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.
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.
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,
