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.
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
