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,
