Big Boys' Rules

by Mark Urban

  Both Army and RUC press officers mention this incident when seeking to explain security forces behaviour on other occasions where warnings may not have been given. Three Sunday Times journalists, in their book Ambush, claim that Lance-Corporal Jones was a member of the SAS and that the incident had a ‘lasting psychological impact on the Regiment’. The authors argue that Lance-Corporal Jones’ fate went some way to explaining the actions of SAS men in Gibraltar ten years later.

  It is worth remembering, however, that Lance-Corporal Jones appears to have issued the challenge not because he had a benign view of how terrorists would behave but because, as a professional soldier, he did not want to open fire on what he thought might be friendly forces. Whether or not the Lance-Corporal’s death had a profound impact on the SAS, Jones was not a member of this organization. His name does not appear on the plaque on the clocktower at Hereford where the names of other members of 22 SAS who have fallen are inscribed. Lance-Corporal Jones was listed in his death notice in Pegasus, the journal of the Airborne Forces, as belonging to ‘3 PARA’. It is likely that he was a member of the Close Observation Platoon of the 3rd Battalion, the Parachute Regiment, which was serving in Ulster at the time.

  Many soldiers who have been involved in undercover stake-outs believe it is simply not practical to issue challenges. One describes the mood on operations: ‘You have to remember the fear. If someone has been waiting all night in an ambush they are going to be shitting themselves. If someone appears in the shadows who looks like they are carrying a gun they are not going to ask a lot of questions, they are going to let them have it.’

  Officers who were interviewed for this book, particularly those who had been involved in ambush-type operations, consider there to be an unspoken bargain. ‘I always told my soldiers that nothing would happen to them so long as they could justify their actions by the Yellow Card,’ says one. The implication is that the justification for opening fire can be pieced together afterwards.

  An SAS officer argues that the soldier fighting terrorism must be given extra leeway compared to the ordinary citizen: ‘You are putting a hell of a lot of responsibility on young men to make split-second decisions. The armed forces have got to have a “fudge factor”. Do you penalize Soldier A who may have made a mistake? If you start prosecuting soldiers in dubious situations, you will start causing problems for yourself.’

  The difficulties he envisages are that soldiers will not be prepared to take the same risks. Certainly there have been occasions where both police officers and soldiers in Northern Ireland have objected to operations on the grounds of the risks involved. The ‘bargain’ between soldiers and the British Army hierarchy, that it will resist prosecution, cannot always be maintained. In some cases, usually those where the greatest errors have been made like the Boyle incident, or where there is great political sensitivity, undercover soldiers may find themselves in the dock.

  A fear of prosecution and dislike of red tape made Northern Ireland an unpopular place with some SAS men. ‘Soldier I’, the SAS sergeant who published his memoirs, wrote: ‘With its sinister streets and alienated population, Belfast was no place for highly trained special forces operators. This was a job for armed police – switched-on operators who knew the law and could pick their way through the minefield of regulations.’

  Many SAS soldiers sum up their attitude to the use of lethal force in situations like Ulster saying: ‘Big boys’ games, big boys’ rules.’ In other words, any IRA man caught with a rifle or bomb can expect to be shot, whatever the Yellow Card may say. The saying is, according to a member of the Regiment, their ‘justification for killing people’.

  Although the progressive amendment of laws in Northern Ireland has not gone far enough for many special forces soldiers, it has aroused criticism in liberal quarters. Even before the Troubles, there was a separate legal tradition in Ulster. Coroners’ Courts had lost the ability to deliver a verdict of unlawful killing at inquests some ten years before troops went on to the streets of Northern Ireland in 1969. Many other changes were introduced once the Troubles had started. Internment without trial was permitted for a limited period from August 1971. Then, in 1973, juries were dispensed with in terrorist trials, leaving only the judge in what became known as Diplock courts, a step taken largely because of fears of intimidation. Juries are now in use only at inquests and in defamation proceedings.

  Some terrorist-related legal measures were adopted throughout the United Kingdom. The traditional right of a suspect to be charged or released within forty-eight hours was changed under the Prevention of Terrorism Act (first passed in 1974) to allow detectives three or seven days to prepare a case against alleged terrorists. However, most changes were confined to Northern Ireland itself.

  The concepts of the ‘bargain’ and ‘fudge factor’ are the result of realism about the courts, as well as loyalty between members of the special forces. Officers know it is highly unlikely that the juryless trial courts in Northern Ireland will convict a soldier for murder, since they are bound to make allowances for the person who has killed in the line of duty. The Army argues that in any case it is highly undesirable to allow prosecutions to go ahead: they are unlikely to result in convictions; they damage the soldier’s morale in the process; and they fail to satisfy nationalists who believe the legal proceedings have been a whitewash.

  Many officers are cynical about the legal process, often as a result of seeing men and women whom they believe to be guilty of terrorist crimes walk free or receive light sentences. These officers regard many of the lawyers representing suspects or the families of people shot dead by the Army as unofficial agents of the IRA. They suggest, for example, that a lawyer may agree to pass a message from a terrorist to his commander, or might use cross-examination of a security forces witness in an attempt to probe whether an operation had resulted from a leak within the IRA. Although specific allegations have been made to me, they remain uncorroborated and concern no more than a small proportion of those undertaking such legal work. Army sensitivities about the courts increased with the trend towards more covert operations. One senior officer who served at Lisburn in the late 1970s remarks, ‘If you go into undercover warfare, you know that you will never be able fully to explain that side of life.’

  This created pressure for changes in the law designed to protect undercover soldiers, their informers and the technical means used to gather information. General Frank Kitson, commander of the Army’s 39 Brigade in Belfast early in the Troubles and one of its theorists of counter-terrorist operations, argues: ‘Everything done by a government and its agents in combatting insurgency must be legal. But this does not mean that the government must work within exactly the same set of laws during an insurgency which existed beforehand.’ Apparently following Kitson’s advice, the Army went to some lengths during the Boyle case to prevent the court learning the identity of the SAS men.

  SAS shootings, like others, were followed by inquests, so the government took measures to change inquest procedures. In 1980 an amended set of rules for coroners in Northern Ireland was introduced: inquests in Ulster could no longer return an open verdict where coroners believed that someone other than the deceased person was responsible for his or her death, but instead were directed simply to issue ‘findings’ saying when, where and how the person had died. Lord Hailsham, then Lord Chancellor, had described the open verdict in Northern Ireland as a ‘potent source of difficulty’.

  With the introduction of ‘findings’ rather than verdicts any decision to prosecute members of the security forces would rest with the Director of Public Prosecutions – and would be based on a police investigation. The possibility of an independent-minded coroner influencing such a decision was removed.

  The 1980 change was part of a general review of procedures recommended for England and Wales in the Broderick Report. However, it was put into effect only in Ulster: inquests in England and Wales always had been and can still return open verdicts and verdicts of unlawful killing.<
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  The new rules also removed from coroners in Northern Ireland the obligation which still applies to their colleagues in England or Wales to call everybody considered ‘expedient’ to the death. The 1980 rules meant that soldiers who had carried out a fatal shooting could no longer be compelled to attend. And, unlike the rest of the United Kingdom, coroners’ juries in Northern Ireland are picked by the police.

  The effect of these rules was that the Army and RUC were able to submit their version of events with the expectation that there would be little scrutiny by the jury, particularly of those who had carried out the operation. After the confusion following the shooting of Peter Cleary in 1976 (see chapter one), about how the SAS should be dealt with after such an incident, Lisburn put into place extensive machinery to protect its people.

  Officers of the Army Legal Service were specially trained in the law of minimum force and it became routine for them to meet soldiers before interview by the CID, which has the responsibility for following up fatal incidents, and to remain with the soldiers throughout their interviews.

  Soldiers’ statements given to courts were therefore prepared in consultation with Army legal officers on a routine basis. The need to satisfy the court that the amount of force used had been reasonable and necessary, resulted during the 1980s in statements which sounded remarkably similar from one incident to another, despite the obvious confusion that surrounded some of the deaths.

  At the inquest into the 1978 Ballysillan Post Office depot shooting, held two years after the event, the soldiers had to justify the killing of William Hanna, the local resident who was killed on his way home from the pub. One of the two SAS men who had approached Hanna told the inquest, ‘Suddenly he moved in a twisting motion and we thought he was going for a gun so we both opened fire.’

  Patrick Duffy, the unarmed IRA man killed in Londonderry in November 1978, had appeared to reach for a weapon, according to the deposition of Soldier B at an inquest in 1980. Duffy had ‘spun round’ and brought his right hand up, the soldier claimed.

  At the inquest into the shooting of three unarmed IRA members in Gibraltar in 1988 the SAS soldiers who carried out the shooting, who gave their evidence in person rather than in the written form which has become the norm in Ulster inquest courts, also referred to turning and reaching movements, assumed to be attempts to grab either guns or a remote control device for a bomb. Soldier A said Danny McCann moved his right arm ‘aggressively across the front of his body’. Soldier C related that Sean Savage, another of the terrorists, ‘spun round very fast’, and ‘went down with his right arm to his jacket pocket’. Hanna, Duffy, McCann and Savage all seem to have had the urge to reach for weapons which they were not carrying.

  Attempts to keep the whole truth from courts were often motivated by a desire to protect prized informers. But there was another, more basic factor at work. Senior officers and politicians were aware of the importance of maintaining an appearance of the rule of law. Some believed that the best way to do this was to soothe nationalist unease after an incident by allowing inquests or outside police inquiries to proceed but to limit the damage which could be done by restricting the information given to outsiders attempting to scrutinize sensitive operations. But the principle of maintaining an appearance of legality, so important in undermining support for terrorism, is not apparent to many soldiers.

  One NCO who served in intelligence in Ulster says, ‘I do not object to capital punishment or this policy of shooting without warning at armed terrorists, I just wish the government had the balls to admit it.’ He reveals an attitude to shooting an armed terrorist which would never be endorsed publicly by the Army. Again, the ‘policy’ he alludes to is that of ‘big boys’ games, big boys’ rules’, not a code of conduct publicly recognized by the government. The comments of an intelligence officer who said he provided information for this book partly because, ‘I can’t see why we can’t admit that we are shooting these terrorists,’ underline the point.

  Both the officer and NCO were referring to ambushes mounted by special forces, usually on the basis of foreknowledge supplied by the intelligence services and involving a small, highly trained cadre of soldiers. They – and soldiers generally – would accept that walking up to a known IRA member in the street and gunning him or her down in cold blood is unacceptable.

  Senior Army officers understand the culture of the soldier who wants to open fire immediately if he sees a suspected terrorist during an operation, and the pressures which may lead him to do so in error when he is lying in wait in a lonely field late at night. But they also appreciate the need to control the use of force and to avoid publicly embarrassing ministers. ‘At the end of the day,’ says one officer who held a senior position at Lisburn, ‘what it is all really about is public relations.’ Manipulating the perception of the nationalist community about whether or not the security forces act within the law is one of the keys to the republican movement’s effort to maintain its support. In this context, the Army in Northern Ireland has not just been concerned to put the best frame on potentially embarrassing incidents, but has also attempted at various times deliberately to mislead journalists.

  During the 1970s the Army’s Information Policy Unit was responsible for disseminating disinformation about the IRA and loyalist paramilitary groups. The unit was also involved in printing fake leaflets and posters intended to discredit these organizations. It is not illegal to lie to the press, something which senior Army and RUC officers have at various times pointed out in private conversations.

  Colin Wallace, the civil servant who served in the Army’s Information Policy Unit, later made allegations about Army press officers co-operating with MI5 to spread smear stories about leading politicians, including those connected to terrorist groups in Ulster, as well as members of the Labour government of the day who had become unpopular with senior security forces officers. In January 1990 the government set up an independent legal inquiry under the Queen’s Counsel David Calcutt into allegations that Wallace had been dismissed from his job unfairly as part of a cover-up. Calcutt found that Wallace had been unjustly dismissed, recommending compensation, and went beyond the inquiry’s terms of reference in revealing that the information officer’s appeal against his dismissal to a civil service board had been rejected following representations to the board from officials of the Ministry of Defence.

  Despite the Calcutt verdict, Whitehall rejects claims that Wallace was framed for a killing of which he was found guilty and convicted of manslaughter in 1981. The issue of just who was smeared by Lisburn’s ‘black propaganda’ unit in the 1970s remains more complex. The government continues to reject Wallace’s allegation that intelligence officers in Ulster conspired to smear Harold Wilson, the Prime Minister of the day. But it admits that such activities were carried out against people associated with extremist politics in Ulster.

  In the parliamentary answer which announced the setting-up of the Calcutt inquiry, Archie Hamilton, minister for the armed forces, said: ‘It has not, since the mid 1970s, been the policy to disseminate disinformation in Northern Ireland in ways designed to denigrate individuals and/or organizations for propaganda purposes.’

  By referring to policy from the mid 1970s, this statement, constructed in meticulous civil service fashion, implies that the kind of information-gathering which Wallace says was being undertaken by MI5 for use against loyalist extremists suspected of sexual abuse at the Kincora boys’ home could indeed have been going on in the early 1970s, although Whitehall will not confirm it. It also leaves open the possibility of disinformation for purposes other than that of denigrating ‘individuals and/or organizations for propaganda purposes’. Two days later during a debate on the Wallace affair, Tom King, the Secretary of State for Defence and previously for Northern Ireland, was happy to specify such other purposes. He told the Commons that disinformation was still being used in Ulster ‘where it is necessary to protect lives and for sound and absolutely honourable security reasons’.


  Although the circulation of versions of events which were known to be false, as after the Ballysillan shooting, was to become routine after operations by police and Army undercover units, disinformation activities of the kind carried out by Colin Wallace certainly did become rarer, if they did not end altogether, during the late 1970s and early 1980s. This resulted partly from the growing role of the police in directing public relations strategy. Whereas Army commanders in the early 1970s had regarded information as a legitimate weapon, particularly in trying to stir up factional rivalries within paramilitary groups, the philosophy at Knock was different.

  The shift in the Army towards a more sincere and thoroughgoing acceptance of Police Primacy in the early 1980s was to be accompanied by the emergence of a closer accord on public relations. It was decided that the best way to proceed was to get the conflict out of the headlines. Attempts to plant disinformation about politicians and the general security situation were reduced in the belief that no publicity was good publicity.

  PART TWO: 1979–1982

  8

  A Change of Mood

  In late 1978 the Army reviewed its policy on the deployment of SAS troops and ended, for the time being at least, the use of these highly trained troops for mounting ambushes. This followed intensified scrutiny of and gathering unease about the conduct of SAS soldiers in undercover operations, on the part both of the public and of the RUC. From 1976 to 1978 the SAS had killed ten people. Seven of them were IRA members, but three were mere bystanders. Even some of those at Lisburn and Knock who believed that the SAS could legitimately administer an unofficial brand of capital punishment found the Regiment’s propensity for ‘miscarriages of justice’ unpalatable.