed to do.’

  The acquittal of Corporal Bohan and Trooper Temperley, like the case of the SAS men released after crossing the border into the Irish Republic, had a deeply harmful effect on the perception of the Regiment among a broad band of political opinion in Northern Ireland, not just committed republicans. Although the Army had grudgingly accepted that the men should stand trial in the first place, the cases convinced many in the legal establishment that it would be very hard ever to get a conviction against the undercover soldiers since vital facts could be withheld from the court. One barrister, commenting on the judge’s summing-up in the Boyle case, told me: ‘The language he used about Bohan was so derogatory that in any case not involving the Army, I would have thought it virtually impossible not to have had a conviction in that court.’

  Bohan and Temperley returned to regimental duty after the trial. Colleagues say the men were changed by the experience and felt deep regret at the teenager’s death. The Army did not regard the Boyle incident as a blemish on the SAS mens’ records. In fact, I was able to establish while researching this book that in 1990 – thirteen years after the death of John Boyle – both Bohan and Temperley were still serving in frontline squadrons of 22 SAS.

  *

  In September 1978 the mistakes continued when the SAS shot dead James Taylor, a Protestant. He had entered a field near Lough Neagh carrying a shotgun, while looking for game. He had no connection with any paramilitary group.

  There was a further confrontation between SAS soldiers and a member of the IRA on 24 November 1978. Patrick Duffy, a fifty-year-old auxiliary in the IRA had gone into an unoccupied house in Maureen Avenue, Londonderry. It is likely that Duffy was a member of the Derry Brigade quartermaster’s staff. A variety of weapons, including several rifles and bomb-making equipment, had been placed in a wardrobe in a bedroom on the first floor of the house.

  An Army surveillance operation had been mounted to keep the cache under observation. While rural operations allowed the soldiers to take cover in a nearby hedgerow or ditch, the built-up nature of the area had posed particular problems for the SAS men, who had gone into position in the house nearly two days before Duffy appea
red. Two soldiers were in another bedroom on the first floor of the same house, another was hiding in the attic. The soldiers entered the house in civilian clothes. Once inside they opened holdalls containing camouflage uniforms and a variety of weapons. One had an Armalite, another a 9mm Sterling sub-machine-gun and the third an American-made Ingram 9mm machine-pistol. All three had attached torches to their weapons, a technique used to assist aiming in darkness or low light. A back-up team waited in a nearby street in a red van.

  At about 9.20 p.m. on 24 November Patrick Duffy pulled up outside the house. His daughter and her baby waited in the car as Duffy climbed the stairs. He approached the wardrobe. Soldier B says he shouted a warning and began to move forward from the room at the rear of the house to the front room where Duffy was standing. Soldier B said that Duffy ‘spun round to face me bringing his right hand up’. The two SAS men opened fire with their machine-guns. Duffy was hit by at least a dozen bullets and fell mortally wounded. Duffy’s daughter heard the shots, moments later the red van raced up to the house and she watched as the back-up team, dressed in a mixture of civilian and military clothing, rushed into the house. She only found out later that her father had been shot.

  Although the building contained an impressive horde of weapons, Duffy himself had not been armed as he climbed the stairs. Edward Daly, the Roman Catholic Bishop of Derry, commented: ‘The shooting dead of a person merely because that person enters a house or place where illegally held arms or explosives are stored is quite unjustifiable.’

  As more facts emerged about the incident, it became apparent that, as in many other cases involving special forces, the SAS men had intelligence which they did not share with the later inquest court. Their commander stated that he had ordered his men to enter the premises, search it and keep any arms found under observation. But statements by the soldiers indicated that the weapons had been placed in the wardrobe nearly twenty-four hours after they had taken up position in the house. No explanation was given as to why they had not attempted to apprehend the men who placed the guns there, nor why they had not left after finding no weapons there in the first place. Clearly the men were sufficiently confident of their intelligence to know that it was worth staying in the house.

  Forensic evidence cast doubt on the soldiers’ claim to have shot Duffy because he spun round. Duffy’s autopsy report indicated that he had been shot from a few feet away and that the bullets had entered his body ‘from his left and or behind and to his left’. This was consistent with him having been shot as he stood facing the wardrobe, with his left side and back towards the soldiers, rather than having turned towards them.

  This incident did nothing to dispel the impression that the SAS were not subject to the normal legal restraint of using minimum force, and tended instead to shoot first and ask questions later. SAS soldiers had killed three uninvolved bystanders in six months. As 1978 drew to a close the practice of using intelligence to set up lethal confrontations between special forces units and suspected republican terrorists came under increasingly critical scrutiny, particularly at RUC headquarters, Knock. Some of the personalities in the security forces hierarchy who had encouraged the use of the SAS in such operations had little time left to serve in Ulster. Given both the public relations penalties and the legal repercussions of an incident like the Dunloy shooting of John Boyle, it was time for a rethink.

  7

  Undercover Soldiers and the Law

  The conflict in Northern Ireland was complicated by the uneasy accommodation between two cultures, that of the soldiers on the ground, and that of the senior officers and politicians, concerned to maintain the appearance of a rule of law. A soldier is trained to think in terms of doing battle with an enemy and attempting to gain victory by eliminating as many of his foes as possible. During the conflicts that preceded independence in some of Britain’s colonies, soldiers had often been able to dispatch ‘restless natives’ with few questions asked. However, on the streets of Northern Ireland they found themselves constrained by the principle of the minimum use of force which had evolved during centuries of mediation between the police and courts.

  The belief that the problem could be solved by shooting IRA ringleaders is a common one in the Army. ‘We’ve all basically got the same idea of how we could end this, but world opinion wouldn’t stand for it’, as a sergeant serving in Ulster puts it.

  For all the bar-room bravado it is apparent that in recent years the average soldier has had little opportunity to do battle with the Provisionals. The information most likely to lead to a confrontation is jealously guarded by the secret élites of the RUC and Army. For the ordinary member of the ‘Green Army’, rushing across the streets of Northern Ireland, the everyday threat is from bricks, spit and abuse. Training emphasizes the need on the part of troops on patrol for tolerance, because over-reaction to taunts can produce incidents which play into the hands of the IRA, feeding the nationalists’ stereotype of the British Army as a brutal occupying force.

  The soldiers and police in Ulster are bound by the same rules on the use of force as any other citizen. In 1975 a soldier shot dead Patrick McElhone, a farmer with no paramilitary connections, when he tried to run away. In acquitting the soldier, the judge said he had reasonably believed McElhone to be a terrorist. He also said Ulster counted as a ‘war or semi-war situation’. The House of Lords upheld the judgement saying that the soldier had been right to open fire if he thought the person was a terrorist because he might ‘sooner or later’ have become involved in an act of violence.

  The McElhone judgement was a landmark, providing a definition of what was reasonable force that caused alarm among many lawyers, civil rights activists and ordinary citizens. It effectively allowed people to be shot on sight as long as the soldier concerned could argue later that he or she had thought his or her target was a terrorist.

  In practice the Northern Ireland Director of Public Prosecutions, the person responsible for deciding whether to press charges against people, including soldiers, involved in such incidents, found this concept to be too broad. The SAS men who shot John Boyle were charged with murder despite the McElhone judgement. Several years later RUC men were put in the dock after the killings which prompted John Stalker’s ‘shoot to kill’ inquiry. The law places the responsibility on the soldier who pulls the trigger, rather than the officers who have gathered the intelligence and ordered him there.

  The apparent conflict between the law of minimum force and the behaviour of some soldiers and police officers is at the root of allegations of a ‘shoot to kill’ policy in Northern Ireland. There are three broad dimensions to the question of whether a ‘shoot to kill’ policy exists:

  • Why are the security forces at the incident in the first place? If it is as a result of foreknowledge of a terrorist attack there may be ways to stop it other than through armed confrontation.

  • Once a confrontation between soldiers or police and terrorists begins, is it necessary for firearms to be used? This includes the important matter of whether the terrorists are armed and whether they are warned that force is about to be used.

  • Last, once the soldiers or police have decided to open fire, how are the bullets aimed? Are they told to fire at a person’s vital organs and to keep firing until the target is out of action, usually permanently, or are there other ways to use a weapon?

  On this last point, that of shooting to kill in the most literal sense, there has never been any real question that both police and Army firearms training emphasizes the need to use a weapon in just this way, once the firer finds himself or herself in great danger. So it is on the other two elements of the ‘shoot to kill’ controversy that inquiries have normally centred.

  The Army manual Counter-Revolutionary Operations says: ‘A person, whether soldier or civilian, may lawfully use such force as is reasonable in the circumstances in the prevention of crime and in making lawful arrests.’ This echoes the civil law as embodied in the Criminal Law Act (Northern Ireland) 1967.r />
  From 1972 the Army issued guidance to its soldiers as to what reasonable force actually was, in the form of a Yellow Card. These were given to every soldier, some being taped to rifle butts. The Card, amended in 1980, stressed that, ‘Firearms must only be used as a last resort.’ It told soldiers that they must challenge somebody unless an engagement had already begun or if doing so ‘would increase the risk of death or grave injury to you or any other person’. Opening fire is correct only if the person ‘is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger.’

  While senior officers are always at pains to stress the Army’s adherence to the law, attitudes to the Yellow Card and the principles of minimum force which it embodies tend to vary lower down the chain of command. According to one officer, ‘The Yellow Card rules are typical of the sort of things which are repeated so often in the Army that they become meaningless.’

  Soldiers who have been involved in operations in Ulster often consider the rules to be unrealistic. In particular, many believe that the idea of first challenging armed terrorists is a lawyer’s nicety which can be applied in the real world only at grave risk to themselves. They sometimes cite the case of Lance-Corporal David Jones as evidence of this.

  Late one night in March 1978 Lance-Corporal Jones and another soldier were in an OP in the Glenshane Pass area of County Londonderry. The troops saw two armed men wearing camouflage clothing appear. The men apparently had a flash with the word ‘Ireland’ sewn on to their combat jackets. Lance-Corporal Jones stood up and challenged them, believing they could be members of one of the British Army’s UDR units. But they were Provisional gunmen and they opened fire. Jones, though mortally wounded, returned the fire, injuring one of the terrorists, Francis Hughes. The other man escaped. Hughes went to prison where he became one of the H-Block hunger strikers.