British policy in Northern Ireland: From counter-insurgency to counter-terrorism 1972-1975

1

British policy in Northern Ireland: From counter-insurgency to counter-terrorism

1972-1975

By

Kealy Peachey

Canterbury Christ Church University

Thesis submitted

For the degree of MA by Research

2014

2

TABLE OF CONTENTS

INTRODUCTION ........................................................................ 3

THESIS ........................................................................................ 3

BACKGROUND .............................................................................. 5

LITERATURE ................................................................................ 7

British COIN ........................................................................... 7

Morality of Justified Torture ............................................... 12

INTELLIGENCE......................................................................... 19

THE PARKER REPORT ........................................................... 24

THE TECHNIQUES ...................................................................... 26

THE VALUE OF THE TECHNIQUES ................................................ 34

SHOULD THE TECHNIQUES HAVE BEEN EMPLOYED? ..................... 36

THE GARDINER REPORT ....................................................... 46

EXISTING AND PROPOSED OFFENCES ........................................... 54

POWERS OF THE SECURITY FORCES ............................................ 61

DETENTION ............................................................................... 76

SPECIAL CATEGORY PRISONERS .................................................. 88

CONCLUSION ............................................................................ 96

ABBREVIATIONS ................................................................... 101

BIBLIOGRAPHY ..................................................................... 103

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Introduction

“Successful counter-insurgency operations cannot be fought

within the law and without high levels of coercion and the

abuse of human rights.”1

Thesis

In 1969 British troops were deployed to Northern Ireland to assist the Royal Ulster

Constabulary (RUC) with evolving hostility between the Catholic and Protestant

communities. Initially intended to be a peace-keeping role between the two warring

communities, instantaneously evolved into a counter-insurgency (COIN) campaign,

predominantly against the Catholic Republican paramilitary organisation; the Irish

Republican Army (IRA). The British Army’s ‘Operation BANNER’ in Northern Ireland

became the longest running COIN campaign in its history, spanning almost three

decades from 1969-1998. It was not only the most prolonged operation but also one

of the most disputed and controversial COIN campaigns Britain has ever dealt with;

culminating in Britain being found guilty of ‘inhuman and degrading treatment’ by

the European Court of Human Rights (ECHR). To put the Northern Ireland conflict

into context, the death toll exceeded 3,700 and as Paddy Hillyard explains, it is the

equivalent in per capita terms to the loss in the USA of five twin towers for each of

1 Paul Dixon, “British Counter-Insurgency from Malaya to Iraq,” The Journal of

Strategic Studies 32, no. 3 (2009): 371.

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the 30 years. In addition, John Newsinger states, that if the ratio of fatalities to

population were to be reproduced for the United Kingdom as a whole there would

by now have been some 100,000 people killed. Phrasing it differently again, as a

result of political violence in Northern Ireland since 1969, more people have died

than the rest of the European Community put together over the same period.2

This thesis aims to illuminate the commendable aspects of British COIN and counter-

terrorism (CT) in Northern Ireland, whilst subject to political restraints, during the

most challenging years; differing from the generic view that it was a complete

failure. The main body of this thesis is split into two chapters. The first chapter will

analyse the Parker Report, delving extensively into a particular controversial policy

enacted by Britain, interrogation in depth. This consisted of five controversial

techniques: sleep deprivation, hooding, wall-standing, white-noise and a bread and

water diet. This chapter will aim to see the value of the techniques in question

against whether the techniques should have been employed, morally and

democratically. The second chapter, the principal focus of this thesis, examines the

Gardiner Report, which gives a more general look at British COIN policy between

1972 and 1975. The question that will be answered is whether policies needed to

deal with terrorism can ever effectively accommodate human rights; if not, should

individual human rights prevail? This thesis will argue, no. To conclude, this thesis

will demonstrate the shift from COIN strategy to that of CT and argue that despite

apparent misjudgements, the Army’s endeavour in Northern Ireland was required.

2 John Newsinger, British Counter-Insurgency (New York: Palgrave, 2002).

5

Background

The partition of Ireland in 1921 condemned Northern Ireland to prevail out of

violence, conventionally between Catholic Nationalists who wanted a united

Republican Ireland and Protestant Unionists who identified themselves as British and

therefore desired to maintain their link with Britain. As a result, inter-communal

antipathy was embedded in Northern Ireland’s society long before 1969.

Historically, the Ulster dispute had been one over sovereignty and identity, with an

independent Ireland challenging British sovereignty in any part of Ireland as a denial

of the right to Irish national self-determination.3 The Catholic minority, which

constituted a third of the population, was subject to rampant discrimination from

the Unionist regime in areas of employment, housing, and electoral voting, which

only antagonized an already hostile atmosphere. In 1969, The Northern Ireland Civil

Rights Association (NICRA) devised a series of peaceful marches campaigning against

this discrimination, which

“sparked off counter-demonstrations led by fundamentalist Protestant preacher the

Revd Ian Paisley, whose oratory sent crowds into frenzied hysteria when civil rights

marches passed through predominately Unionist areas.”4 This eventually led to civil

unrest and fierce rioting. On 14th August 1969, the Home Secretary James Callaghan

3 Thomas Hennessey, The Northern Ireland Peace Process: Ending the Troubles

(Dublin, Gill & Macmillan, 2000), 1. 4 Aaron Edwards, The Northern Ireland Troubles, Operation Banner 1969-2007

(London: Osprey, 2011), 7.

6

deployed troops to provide military aid to the civil power, upon request from the

Northern Ireland government.5

Initially, the Catholics, who regarded the troops as their protectors, against the

Protestants, welcomed the British Army.6 This ‘honeymoon’ period soon came to an

abrupt end after the Army assisted Protestant Orangemen to march through a

Catholic area, prompting the Catholic community to believe the Army had a biased

disposition towards the Protestants. This resulted in the Ballymurphy riots on 3 April

1970, the first major clash between the Army and the Catholic community. After

attacks from the IRA the British Army found itself suddenly thrust into a COIN

campaign, for which it was not prepared for. As Aaron Edwards clarifies, little

consideration was given to formulating a coherent strategy beyond providing short-

term assistance to the local government administration.7 Consequently, as this

thesis explains, with no clear strategy, the Army were forced to draw upon tactics

they had previous success with in colonial campaigns, such as Aden (1963-67),

Malaya (1948-60) and Kenya (1952-60). These tactics were considered misguided

and inappropriate for internal security, but that did not signify that British COIN

failed in Northern Ireland altogether.

5 Ibid., 9.

6 Michael Dewar, RGJ, The British Army in Northern Ireland (London: Guildford,

1985), 39. 7 Aaron Edwards, “Misapplying Lessons Learned? Analysing the Utility of British

COIN Strategy in Northern Ireland 1971-7,” Small Wars & Insurgencies 21, no. 2

(2010): 303-330.

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Literature

British COIN

British COIN has significantly changed in the course of the twentieth century. The

British Army is personified as a moderate and diplomatic retaliation force rather

than a striking one. Rod Thornton who notably was himself in the British Army and

served in Northern Ireland, in Historical Origins of the British Army’s Counter-

insurgency and Counter-terrorist Techniques, presents a worthy depiction of British

Army tactics by asserting the use of ‘British values’ which use the minimum force

necessary to restore order.8 January 30th 1972, proved to be a pinnacle moment in

British COIN in which the world would perceive the Army to be a brute force. NICRA

planned a peaceful march against British policies such as internment and the main

aim of the day for the Army was to round up selected ringleaders that often

accompanied illegal civil rights marches.9 What was supposed to be a routine

operation for the army, resulted in 1 Parachute Regiment opening fire and killing 13

unarmed civilians. This event, which would infamously be known as ‘Bloody Sunday’

proved to be one of the most counter-productive COIN incidents for the Army during

the Troubles. After ‘Bloody Sunday’ there was a surge in recruitment for the IRA and

an escalation of republican violence.10 Both Thornton and Ian Beckett believe the

8 Rod Thornton, “Historical Origins of the British Army’s Counter-Insurgency and

Counter-Terrorist Techniques,” (Lecture, Geneva, 2005),

http://kms1.isn.ethz.ch/serviceengine/Files/ISN/105220/ichaptersection_singledocum

ent/c6a5a351-3c5b-414b-b6b5-fdb529100d8d/en/02_Thornton.pdf. 9 Aaron Edwards, The Northern Ireland Troubles, Operation Banner 1969-2007

(London: Osprey, 2011), 38. 10

F.J.M. Madden, The History of Ireland (London: Cox &Wyman, 2007), 197.

8

British Army, regardless of horrendous outbursts like the Amritsar Massacre (1916)

and ‘Bloody Sunday’, have on the whole conducted themselves more humanitarianly

than most other armies; being less aggressive especially when compared to the

United States Army.11 To illustrate this more concretely, in Afghanistan, British

troops when in an army helicopter, are not permitted to shoot if the person in

question is unarmed or they cannot visualise a weapon, even if they are known

Taliban members; but the United States Army are permitted to shoot regardless of

whether the person in question is unarmed.12 Thus, the British Army has a different

approach to COIN, one less militarily aggressive, preferring politics to command its

COIN campaigns, with mainly politicians, diplomats and the population, helping to

defeat insurgents. The three components together are at the heart of British COIN,

as the Army alone is considered effectively inadequate. General Sir Mike Jackson,

who served in the 1st battalion, The Parachute Regiment, in Northern Ireland, used

the analogy of a rope and explained that a single strand of the rope is weak and can

be easily broken, but when woven together with the other strands it becomes

stronger and harder to break.13 Northern Ireland was a politics game, one which

military intervention could not win alone; the military could only contain terrorism

until the government negotiated and changed policies, acceptable to both

nationalists and unionists. Christopher Tuck in Northern Ireland and the British

11Rod Thornton, “The ‘stickiness‛ of cultural norms: The role of Victorian values in

British Army tactics, techniques and procedures” (Lecture, London, September 15 -

16, 2011). 12

Rod Thornton, “Historical Origins of the British Army’s Counter-Insurgency and

Counter-Terrorist Techniques,” (Lecture, Geneva, 2005),

http://kms1.isn.ethz.ch/serviceengine/Files/ISN/105220/ichaptersection_singledocum

ent/c6a5a351-3c5b-414b-b6b5-fdb529100d8d/en/02_Thornton.pdf. 13

General Sir Mike Jackson, (Lecture, London, September 21, 2007).

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Approach to Counter-Insurgency notes a recurring set of consistencies in the way

Britain approaches COIN, with “two linked themes: the political nature of counter-

insurgency; and the discriminatory use of military power.”14 It is impractical to

assume a COIN campaign can be won purely on military strength; politics must

balance the spectrum for there to be lasting effects. The problem was, however,

that during this period no such equilibrium could be found. Leading British COIN

theorist Sir Robert Thompson believed a counter-insurgency campaign consisted of

five principles:

1. The government must have a clear political aim.

2. The government must function in accordance with law.

3. The government must have an overall plan.

4. The government must give priority to defeating the political subversion, not

the guerrillas.

5. In the guerrilla phase of an insurgency the government must secure its

base.15

British COIN in Northern Ireland lacked in nearly all five of these principles. Britain

did not possess a clear political aim or have an overall long-term plan in Northern

Ireland, as the extent of the Troubles was not predicted when the Army was first

deployed, hoping the conflict would soon come to a close. In previous colonial

campaigns, Britain had clear political aims from the start, i.e. in Malaya where the

aim was to squash the communist insurgency.

14

Christopher Tuck, “Northern Ireland and the British Approach to Counter-

Insurgency,” Defense & Security Analysis 23, no. 2 (2007): 165. 15

Paul Dixon, “British Counter-Insurgency from Malaya to Iraq,” The Journal of

Strategic Studies 32, no. 3 (2009): 357.

10

In addition to Thompson’s five points, Major-General Sir Charles Gwynn’s analysis of

COIN in Imperial Policing considers the aspect of minimum force and formulated

three principles:

1. That the amount of military force employed must be the minimum

the situation demands.

2. Allied with the principles of the minimum use of force is that of firm

and timely action.

3. A further principle is that of co-operation… when unity of control... is

not provided, the necessity of close co-operation and of mutual

understanding is all the more important.16

The preferred option of minimum force used by the Army runs parallel with the

notion of winning the hearts and minds of the population where they are deployed.

The main concept of hearts and minds is widely disputed amongst many scholars

and officials. Paul Dixon in Northern Ireland and the Politics of War and Peace

argues that:

Army practise in Northern Ireland appears neither to have employed

‘minimum force’ nor to have been designed to win ‘hearts and minds’, in

spite of the prescriptions of counter-insurgency. The use of CS gas, the Falls

16

Charles Gwynn “Imperial Policing”, cited in Aaron Edwards, “Misapplying

Lessons Learned? Analysing the Utility of British COIN Strategy in Northern

Ireland, 1971-7,” Small Wars & Insurgencies 21, no. 2, 304-305.

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Road curfew and internment constituted communal punishment.17

In contrast, Colonel I. A. Rigden in The British Approach to Counter-Insurgency:

Myths, Realities, and Strategic Challenges offers an interpretation of ‘hearts and

minds’ which can be set against the context of the realities of Northern Ireland as

follows:

“‘Hearts and minds’ is often mistaken to mean taking a soft approach when

dealing with the civilian population, but this is a misnomer. The key is

changing the mindset of the target audience and, sometimes, this requires

tough measures and a hard approach i.e., mass movement of the population,

curfews and direct military action (riot control). As the mindset is being

changed, small acts of support (i.e., medical and veterinary support) and the

way in which government security forces interact with the population,

combined with an effective information operations campaign, wins over their

hearts.’”18

This definition is beneficial to the general argument of this thesis in which a soft

approach in COIN campaigns is erroneous; ‘tough measures’, especially in Northern

Ireland, were imperative. Thomas Mockaitis in The Minimum Force Debate:

Imperial History Meets Contempory Values, offers a realistic approach to minimum

force asserting that the longer military intervention and the use of force is held back,

the more it may potentially result in augmented crisis, suggesting that from the view

point of long-term strategy, it can save lives not to hesitate to apply force from the

17

Paul Dixon, Northern Ireland and the Politics of War and Peace, (Hampshire:

Palgrave, 2001), 119. 18

Paul Dixon, “British Counter-Insurgency from Malaya to Iraq,” The Journal of

Strategic Studies 32, no. 3 (2009): 364.

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beginning.19

Therefore as Ian Beckett accurately argues in British Counter-

Insurgency: A Historiographical Reflection, it becomes a case of appropriate force

rather than minimum force.20

Aaron Edwards clarifies in Misapplying lessons

learned? Analysing the Utility of British Counter-Insurgency Strategy in Northern

Ireland, 1971-76 the degree of force, which is appropriate to use depends upon the

political climate.21

Morality of Justified Torture

COIN and CT policy in Northern Ireland involves some wider consideration of the

philosophical debate on how far the liberal state is justified in infringing on

individuals’ civil liberties. The morality debate surrounding terrorism is heated

among historians and philosophers. Consequentialism argues that morally the right

course of action is the one that produces the best overall consequences,

outweighing the most harm. The most famous argument for this is the ‘ticking time-

bomb’ scenario in which philosophers have produced their own versions, debating

the justification of torture and interrogation in extreme circumstances. A classic

example of this scenario is one put forward by Anthony Quinton,

I do not see on what basis anyone could argue that the prohibition of torture

is an absolute moral principle… Consider a man caught planting a bomb in a

19

Thomas Mockaitis, “The Minimum Force Debate: Imperial History Meets

Contempory Values” (Lecture, London, September 15-16, 2011). 20

Ian Beckett, “British counter-insurgency: a historiographical reflection” (Lecture,

London, September 15-16, 2011). 21

Aaron Edwards, “Misapplying Lessons Learned? Analysing the Utility of British

COIN Strategy in Northern Ireland 1971-7,” Small Wars & Insurgencies 21, no. 2

(2010): 303.

13

large hospital, which no one but he knows how to defuse and no one dares

touch for fear of setting it off. It was this kind of extreme situation that I had

in mind when I said earlier that I thought torture could be justifiable.22

The discussion revolving around torture and justifications thereof opens up the

question of the definition of torture. The variety of methods used during

interrogation in depth, cause obscurity in the attempt to decipher between where

hardship ends and torture begins. The definition of hardship is, ‘(something which

causes) difficult or unpleasant conditions of life’23 which is consistent to discomfort

with ‘a feeling of being uncomfortable physically or mentally’. Torture on the other

hand is ‘the act of causing great physical or mental pain in order to persuade

someone to do something or to give information’.24 When considering the

definitions of these terms it becomes clear that there is a thin line between the

tolerance of hardship and the unacceptability of torture. This line is one that is hard

to definitively set. Fritz Allhoff in Terrorism, Ticking-Time Bombs and Torture

believes severity is the main focal point surrounding the morality and justification of

alleged torture of suspected terrorists.25 For example, there are obvious differences

between water-boarding, which by any reasonable concept is severe and the

techniques used by the British Army during interrogation in depth, such as:

depravation of sleep and wall-standing.26 Utilitarians in particular would argue that

22

Fritz Allhoff, Terrorism, Ticking-Time Bombs and Torture (Chicago: The

University of Chicago Press, 2012), 88. 23

Cambridge Dictonaries Online, “hardship,” accessed August, 2012,

http://dictionary.cambridge.org/dictionary/british/hardship. 24

Cambridge Dictonaries Online, “torture,” accessed August, 2012,

http://dictionary.cambridge.org/dictionary/british/torture. 25

Fritz Allhoff, Terrorism, Ticking-Time Bombs and Torture (Chicago: The

University of Chicago Press, 2012), 65. 26

Ibid.

14

such techniques whether regarded as torture or not, are morally the lesser of two

evils if it meant saving more lives. As Brian Stewart asserts in The Interrogation

Dilemma, democracies such as Britain need to challenge the conventional

assumption that discomforts and inconveniences are all inhuman, cruel and

unacceptable.27

Absolutists completely disagree with the concept of morally justified torture and

believe under no circumstance can torture ever be justified, because it is

“intrinsically wrong.”28 Timothy Shanahan sets out in The Provisional Irish

Republican Army and The Morality of Terrorism the argument as follows:

If people have fundamental rights, it is never morally permissible to violate

someone’s fundamental rights, and torture necessarily violates one or more

of a person’s fundamental rights, then torture is necessarily morally

impermissible.29

Human rights are at the forefront of any Absolutist’s theory on torture, arguing not

only that torture is morally impermissible but also legally unacceptable.

Furthermore, a compelling challenge facing the debate on the morality of torturing

terrorists is the lack of distinction between a terrorist and a terrorist suspect.30 A

detained suspect is squarely in the hands of the law and totally at its mercy, and the

law in democractic states provides for a procedure which separates the innocent

27

Brian Stewart, “The Interrogation Dilemma,” Intelligence and National Security 24,

no. 3 (2009): 643. 28

J. Bentham, An Introduction to the Principles of Morals and Legislation, (New

York: Dover, 2007), 5. 29

Timothy Shanahan, The Provisional Irish Republican Army and the Morality of

Terrorism (Edinburgh: Edinburgh University Press, 2009), 188. 30

Ibid.

15

from the guilty – a trial. Pending such procedure, as in a ticking time bomb scenario,

the tortured terrorist suspect (like any suspect) is in fact innocent in the eyes of the

state that is torturing him.31 However, as Stewart argues, “the limits now imposed

on western interrogators seem to have swung the balance in favour of the terrorist.

The bomb ticks, but the western interrogator is forbidden to use any form of

inducement or threat in his attempts to extract intelligence, which may save lives.

This seems bizarre since plea bargaining, promises of leniency, threats of heavy

sentence and the good cop-bad cop routine remain staple items in the police

repertoire.”32

The fundamental question remains whether it is acceptable in extreme

circumstances to retract a person’s human rights solely on the belief that torturing

an individual will have the desired effect of preventing terrorism overall. Fritz Allhoff

states that some rights are not absolute and a terrorist forfeits his right not to be

subjected to degrading treatment, such as a negligent parent forfeits his right of

custodianship to his child, and like a murderer forfeits his right to freedom.35 In

contrast, Bob Brecher in Why Torture Remains Unjustified takes a stern view that

even if it is the case that genuinely crucial information in the absence of which a

humanitarian catastophe is unavoidable and cannot be gained other than by torture,

31

Yuval Ginbar, Why Not Torture Terrorists? Moral, Practical, and legal aspects of

the ‘ticking bomb’ justification for torture (New York: Oxford University Press,

2008), 160. 32

Brian Stewart, “The Interrogation Dilemma,” Intelligence and National Security 24,

no. 3 (2009): 642.

35

Fritz Allhoff, Terrorism, Ticking-Time Bombs and Torture (Chicago: The

University of Chicago Press, 2012), 118.

16

it is better that the catastophe occur, the alternative – the normalisation and

institutionalisation of torture – is even worse.36 The uncertainties in the accuracy

and reliability of intelligence gained through such methods, is a common argument

against torture, with the reasoning being that suspects give false confessions in

order to stop being tortured. Stewart contends that “intelligence produced from

interrogation under duress may be false; so may any piece of intelligence. An agent

may have been ‘doubled’ and so become a conduit for disinformation; or may

embroider or fabricate to earn a reward. The text of a radio message may have been

doctored to deceive a hostile interceptor; an image on a photograph may be of a

dummy; a document may be forged; in short, all intelligence, however obtained,

needs to be carefully validated and scrutinized for its plausibility, and compared with

other available intelligence.”37 Brice Dickson, the former Chief Commissioner of the

Northern Ireland Human Rights Commission, in ‘Human Rights and The European

Convention’ makes aware the problematic situation that arises in a case like

Northern Ireland, asking, how far can human rights be justifiably limited in the

struggle of democracy against terrorism.39 Dickson took the view that violations of

human rights by both the British government and paramilitary groups only

prolonged the conflict in Northern Ireland.40 Ian Cobain, a reporter for the Guardian

newspaper, details in his book Cruel Britannia: A Secret History of Torture, Britains

supposed secret torture policy. Cobain argues that Britain secretly and ignorantly

36

Bob Brecher, “Why Torture Remains Unjustified,” Intelligence and National

Security 24, no. 3 (2009): 637. 37

Brian Stewart, “The Interrogation Dilemma,” Intelligence and National Security 24,

no. 3 (2009): 642. 39

Brice Dickson, Human Rights and The European Convention (London: Sweet &

Maxwell, 1997), 143. 40

Paul Dixon, “British Counter-Insurgency from Malaya to Iraq,” The Journal of

Strategic Studies 32, no. 3 (2009): 372.

17

resorted to torture tecniques, reluctant to abandon such a policy when it was in

place. When considering Northern Ireland, Cobain remarks how internment without

trial was another chance for the Intelligence Corps to experiment with the

controversial five torture techniques and insinuates that Britain and more

importantly the army, believed themselves to have a carte blanche approach,

irrespective of the law.41 As this thesis will detail, this was not the case.

Furthermore, Huw Bennett in Smoke without Fire? Allegations Against the British

Army in Northern Ireland 1972 -5 argues that the low level of army prosecutions and

their eagerness for military law to have jurisdiction, demonstrates the limits to the

army’s commitment to operating within the rule of law.42 This thesis will provide

various pieces of evidence in an attempt to thwart Bennett’s argument, in some

instances using Bennett’s own research and examples.

‘Insurgency’ generally includes large numbers of insurgents using moderately

conventional weapons, organisations and tactics. By comparison ‘terrorism’ is more

selective and often more sophisticated in its means and methods of attack, whilst

employing generally smaller numbers.43

Hindsight allows historians to identify the

shift from COIN against general rioting and stone throwing, to CT responding to

assassinations and bombing campaigns, in Northern Ireland and scrutinize the policies

enacted by Britain, whilst advising more preferable routes that could have been taken.

However, during the Troubles, the security forces were blinded to subsequent events

41

Ian Cobain, Cruel Britannia: A Secret History of Torture (London: Portobello

Books, 2013), 42

Huw Benett, “Smoke Without Fire? Allegations Against the British Army in

Northern Ireland, 1972-5,” Twentieth Century British History 24, no. 2 (2013) 43

Ministry of Defence, Operation Banner: An Analysis of Military Operations in

Northern Ireland, Army Code 71842, (London: MoD, July 2006), Paragraph 107.

18

and therefore had to adopt a policy of trial by error, until a coherent strategy was

formed. It is these policies against that context, which this thesis examines.

19

Intelligence

“No amount of intelligence could cure Northern Ireland’s ills. The

most intelligence could do was to define the problem and help the

security forces to confine the troubles.”44

The key to any COIN campaign and the success in Northern Ireland was based upon

accurate and comprehensive Intelligence.45 Chris Ryder reported, “the principle

weakness, according to the Chief of the General Staff who visited Northern Ireland

[in 1971], was in intelligence gathering.”46 Before 1972, intelligence gained in

Northern Ireland was poor, outdated, and proved counter-productive, as there was a

lack of coordination between the Military and Police intelligence units, leading to a

mutual distrust between both. Poor intelligence before 1972 was largely due to

sections of the Catholic community known as ‘no-go’ areas, which were barricaded

off by the IRA, resulting in the security forces not being able to enter and therefore

not monitor these areas. Terrorism was able to flourish in ‘no-go’ areas, as the IRA

was able to plan, organise, raise money, and recruit members to join, without being

observed by intelligence officers. On 21st July 1972 this all changed. In response to

44

Christopher Andrew, Defence Of The Realm (London: Penguin, 2010), 618. 45

Michael Dewar, The British Army in Northern Ireland (London: Guildford, 1985),

185. 46

Chris Ryder, cited in Brian Jackson, “Counter insurgency intelligence in a long

war”, accessed November, 2011,

http://www.rand.org/content/dam/rand/pubs/reprints/2007/RAND_RP1247.pdf.

20

‘Bloody Sunday’, the IRA instigated ‘Bloody Friday’, setting off 22 bombs across

Belfast in the space of 75 minutes, killing nine and seriously injuring 130 others.

‘Bloody Friday’ gave the Army the moral excuse to execute ‘Operation MOTORMAN’,

in which the Army entered and destroyed the No-go areas. Operation MOTORMAN

was “based on the understanding that authority had to be re-established throughout

the Province without alienating the populace.”47 This was a pivotal moment in

British COIN in Northern Ireland, as the IRA could no longer secretly train and

organise operations and the Security Forces were able to gather crucial intelligence

to aid their battle against terrorism. It signified the shift from COIN to CT.

The primary intelligence unit in Northern Ireland before the Troubles was the RUC

Special Branch who was solely responsible for gathering information on suspects.

Between 1972 and 1976 the Army Intelligence unit comprised of: 14 Intelligence

Company, also known as ‘the Det’ who specialized in covert surveillance operations

and the Force Research Unit (FRU) a primarily agent handling unit. To suppress the

conflict in Northern Ireland, the Army had to adopt different strategies then they

had in other colonial campaigns. After the exposure of interrogation in depth, the

army commenced a series of low intensity operations, aimed at pure surveillance

and intelligence gathering, rather than using force to acquire information, as these

resulted in “more preventive then reactive operations.”48 General Sir Frank Kitson

was the pioneer of covert operations in Northern Ireland and introduced innovative

47

Ministry of Defence, Operation Banner: An Analysis of Military Operations in

Northern Ireland, Army Code 71842, (London: MoD, July 2006). 48

Michael Dewar, The British Army in Northern Ireland (London: Guildford, 1985),

186.

21

ways in which the British Army gained intelligence. A prime example was the Four-

Square Laundry operation: an undercover unit would drive around Belfast posing as

a Laundry company collecting bags of clothes from known insurgent areas and

forensically tested the clothes for residue before sending them to an actual laundry

company to be washed. In addition to forensically testing the clothes, “the van was

especially equipped for surveillance. The Four-Square symbol above the windscreen

offered a view of the street to two operatives who lay face down in a specially

constructed compartment built into the roof of the vehicle. These observers were

equipped with miniaturised photographic equipment and also a two-way radio

which linked them with the MRF base.”49 This was an apt operation as it went

unnoticed for three months, due to the normality of the scheme; the ‘workers’ had

Northern Irish accents providing assurance and acceptability to the community.

Policies such as interrogation in depth and internment made insurgents associate

the security forces’ intelligence with desperation; therefore, something as simple as

driving around collecting laundry was overlooked, as it required patience and

endurance. The Military Reconnaissance Force (MRF) was formed in 1971 and it was

a unit of 39 Infantry Brigade, it was the MRF that conducted most of the British

Army’s covert operations during this period, observing communities undercover.

Double agents, working for both the IRA and Special Branch, exposed operations

such as these. Agents who the army and Special Branch managed to turn were

called ‘Freds’ and this comprised of members of the paramilitaries of whom were

enticed to work undercover for the security forces. Most members were attracted

by money offered by the Security Forces and others simply wanted to escape

49

Martin Dillon, The Dirty War (London: Arrow, 1991), 39.

22

paramilitaries but were unable to and so were offered sanctuary by the Security

Forces in return for information.50 The MRF was ultimately jeoprodised by two

double agents captured and interrogated by the IRA: Seamus Wright and Kevin

McKee. Both these agents disclosed the organisation and running of the MRF and

because of this, the MRF ceased to exist.51 14th Intelligence company or ‘the Det’ as

they were known replaced the MRF. ‘The Det’ were trained and commanded by the

SAS and as such became an elite special forces unit specialised in surveillance.

For the security forces the problem of defeating the enemy consisted very largely of

finding him.52

Most members of the IRA had an alias, therefore there was always a

high possibility of inaccuracies in intelligence when signaling whether a man was a

terrorist or not; leading to the detention of innocent men. Beside alias’, the IRA did

not have uniforms; they were an unsanctioned organisation, not another military army

that the British could easily distinguish. Joe Cahill explains on 9th

August 1971, how

one particular old man was arrested who had not been active since the Rising in 1916

but that he must have been the only person lifted that day who was pleased, as he was

delighted to be still considered a threat to the state.53

The apparent failures of

internment and interrogation were due primarily to inadequate intelligence. Over

time, intelligence gained by the security forces became more sophisticated and

essentially more effective. This thesis can only touch upon an extensive topic such as

intelligence, but throughout the next chapters it becomes apparent that intelligence

50

Ibid., 49. 51

Ibid. 52

Frank Kitson, Low Intensity Operations (London: Faber, 1971). 53

Brendan Anderson, Joe Cahill, A life in the IRA (Dublin: O’Brien, 2007), 225.

23

was the key flaw in Britain’s COIN campaign, but, developed into the main aid in

Britain’s CT campaign.

24

The Parker Report

“Even soldiers are human”54

To analyse the Parker Report, it is essential to have an understanding of the

Compton Report. The Compton inquiry looked to investigate allegations of physical

brutality by those who were arrested under the Civil Authorities (Special Powers) Act

(Northern Ireland) 1922, on 9th August 1971 – the start of internment. The most

serious of the allegations was that relating to the interrogation in depth of 11

individuals. Compton “found no evidence of physical brutality, still less of torture or

brain-washing.”55 However, what the committee did unearth was constituted as

physical ill-treatment and this was deemed alarming enough to “raise certain

questions about the detailed application of the general rules governing

interrogation.”56 The Compton Report illuminated the five controversial techniques

used in interrogation in depth and with this the role of the security forces in

Northern Ireland was seriously brought into question. The Home Secretary,

Reginauld Maudling (1970-1972), felt able to defend the techniques in Parliament,

but added the government accepted, ‘it would be right now to review’ interrogation

54

The National Archives Kew [hereafter TNA], CJ 4/876, Evidence of Lt Gen Sir

Frank King, General Officer Commanding, Northern Ireland, November 7,1974. 55

TNA, Report of the enquiry into allegations against the security forces of physical

brutality in Northern Ireland arising out of events on the 9th

August, 1971, Cmnd.

4823 (HMSO 1971) Para. 14 [hereafter Compton]. 56

Ibid.

25

methods.57 Therefore, the Parker Report was an attempt by the Government to look

into the way in which the RUC Special Branch extracted information from suspects

and whether the policies used needed to be adjusted and modified. The Parker

Committee was appointed to consider:

Whether, and if so in what respects, the procedures currently authorised for

the interrogation of persons suspected of terrorism and for their custody

while subject to interrogation require amendment.58

Unlike Compton, this committee was not generated to establish whether illegalities

occurred during interrogation, but to decide whether those procedures already in

place called for amendment. Committee members included: Lord Parker of

Waddington (Chairman) who was Lord Chief Justice of England; Mr J.A Boyd-

Carpenter, a Conservative politician; and Lord Gardiner, a Labour politician and, until

1970 Lord High Chancellor of Great Britain. The final report was published in March

1972 and took just three months to complete after commencing on 3rd December

1971. As a result of divided opinion within the committee, two reports were

published: the majority report and Lord Gardiner’s minority report containing his

reservations. The Parker Committee were called to deal with matters resulting from

interrogation “in circumstances where some public emergency has arisen as a result

of which suspects can legally be detained without trial”59 i.e. internment in 1971. It

was made clear, by the Parker Committee, that their report was not associated

entirely with Northern Ireland but generally with the interrogation of persons 57

Ian Cobain, Cruel Britannia: A Secret History of Torture (London: Portobello

Books, 2013), 161. 58

TNA, Report of the Committee of Privy Counsellors appointed to consider

authorised procedures for the interrogation of persons suspected of terrorism, Cmnd.

4901 (HMSO 1972) Para. 1 [hereafter Parker] 59

Ibid.

26

suspected of terrorism “in the future” in addition to the present procedures.60 But

in essence, it was mainly focused upon Northern Ireland and this chapter will only

consider the Northern Ireland aspect.

Authorised procedures relating to interrogation by the security forces were set out

in the ‘Joint Directive on Military Interrogation in Internal Security Operations

Overseas, amended 10th February 1967’. An important and valuable point the

Parker Committee divulged was how the Directive “sets out the limits beyond which

action may not go, and does not attempt to define the limits to which it is morally

permissible to go.”61 Parker sought to, firstly, investigate whether interrogation

procedures and techniques used by the security forces conformed to the Directive

and, secondly, if these techniques did comply with the Directive, whether their

“application in a civilised and humane society can be morally justified.”62

The techniques

Suspected terrorists were interrogated in a police holding centre and endured

normal police interrogation. Controversially 14 individuals were selected for

interrogation in depth, known as Operation CALABA: 12 men between 11th to 17th

August 1971 and two men from 11th to 18th October 1971.63 The location was

unknown to the prisoners and was not revealed in the Compton or Parker Reports.

60

Ibid., 2 61

Ibid., 8 62

Ibid. 63

Ibid., 19

27

There is still skeptism today over its location but documents with the National

Archives confirm it was Ballykelly airfield.64 These individuals were thought to

possess considerable information on the IRA but were regarded as being

unresponsive to normal police interrogation. The techniques in question refer to the

ones utilized during interrogation in depth. The names of the initial 11 out of 12

men who endured interrogation in depth between the 11th to 17th August were:

1. James Auld

2. Joseph Clarke

3. Michael Joseph Donnelly

4. Kevin Hannaway

5. Patrick Joseph McClean

6. Francis McGuigan

7. Sean McKenna

8. Gerald McKerr

9. Patrick McNally

10. Patrick Joseph Shivers

11. Brian Turley

There was a geographical element to the selection of these men, four of the twelve

were from Belfast, a further four were from Counties Down and Armagh and the last

four came from Londonderry and Tyrone.65 The five techniques were never

published before the Compton Report, but orally taught for use in emergency

64

Samantha Newbery, “Interrogation, Intelligence and Ill-treatment in Northern

Ireland 197172,” Intelligence and National Security 24, no. 3 (2009): 631 65

Ian Cobain, Cruel Britannia: A Secret History of Torture (London: Portobello

Books, 2013), 141.

28

situations and in the case of Northern Ireland, Military Intelligence officers taught

the procedures to members of the RUC Special Branch in April 1971.66 This is simply

because Military Intelligence officers were not permitted to interrogate suspects

themselves; it was the responsibility of the police force. Therefore, the role of the

Army in interrogation in depth was purely a monitoring and advisory one to the RUC

Special Branch. As police interrogators were not proficient in effective interrogation

the Army, therefore, had to impart their expertise of valuable interrogation, that

they had previously had success with in colonial campaigns.

Distortion surrounds the authorisation of interrogation in depth. Sir Michael Carver,

the Chief of the General Staff and the professional head of the Army, was unaware

of the authorisation or details of interrogation in depth; he returned from leave to

discover deep interrogation was already in place, which he had previously not

recommended to the Secretary of State.67 Sir Harold Maguire the Director General

of Intelligence in the Ministry Of Defence, who was not answerable to the Chief of

General Staff, sanctioned interrogation in depth.68 Carver declared; “My immediate

reaction was surprise that Ministers should have authorised these: I personally

would not have done.”69 Brian Faulkner, Minister of Home Affairs in Northern

Ireland, signed orders authorising the deployment of these men from a Regional

Holding Centre to an interrogation centre. Faulkner was fully aware of what

66

Lord Gardiner’s minority report within Parker, Para. 6 [hereafter minority report]. 67

Thomas Hennessey, The Evolution of the Troubles (Norfolk: Irish Academic Press,

2007), 159. 68

Ibid. 69

Ibid., 159-160

29

interrogation in depth consisted of as he was “extensively briefed by the Director of

Intelligence in Northern Ireland on the techniques of interrogation.”70

Parker provided constructive encouragement for these techniques elucidating

readers to the notion that they fulfilled the aims of the techniques which was to

“make the detainee, from whom information is required, feel that he is in a hostile

atmosphere, subject to strict discipline, and that he is completely isolated so that he

fears what may happen next.”71 Parker gave the example of ‘hooding’ and ‘white

noise’ and claimed they were needed for both security and for ensuring a feeling of

complete isolation was generated. Parker obtained these opinions from a report by

the Intelligence Coordinator, Sir Dick White, to the Parker Committee in which White

stated the use and sole purposes of the techniques in question as:

To protect the security of the location of the special interrogation centre,

providing the means of transport was such that only ‘hooding’ would suffice

to maintain secrecy. To protect the identities of those selected for

protracted interrogation, compulsory ‘hooding’ was permitted at the centre

for the minimum period required for this purpose, if the prisoner asked to be

hooded because he was fearful of his identity becoming known to other

detainees; a record of his request and the time for which he remained

voluntarily hooded had to be kept. To protect guards and interrogators from

sudden violent demonstrations from prisoners, compulsory wall standing was

permitted as a safety precaution in a holding area with the defensive purpose

70

Ibid.,154 71

Parker, 11.

30

described. To maintain absolute secrecy over the questioning of particular

suspects and to prevent inter-communication between detainees, white

sound was permitted for this use.72

The IRA had begun a campaign of gaining information on Special Branch personnel

and military intelligence officers, in order to assassinate them; therefore, the

security of the interrogators and guards was of utmost importance. For example, on

18th September 1971, two members of a Donegal-based IRA unit crossed over into

Northern Ireland and assassinated Sergeant Nixon of the Strabane Special Branch:

they were recognised by two uniformed policemen, who they then shot resulting in

the death of one and causing seriously injury to the other.73 For these reasons,

White believed the techniques were vital in maintaining the anonymous identity of

interrogators and guards during deep interrogation, so they were not pursued once

suspects were released, offering them and their families a chance of living a normal

life.74 White explained that these techniques could have been significantly

decreased if improvements were made to the centres i.e. soundproofing would have

eradicated the need for white noise and suggested that these techniques were in

place not merely because the security forces wanted to use them but due to their

requirement for the security of both prisoners and officers. When it came to a

suspect of whom there was significant intelligence against, the security forces used

what is described as a ‘psychological attack’. This attack is outlined as:

72

TNA, DEFE 23/110, Northern Ireland: Lord Parker's review of interrogation

procedures. 1971. 73

TNA, DEFE 23/110, Northern Ireland: Lord Parker's review of interrogation

procedures. 1971. 74

Ibid.

31

The suspect should be dealt with at the interrogation centre in such a way as

to convince him of the fact that he has reached the end of this particular

road. It must be demonstrated to him that his freedom is now entirely within

our control. He must be brought to realize that he is now entirely alone and

completely severed from connections with his former comrades who can

neither help him further nor condemn nor exact reprisals upon him. It is for

him and him alone to decide whether it is best for him to cooperate with his

interrogators, they will on their side be wise to make clear the relaxations

that will follow such cooperation.75

In an IRA doctrine of counter intelligence and intelligence, drafted in 1968, the need

“to harden our people and organisation to police pressure”76 was recognised and,

therefore, the need to advance police interrogation was deemed necessary by the

security forces in order to see whether maximum intelligence could be gained.

Whether these techniques were deemed unsatisfactory or immoral was for

individuals to answer themselves but Parker clarified that “no rules or guidelines

have been laid down to restrict the degree to which these techniques can properly

be applied.”77 Consequently, the security forces never had guidelines to follow

which essentially meant they had no stringent regulations to abide by and,

therefore, in essence, were not infringing upon any set rules. There were no rules to

follow and no rules to break. It was for the security forces themselves to decide

upon the extent to which they effected these techniques and what bordered on

75

Ibid. 76

Ibid. 77

Parker, 12.

32

torture and “in the absence of definite guidelines, there is a risk that the techniques

will be applied to a greater degree than is justified either morally or under the

Directive.”78 When taught how to interrogate suspects, some members of the

security forces were made to endure the same techniques so as to allow them to

understand what the suspects experienced and what could be physically and

mentally endured; they were taught to be resilient to the interrogation therefore

allowing the security forces to understand what methods worked most effectively.

Consequently, the security forces “exact application in real life situations depends

upon the training already received by those who employ them.”79 Therefore,

interrogators would not have comprehended the controversy surrounding

interrogation in depth, as they themselves in all probability did not believe they

were tortured when they underwent the same techniques. As understandable as

the Parker Report appears to be in regards to the techniques and interrogation by

the security forces, Sir Dick White, in a note to the privy councilors enquiry, provided

a disconcerting assertion by expressing that the techniques in question “do not really

square with the general principles which we ourselves laid down in JIC (45)15”80 (The

Joint Directive). He proceeded to give a straightforward expression of the

techniques by stating if people did not have severe doubts about the techniques

then there would hardly have been grounds for a Privy Councilors enquiry.81 In

addition, White declared in this note: “unhappily for us, and whether rightly or

wrongly, the use of the three techniques for this primary purpose does lay us open

78

Ibid., 13. 79

Ibid., 13. 80

TNA, DEFE 23/110, Northern Ireland: Lord Parker's review of interrogation

procedures. 1971. 81

Ibid.

33

to possible charges of physical assault.”82 This signaled that White agreed with

Compton that physical ill-treatment occurred during interrogation in depth. Parker

overlooked this comment in his report. Additionally, White suggested five points in

his report, which he thought, would aid the interrogation procedures:

1. A further detailed clarification of the responsibilities of all concerned

2. A clear framework of medical and legal advise

3. A precise definition of the purposes for which the special handling techniques

are permitted to be used

4. The requirement that substantial information must be available about any

suspect who is selected for treatment at the interrogation centre

5. The improvement of the physical facilities available at the interrogation

centre.83

Papers to the Parker Committee reveal that Whites evidence was not what was

preferred and it was queried whether his report should be made available to the

Committee and if so whether his report “should go in its present form (in which case

the MoD will have no alternative but to say that they do not agree with it in all

respects) or whether it should be amended to come into line with the general MoD

evidence…”84

Interrogation in depth did not form a basis in the British Army’s COIN campaign in

Northern Ireland; it was commissioned by the MoD against the advice of the Chief of

the General Staff. The security forces are compelled to enact the orders of the

government, regardless of whether these orders are advocated by the security

82

Ibid. 83

Ibid. 84

Ibid.

34

forces or not. Once utilized, the question then needs to be asked, was this

controversial process beneficial to the security forces’ COIN campaign?

The value of the techniques

When considering just the techniques used and not the question of whether they

constituted ill-treatment and immorality, it is undeniable that the techniques were

invaluable to the security forces in attaining vital intelligence against the IRA; more

so than normal police interrogation. It must be said that the difference between

basic police interrogation and interrogation in depth in which the techniques were

applied, were profound, resulting in a significant amount of intelligence being

unearthed. Ordinary police were not as proficient in good interrogation methods as

the army or special branch were, leading to insignificant information being obtained.

As a result of operation CALABA, the subsequent information was acquired:

1) Identification of a further 700 members of both I.R.A factions, and their

positions in the organisations.

2) Over 40 sheets giving details of the organisation and structure of I.R.A units

and sub-units.

3) Details of possible I.R.A operations; arms caches; safe houses;

communications and supply routes, including those across the border; and

locations of wanted persons.

4) Details of morale, operational directives, propaganda techniques, relations

with other organisations and future plans.

35

5) The discovery of individual responsibility for about 85 incidents recorded on

police files, which had previously remained unexplained. 85

In addition, after internment was introduced and interrogation was intensified, the

volume of weapons, explosives, and ammunition found was notably greater than it

was before, as Table 1 illustrates.

Table 1: Parker Report, Para. 21

Deep interrogation was effective and valuable to the security forces in confiscating

arms, ammunition, and explosives off the streets of Northern Ireland. Taking aside

the ethics of deep interrogation, it is convincing that these techniques were

successful and played an imperative role in preventing further atrocities from

occurring. Furthermore, Parker reports that the “indirect effect of these two

operations of interrogation was that further information could be, and was, more

readily obtained by ordinary police interrogation.”86 When considering the

85

Parker, 20. 86

Parker, 23.

1 January to 8 August 9 August to 31 December

Machine Guns 1 25

Rifles 66 178

Pistols/Revolvers 86 158

Shotguns 50 52

Rockets - 55

Ammunition 41000 rounds 115000 rounds

Explosives 1194 Ibs. 2541 Ibs.

36

alternatives, the conditions and situation of Northern Ireland needs to be

remembered. There was a need for quick and accurate intelligence to aid the

security forces in their battle against terrorism. Alternatives such as informers or

‘stool pigeons’ as they are referred, or ‘bugging’, were extremely time consuming

and could have proved ineffective. The apparent value of interrogation in depth is

overshadowed by the question of whether the techniques should have been

employed. This is a question the next chapter attempts to answer.

Should the techniques have been employed?

The committee was split over whether the techniques in question should have been

employed, with Parker describing the subject as a “highly emotive field.”87 Touching

upon the ‘ticking-time bomb’ scenario, Parker asserts that whether the techniques

complied with the Directive fall upon how an observer would view the operation.

Parker further specified that an observer to the techniques would have to judge the

techniques remembering that, the operation was taking place in the course of urban

guerilla warfare in which completely innocent lives were at risk; that there was a

degree of urgency; and that the security and safety of the interrogation centre, of its

staff and of the detainees were important considerations.88 The decision was then

reached by the majority committee members that in light of the reasons mentioned,

the techniques were authorized as justified, according to the Directive,89 which was

the only relevant document the Committee could refer to. Whilst Gardiner, in his

87

Ibid., 28 88

Ibid., 30 89

Ibid., 31

37

Minority Report agreed the only relevant document was the Directive and believed

the Army and government officials authorized the procedures, he categorically

judged the techniques as illegal by domestic law.90 No law or regulation according to

Gardiner extended ordinary police powers in Northern Ireland to the techniques

used for interrogation in depth.91 Regulation 10 of the Civil Authorities (Special

Powers) Act (Northern Ireland) 1922, allowed police officers to detain any person for

the purpose of interrogation, but the five techniques used were not acknowledged

within the Act. Gardiner argued that whether or not these techniques were

authorized in the Directive or by a minister, i.e. Brian Faulkner, they still would not

be legal as only Parliament can modify the law; ergo it was illegal. Gardiner further

remarked that it was submitted to the committee that by international law the

techniques infringed upon Article 5 of the Universal Declaration of Human Rights,

which states that:

No one shall be subjected to torture or to cruel, inhuman, or degrading

treatment or punishment.92

In addition, Articles 7 and 10 of The International Covenant on Civil and Political

Rights provides that:

7. No one shall be subjected to torture or to cruel inhuman or degrading

treatment or punishment. In particular, no one shall be subjected without

his free consent to medical or scientific experimentation.

90

Minority report, 8. 91

Minority report, 10 (b). 92

“Universal Declaration of Human Rights, Article 5”, accessed October, 2011,

http://www.un.org/en/documents/udhr/.

38

10. (i) All persons deprived of their liberty shall be treated with humanity and

with respect for the inherent dignity of the human person.93

Furthermore, Article 3 of each of the four Geneva Conventions provides that:

In the case of armed conflict not of an international character occurring in

the territory of one of the High Contacting Parties, each Party to the conflict

shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members

of armed forces who have laid down their arms and those placed

hors de combat by sickness, wounds, detention, or any other

cause, shall in all circumstances be treated humanely…

To this end, the following acts are and shall remain prohibited at any

time and in any place whatsoever with respect to the above-

mentioned persons:

a. Violence to life and person, in particular murder of all

kinds, mutilation, cruel treatment and torture

b. Outrages upon personal dignity, in particular humiliating

and degrading treatment.

Lastly, Article 3 of the European Convention on Human Rights provides that:

4. No one shall be subjected to torture or to inhuman or degrading

treatment or punishment.

Gardiner however, refrained from presenting his personal view on these possible

infringements as it could be disputed which of these Articles and Conventions

93

Minority report, 11.

39

applied to the emergency situation in Northern Ireland.94 In addition, Gardiner

deemed it inappropriate to present his opinions on the matter, as the issue was

being dealt with at the time of this Report, at Strasbourg.95 In 1976 the United

Kingdom was found guilty by the European Commission on Human Rights of having

breached the European Convention on Human Rights, ‘in the form, not only of

inhuman and degrading treatment, but also of torture.’96 The United Kingdom did

not contest this conclusion, but the European Court (on Human Rights)

subsequently, after reexamining the situation for itself, decided on January 18th

1978, by thirteen votes to four, that the five techniques did not amount to torture

but, by sixteen votes to one, that they did amount to a practice of inhuman and

degrading treatment.97 So, when considering the only relevant document (the

Directive), Parker stated:

We do not subscribe to the principle that the end justifies the means. The

means, in our view, must be such as not only comply with the Directive, but

are morally acceptable taking account of the conditions prevailing.98

The contentious methods in place provide obscurity when trying to decipher

between where hardship ends and torture begins. As Parker clarifies, any person

suspected of crime endures hardship and discomfort, but torture is not acceptable

under any circumstance.99 Lord Gardiner completely rejected the definition of

brutality within the Compton Report, which was: “an inhuman or savage form of

94

Ibid., 11 (b) 95

Ibid. 96

John Bew and Martyn Frampton and Iñigo Gurruchaga, Talking to Terrorists

(London: C. Hurst & Co., 2009), 36. 97

Brice Dickson,Human Rights and The European Convention (London: Sweet &

Maxwell, 1997), 146. 98

Parker, 27. 99

Ibid., 9

40

cruelty and that cruelty implies a disposition to inflict suffering, coupled with

indifference to, or pleasure in, the victim’s pain.”100 Gardiner proceeded to explain

that under this definition if an interrogator were to cut the fingers of a detainee one

by one as he felt it necessary to extract the required information solely for the

objective of saving lives, this would not constitute as being cruel and therefore not

brutal.101 Some witnesses to the Parker inquiry believed that although interrogation

techniques used as mentioned in the Compton Report, could have saved lives, they

should not be used in a democratic society such as Britain and therefore,

It was better that servants of the State and innocent civilians should die than

that the information which could save them should ever be obtained by such

methods.102

Parker deemed this statement as “unrealistic and one which is unfair both to the

State and to law abiding citizens.”103 As later mentioned in the Gardiner Report, the

issue of an individual’s human rights outweighing those of the overall population

surfaces and it is a complex dilemma. In the Parker inquiry, Gardiner believed that

the techniques used on suspects during interrogation were unethical and constituted

torture, inhuman and degrading treatment, in violation of domestic and

international law;104on the other hand Parker viewed the techniques as nothing

more than hardship and discomfort in which all criminals experience and believed

the techniques conformed with the Directive, which was the only relevant document

100

Minority report, 7(d). 101

Ibid. 102

Ibid., 8. 103

Ibid., 32 104

Minority report, 10-11.

41

to this inquiry.105 Physical strength and tolerance differs within each person and the

limit to which individual bodies can go varies. Parker believed that the extent, to

which the techniques were operated, was the main pretext on whether they should

have been employed during interrogation. Known senior members of the IRA were

not selected for deep interrogation as they were not considered healthy enough;

those selected were mostly young and fit, to ensure - as Ian Cobain phrases it - that

they ‘survived the techniques’.106 During internment and interrogation in depth,

“what would be intolerable for a man in poor health might amount to no more than

inconvenience for a fit man”,107 therefore, it becomes hard to install a boundary,

which is acceptable for all. One man might be able to stand against a wall for a

number of hours where another man may not be able to stand for more than half an

hour. As Gardiner suggests, it would be unlikely that the techniques would not

result in some minor physical injuries,108 but without personally seeing the detainees

and their injuries, as the Committee did not, one cannot possibly judge how such

injuries occurred. Moreover, medical witnesses to the Parker Committee, “all

emphasised the fact that in the field of mental disorientation everyone had a

different threshold, which made the imposition of specific time limits of great, and

some thought insuperable, difficulty.”109 Therefore, there was no way of determining

whether the techniques, caused lasting mental effects.

105

Parker, 30-31. 106

Ian Cobain, Cruel Britannia: A Secret History of Torture (London: Portobello

Books, 2013), 141. 107

Parker, 29. 108

Minority report, 13. 109

Ibid., 13 (b-ii)

42

Referring to interrogation in-depth, Sir Anthony Farrar-Hockley, Commander Land

Forces in Northern Ireland 1970-71, accepted that, “you come to a limit to whatever

you’re going to do, I would have thought that that type of activity has overstepped

the limit.”110 However, Farrar-Hockley also stated, “the IRA call themselves soldiers,

they say they are carrying out warfare and so on, they must be prepared to be

frightened if they’re captured under interrogation and so on.”111 This was a general

belief amongst the security forces, which encompassed a certain level of

understanding. The IRA called themselves an army, they conducted brutal and

savage killings, bombings, assassinations, and kneecappings and in some cases

kidnapped and interrogated soldiers themselves, yet accused the British of ‘foul play’

when they were captured by the British Army and interrogated by the RUC. As

Prime Minister Edward Heath voicing his concerns over the Compton Report, argued,

“anyone not given 3-star hotel facilities suffered hardship and ill-treatment…

nowhere is this set in the context of the war against the IRA.”112 Wall-standing,

white noise, hooding, sleep deprivation and poor diet did not constitute the

extremity to which the IRA themselves dealt, but because Britain is a leading

democratic country and is expected to behave in a certain way, the techniques used

caused an outcry. A Community Relations Officer from the Prince of Wales’ Own

Regiment recalled the day he himself was kidnapped by the IRA, he ran into a

roadblock by Republicans from the Falls Road, he was dragged away and

interrogated by a man in a mask, he was then hooded and frogmarched off and then

110

Anthony Farrar-Hockley, “Part 1 – The Secret War”, accessed March, 2012,

http://news.bbc.co.uk/hi/english/static/in_depth/northern_ireland/2000/brits/. 111

Ibid. 112

Thomas Hennessey, The Evolution of the Troubles (Norfolk: Irish Academic Press,

2007), 164.

43

placed on his knees; it was then he heard the cocking of a pistol and he counted to

three and moved, which he believed saved his life as he was shot five times in his

right leg and played dead until his assailants ran away.113 Executions by the IRA were

a common occurrence; with priests even attending executions to give the last rites

to these individuals before they were killed.114

Parker expressed the view that the techniques used were in compliance with the

Directive, “subject to proper safeguards”.115 Parker recommended a series of

safeguards to ensure the techniques complied with the Directive.116 The committee

advocated guidelines instead of rules as they accepted it was unviable to suggest the

security forces could completely conform to rules. The ‘fog of war’ concept best

explains this logic as in some military situations there is a level of uncertainty and

sudden change, in which decisions have to be made on the spot and the military

have to adapt quickly to these situations. Again, with no set specific rules for the

armed forces, a security shield was provided if accusations of illegalities were to

arise. The terms of reference of the Parker Committee, to consider whether the

procedures in place for interrogation required amendment, was expressed as so,

because it was assumed the procedures were authorized.118 As already mentioned,

Gardiner deemed the procedures as illegal by domestic law, and therefore, it was

not a question of amendment, but whether the Committee should recommend that

Parliament should enact legislation, making these procedures lawful in emergency 113

Anthony Farrar-Hockley, ‘Part 1 – The Secret War’, accessed March, 2012,

http://news.bbc.co.uk/hi/english/static/in_depth/northern_ireland/2000/brits/. 114

Martin Dillon, The Dirty War (London: Arrow, 1991), 49. 115

Parker, 31. 116

Ibid., 35-42 118

Ibid., 17

44

conditions. Gardiner was not in favour of making such recommendations, not

believing:

Such procedures are morally justifiable against those suspected of having

Information of importance to the police or army, even in the light of any

marginal advantages, which may thereby be obtained.119

The main thought process on this opinion was the inability to find “either in logic or

in morals, any limit to the degree of ill-treatment to be legalized”120but yet, was

unwilling to recommend amendments on these procedures. Gardiner further

emphasized that if Britain was to legalize these procedures and depart from world

standards on human rights, such a move would have had a damaging effect on the

reputation of Britain, which Gardiner believed “to be the greatest democracy in the

world.”121 Edward Heath agreed with both the reports and subsequently on the 2nd

March 1972, told the commons:

The government, having reviewed the whole matter with great care and with

reference t any furture operations, have decided that the techniques which

the committee examined will not be used in future as an aid to interrogation.

The statement that I have made covers all future circumstances. If a

government did decide – on whatever grounds I would not like to foresee –

that additional techniques were required for interrogation, then I think that..

they would probably have to come to the House and ask for the power to do

119

Ibid. 120

Ibid., 20 (2) 121

Ibid., 21

45

it122… I must make it plain that interrogation in depth will continue but that

these techniques will not be used. It is important that interrogation should

continue.123

The main issue highlighted from the Parker Report was whether it was possible to

defeat terrorism whilst maintaining human rights, a question the Gardiner Report

attempts to answer.

122

Ian Cobain, Cruel Britannia: A Secret History of Torture (London: Portobello

Books, 2013), 157. 123

Ibid., 161

46

The Gardiner Report

“In Northern Ireland memories are long, and past oppression serves to colour present experience.”124

The Gardiner Report was published in 1975 “to scrutinise with a view to amendment

where necessary”125 the Northern Ireland (Emergency Provisions) Act 1973

(hereafter the 1973 Act) which was passed as a result of Lord Diplock’s Report and

recommendations on the then situation in Northern Ireland. The 1973 Act

effectively extended the powers used by the armed forces and abolished trial by jury

for crimes relating to terrorism, known as ‘scheduled offences’. The Labour Party,

which was at the time of the Report in lead Opposition to the Conservative

Government, considered Diplock concentrated on the legal and procedural matters

rather than considering the wider civil liberties and human rights context.126

Therefore, when Labour returned to power in 1974, the Gardiner Committee was

established to review the Diplock recommendations against that of individual human

rights. Gardiner endorsed the Diplock Report and illustrated the reduced number of

shootings and bombings since the Report was introduced three years prior to the

Gardiner Committee. Shootings that totalled 10,628 in 1972 dropped significantly to

124

TNA, Report of a Committee to consider, in the context of civil liberties and

human rights, measures to deal with terrorism in Northern Ireland, Cmnd. 5847,

(HMSO 1971) Para. 21. [hereafter Gardiner]. 125

Gardiner, 1. 126

Michael Cunningham, British government policy in Northern Ireland 1969-2000

(Manchester: Manchester University Press, 2001), 23.

47

3,052 in 1974.127 Gardiner, therefore, looked to improve on the 1973 Act rather

than eradicate policies introduced by Diplock.

The Gardiner Committee was appointed:

to consider what provisions and powers, consistent to the maximum extent

practicable in the circumstances with the preservation of civil liberties and

human rights, are required to deal with terrorism and subversion in Northern

Ireland, including provisions for the administration of justice, and to examine

the working of the Northern Ireland (Emergency Provisions) Act 1973; and to

make recommendations.128

Committee members included: Professor Alastair Buchan, who at the time was

Professor of International relations at Oxford University; His Honour Judge J P

Higgins QC; Professor Kathleen Jones, who was a Professor of Social Policy at the

University of York; The Rt Hon the Lord MacDermott MC, Northern Ireland (a

politician and lawyer who until 1971 was Lord Chief Justice of Northern Ireland);

Michael Morland QC; and Dr J H Whyte, a researcher. Like the Parker Report this

Committee was united in agreement except for the reservation of Lord MacDermott,

whose views will be entwined within the majority report for this chapter.

Within the Gardiner Report, Gardiner explained the committee had to consider two

issues when examining the administration of justice in Northern Ireland: the powers

needed to deal with terrorism and subversion; and the preservation of civil liberties

127

Gardiner, 2. 128

Ibid., 1

48

and human rights.129 A common acknowledgement among many of the interested

parties, which gave evidence to the Gardiner committee, was that these two issues

could not work together equally. The Catholic Institute for International Relations

(CIIR), stated in their evidence:

We accept that in the situation of inter-sectarian strife and urban

guerrilla warfare such as exists in Northern Ireland the problem of

reconciling with preservation of civil liberties with the security of the

state is almost insuperable.130

However, the CIIR believed that derogation from the legal process should only be

used as a last resort, which they did not believe the 1973 Act was. According to the

CIIR, more effort should have been made to make prior laws to the 1973 Act work,

such as trial by jury, which they regarded as a fundamental human right.131 Similarly,

NICRA, stated in their evidence to the Gardiner committee, that the 1973 Act should

have been repealed. NICRA deemed that Diplock did not prove the need for the

abolition of juries for example, as not enough was done to endeavour to make the

legal system work; therefore the 1973 Act should have been repealed as “juries are

basic safeguards of human rights in common law.”132 It was suggested by NICRA,

with which the Social Democratic and Labour Party (SDLP) was in agreement, that

there should have been an introduction of a Bill of Rights. This would set down

fundamental legal rights for those arrested, ensuring their human rights could not be

129

Ibid, 6 130

TNA, CJ 4/691, Gardiner Committee on Terrorism and Subversion: circulated

documents and evidence, Catholic Institute for International Relations submission to

the Gardiner Committee. October 11th

-28th

1974. 131

Ibid. 132

TNA, CJ 4/1036, Committee: summaries of oral and written evidence. Lord

Gardiner’s committee on Terrorism and Subversion, Summery of evidence given by:

Northern Ireland Civil Rights Movement, January 1st 1971- December 31

st

49

breeched.133 The abolition of trial by jury for ‘scheduled offences’, also known as the

‘Diplock courts’, formed the basis of the law in Northern Ireland. Gardiner believed

that trial by jury should have been restored in Northern Ireland as soon as it was

possible, as it was the best form of trial for serious cases.134 Many witnesses to the

Committee took a contrasting view to Gardiner believing the Diplock courts had a

positive effect on the criminal system, with a 2% rise in convictions.135 Charles Shaw

QC, the Northern Ireland Director of Public Prosecutions, accepted that the ‘Diplock

courts’ saved an enormous amount of time and shortened the caseload. Shaw did

not believe it was possible to re-introduce trial by jury in Belfast alone without fear

of perverse verdicts, as more and more people were subject to influence to which

they would not have been subject to five years prior to the Gardiner Report.136

Furthermore, Shaw declared that as much as he would have welcomed the return of

trial by jury, he would have regretted its return at the present time because of the

accusations of partial juries to secure unanimous votes against the defendant; being

“one more stick with which to beat the crown.”137 Geographical statistics on

Northern Ireland meant the qualification for jury service was more likely to be

possessed by Protestants than Catholics.138 In addition, the intimidation of members

of the jury, meant that the ‘Diplock Courts’ were the only practical solution.

133

Ibid. 134

Gardiner, 26. 135

TNA CJ 4/672, Gardiner Committee on Terrorism and Subversion: records of oral

evidence. September 5th

– November 1st 1974.

136 TNA, CJ 4/674, Committee on Terrorism and Subversion: documents 1-23

circulated to Committee. Transcripts of oral evidence. Evidence of Charles Barry

Shaw QC, Northern Ireland Director of Public Prosecutions. July 18th

1974. 137

Ibid. 138

TNA, Report of the Commission to consider legal procedures to deal with terrorist

activities in Northern Ireland, Cmnd. 5185 (HMSO 1971) Para. 36. [hereafter

Diplock].

50

Gardiner disagreed with the arguments against the Emergency Provisions Act. The

difficulty as Gardiner explained, was that the Committee had to maintain a “double

perspective; for, while there are policies which contribute to the maintenance of

order at the expense of individual freedom, the maintenance without restriction of

that freedom may involve a heavy toll in death and destruction.”139 In regards to

Army deployment in Northern Ireland, Gardiner clarified the situation. For over 25

years the UK had been a member of the North Atlantic Alliance, an entirely defensive

alliance which,

in the case of any hostile action on the part of either majority or the minority

community against the other, which implied even the risk of civil war in Ulster

or of organised violence spreading across the borders of the Republic, the

Government of the United Kingdom would be obliged to deploy all the force

at its disposal against such an action in order to honour its international as

well as to discharge its domestic responsibilities.140

Britain was obliged to intervene in Northern Ireland as civil war was imminent and

when the Troubles escalated they were obliged to stay, in order to combat

terrorism, and this would have had to be done by any means possible in order to

maintain and safeguard law and order on British streets. Lord MacDermott, in his

reservation, explains with reference to the preservation of civil liberties and human

rights in regards to social impairment, that:

139

Gardiner, 15. 140

Ibid.,10

51

The object of what the security forces are doing is to stop the campaign of

violence and so pave the way for peace. Most of the long-term damage, of

the scarring and the misery, is due first and last to the terrorist.141

MacDermott stated he would have accepted Gardiner’s section on this matter more

adequately “if it recognised this stark fact more fully.”142 The security forces were

primarily in Northern Ireland to help stop the violence and safeguard British citizens

from terrorist acts, they were not deployed to initiate violence; the security forces

were not the insurgents but the counter-insurgents. In terms of civil liberties and

human rights, the 1973 Act did not infringe the European Convention for the

Protection of Human Rights and Fundamental Freedoms 1950. Under Article 15, the

UK was sanctioned, ‘in time of war or any other public emergency to the extent

strictly required by the exigencies of the situation,’ to retract from Article 5 which

set the common and accepted ‘right of liberty and security of persons.’143 Britain

formally notified the Secretary General in August 1971 of the need to exercise

powers of detention and internment for the protection of life, the security of

property and to prevent outbreaks of public disorder; in January and August 1973

the Secretary General was further notified of the Detention of Terrorists (Northern

Ireland) Order 1972 and of the Northern Ireland (Emergency Provisions) Act 1973.144

The 1973 Act was therefore not in breach of international agreement.145 Human

141

Lord MacDermott’s reservation within Gardiner, [hereafter Lord MacDermott’s

reservation]. 142

Ibid. 143

Gardiner, 16. 144

TNA, CJ 4/691, Gardiner Committee on Terrorism and Subversion: circulated

documents and evidence. October 11th

-28th

1974. 145

Gardiner, 16.

52

Rights, according to Gardiner, were not absolute and he summarised his views on

the matter as:

While the liberty of the subject is a Human Right to be preserved under all

possible conditions, it is not, and cannot be, an absolute right, because one

man may use his liberty to take away the liberty of another and must be

restrained from doing so. Where freedoms conflict, the state had a duty to

protect those in need of protection.146

Lord Diplock, in a meeting with Gardiner in November 1974, stated that when he

recommended the provisions within the 1973 Act, he did not believe there were any

practicable measures to cope with terrorism, which he had failed to include in his

report.147 But Diplock made a point to Gardiner, that he was two years out of date in

Northern Ireland terms, and that everything he said had to be weighed against this

fact.148 Gardiner had no reservations about Diplock’s recommendations in his 1972

report, but believed that the powers needed to deal with terrorism simply did not

help the current situation, as it caused more resentment against the Security Forces.

The Gardiner Committee, therefore, looked to fine comb each section of the

Emergency Provisions Act and find whether alternative suggestions could be made

to help the security forces in their bid against terrorism, whilst maintaining the

preservation of civil liberties and human rights.

146

Ibid., 15 147

TNA, CJ 4/1036, Committee: summaries of oral and written evidence Notes on a

meeting with Lord Diplock in the Northern Ireland Office, London, Wednesday, 20

November 1974. 148

Ibid.

53

Some witnesses to the Gardiner Committee took the view that the human rights and

civil liberties of those arrested was a priority over powers needed by the security

forces to deal with terrorism and subversion. Father Brady, Father Faul and Father

Murray jointly wrote a memorandum to the Gardiner committee on the working of

the Emergency legislation in Northern Ireland, titled ‘Corruption of Law’. In this

memorandum they declared:

The real problem in Northern Ireland is what motivates some towards

terrorism and others towards counter-terrorism. One group is denied human

rights and civil liberties; the other group is convinced that it is entitled to use

any and every means, including the denial of rights and liberties to maintain

its dominant position.149

Therefore, according to Fathers Brady, Faul and Murray the fundamental problem of

Northern Ireland was the “denial of human rights and civil liberties, not terrorism

and subversion.”150 In addition, the CCDC argued:

we believe that the government has abrogated its responsibilities by

permitting the police and the army to pursue a biased course against the

minority in the execution of the law… the Act gives too much license to the

security forces to invade the privacy and infringe the basic rights and liberties

of ordinary citizens… by no stretch of the imagination could most of the

people arrested in these circumstances be considered terrorists.151

149

TNA, CJ 4/688, Gardiner Committee on Terrorism and Subversion: documents 57-

68. Evidence from public departments and organisations, members of Committee,

other non-official bodies and members of the public. Sept 16th

- 22nd

1973. 150

TNA, CJ 4/688, Gardiner Committee on Terrorism and Subversion: documents 57-

68. Evidence from public departments and organisations, members of Committee,

other non-official bodies and members of the public. Sept 16th

- 22nd

1973. 151

Ibid.

54

Gardiner, however, acknowledged that it was the public and “not some remote

official body who are the target and will be the victims of subversive action.”152 As a

result, powers were needed to deal with terrorism and subversion and so the

committee looked in depth at the necessity and effectiveness of the 1973 Act.

Existing and proposed offences

It is necessary to state the existing and proposed offences at the time the Gardiner

Report was written, enabling one to have a clear understanding of what constituted

illegal actions and what Gardiner thought should further be condemned as illicit.

Under section 19 of the 1973 Act, any organisation that encouraged or condoned

crimes such as intimidation, violence or sectarian murder could be proscribed by the

Secretary of State. At the time the Gardiner report was published, proscribed

organisations included: both the Official and Provisional IRA; the youth branch of the

IRA (Fianna na hEireann); the women’s branch of the IRA (Cumann na mBan); an IRA

splinter group (Saor Eire); and two loyalist terrorist groups, the Ulster Freedom

Fighters (UFF) and the Red Hand Commando. Until 1974, Sinn Fein, the political

voice of the IRA, was also proscribed. Proscription considered “any member of that

organisation, or anyone who, financially or otherwise, supports that organisation,

commits an offence.”153 Essentially anyone associated with any of the before

mentioned terrorist organisations was fundamentally breaking the law and whilst

152

Ibid., 9 153

Gardiner, 65.

55

there were a number of terrorist groups, “PIRA’s capabilities posed the most potent

threat,”154 to the security forces.

Lieutenant General Sir Frank King, the General Officer Commanding (GOC) Northern

Ireland, from February 1973 until August 1975, in his evidence to the Gardiner

Committee, recalled how courts in Southern Ireland would imprison a man solely on

the basis of a police officer stating he knew the man in question to be a member of

the IRA. However the British Army felt this was not the right course of action and

needed more proof to imprison a man,155 regardless of how frustrating it could be.

This would have eased much of the pressure for the security forces and King

explained surveillance officers knew who IRA members were in their areas but were

unable to arrest them for lack of concrete evidence,156 that would stand up in a court

of law. Paddy Devlin an outspoken Republican told Lt Gen King that he had the right

people inside,157 which it is fair to say he would never have publicly voiced,

displaying that the security forces were successful to an extent. The Army had a

satisfactory relationship with the police in Southern Ireland (the Gardai) but less so

with the Irish Army.158 This was partly due to the problematic if not disconcerting

situation the Irish Army were in, they were not allowed to arrest anyone, yet the

Gardai were unarmed, so in most situations which included confronting armed or

154

Brian Jackson, “Counter-Insurgency in a Long War, The British Experience in

Northern Ireland”, accessed November, 2011,

http://www.rand.org/pubs/reprints/2007/RAND_RP1247.pdf. 155

TNA, CJ 4/674, Committee on Terrorism and Subversion: documents 1-23

circulated to Committee. Transcripts of oral evidence. July 7th

– Aug 29th

1974. 156

Gardiner, 17. 157

Ibid., 23. 158

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974.

56

dangerous terrorists, the Irish Army and the police had to work as one unit.159

Section 19 of the Emergency Provisions Act 1973 had the value of discouraging those

who may have been persuaded to support organisations such as the IRA or loyalist

groups, financially or otherwise, and diminish the notion that only active members of

these organisations were criminal. Without financial contributions and moral

support, organisations such as the IRA would not have been able to flourish; it was

the inconspicuous aid that underpinned terrorism. Organisations with the USA were

the largest foreign financial contributor to the IRA; the US organisation NORAID, also

known as, the Irish Northern Aid Committee, collected large cash amounts for PIRA,

for example, about £100,000 in 1974.160 The IRA would not have been able to create

enough revenue to maintain the level of ferocity that it did without external support.

Therefore it was crucial that contributors were impeded. For these reasons Gardiner

recommended the retention of section 19 for the proscription of organisations,

which encouraged or condoned such crimes made by terrorism.161

Gardiner identified a loophole in the British criminal justice system regarding the

offence of terrorism. Principally those who were charged with acts of terrorism

were those who committed the specific crimes and however much this may seem

justified, the men who committed the crimes were all but pawns in a colossal game

of chess and essentially could be replaced by the next man who wanted to risk his

life in the name of Ireland, or in the case of loyalists in the name of Queen and

159

Ibid. 160

Ministry of Defence, Operation Banner: An Analysis of Military Operations in

Northern Ireland, Army Code 71842, (London: MoD, July 2006). 161

Gardiner, 69.

57

country. The point that was missed was those who organised and trained these men

and women to commit such atrocities escaped justice and imprisonment because

they “do not themselves commit specific offences.”162 As Sir Frank King explained,

“without these men, the gunman or bomber would lose his supplies, his direction,

and without the intimidation they wield, his protection.”163 King expressed his belief

to Gardiner that it was the organisers who were the driving force behind terrorism

and who deserved the punishment of the law, but since they rarely committed acts

of violence the normal processes of the laws were insufficient since witnesses would

not come forward; therefore the security forces had to rely on systems such as

detention if they were to protect society.164 Gardiner therefore introduced an

uncomplicated statutory offence relating to terrorism as follows:

Any person who is concerned in the commission or attempted commission of

any act of terrorism or in directing, organising, training or recruiting persons

for the purpose of terrorism shall be liable on conviction on indictment to

imprisonment for a term not exceeding 15 years.165

Gardiner hoped that by introducing this offence it would result in the prosecutions

for this offence of some people who at this stage could only be dealt with by the

detention procedure.166 Despite Gardiner incorporating these into the report, it was

futile, as prosecutors still needed concrete evidence that would stand up in a court

of law. Therefore, the heart of terrorist activities and the most perilous members

were free to continue planning and organising terrorist activities, as it was a difficult 162

Ibid., 70 163

TNA, CJ 4/691, Gardiner Committee on Terrorism and Subversion: circulated

documents and evidence, Letter from GOC to Lord Gardiner, 24 October 1974. 164

Ibid. 165

Ibid. 166

Ibid., 70

58

and drawn out process trying to have these individuals prosecuted. The definition of

terrorism in section 28(1) of the 1973 Act had been modified by Gardiner to include

the means of the use of terrorism for sectarian ends in addition to political

motivation. Gardiner believed that although the majority of terrorism was

compelled by political causes, a small number was driven by sectarian hatred:

167“therefore, to eliminate the possibility of a successful but unmeritorious, technical

defence that the alleged act of terrorism had a sectarian but not a political

motivation”168the Committee recommended this extension of definition in the 1973

Act.

The Committee believed section 23 of the 1973 Act and section 2 of the Prevention

of Terrorism (Temporary Provisions) Act 1974 of the offence of disguise, to be

limited; as this offence only applied to members of proscribed organisations.

Therefore, the Committee introduced a new offence of disguise as follows:

Any person who in a public or open place or in the vicinity of a dwelling

house (whether or not he enters or seeks to enter such dwelling) wears any

form of disguise shall be liable on summary conviction to imprisonment for a

term not exceeding six months or to a fine not exceeding £400 or both

provided always that it shall be a defence that there was just cause or

reasonable excuse for such behaviour.

167

Ibid., 71 168

Ibid.

59

The difficulty in proving a person to be a member of a proscribed organisation meant

this new offence of disguise, would effectively allow the security forces to lawfully

arrest anyone wearing a disguise.

One of the main aggravations for the security forces was the media, which bore “a

degree of responsibility for the encouragement of terrorist activity in Northern

Ireland.”169 General King believed the security forces could never win the

propaganda war in Northern Ireland with the less said the better. An example given

by King to show the manipulation of the media was:

The commander of an armoured car arrested a boy for throwing stones. The

boy was asked whether he wanted to march through the streets to the police

station or ride on the armoured car. He chose the latter course and, so that

he could not jump off, a handcuff was put on him. The next day the Irish

News carried a story about new terror tactics by the army. According to this

paper we had not been carrying a boy; we had been carrying boys, and they

had been lashed to an armoured car being driven at high speed through the

streets of Belfast as a prelude to interrogation.170

As King and the Committee agreed, most articles in the press were fabricated,

resulting in ill-founded and false allegations being made against the security

forces.171 As King explained, it did not help the security forces to deny a certain

story, as 30 witnesses were produced immediately and they were all prepared to

169

Ibid., 73 170

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974. 171

Gardiner, Para. 73.

60

swear that it happened.172 Furthermore, advertisements from terrorist

organisations were a common appearance in many newspapers and magazines. King

produced an example of a typical advertisement as:

The Belfast Brigade of the IRA express their solidarity with their comrades

being tortured to death by the British Imperialist Government in England.

You are an example to the soldiers of the Belfast Brigade.173

The Committee recommended the offence for editors, printers and publishers of

newspapers to publish anything, which purported to be an advertisement for or on

behalf of an illegal organisation or part of it. Furthermore, the Committee suggested

that the Press Council should closely examine the reconciliation of the reporting of

the terrorist activities with the public interest.174 However, as Gardiner elucidates,

“the IRA have only to call themselves Sinn Fein to be in the clear.”175 Freedom of

speech within democratic countries such as Britain made it impossible to censor

what the press published. Britain were not fighting a secret war and therefore the

media frenzy that encapsulated Northern Ireland was to be expected and dealt with

professionally. The proposed offences made by the Committee were an attempt to

aid the security forces’ battle in Northern Ireland, but were the actual powers of the

security forces satisfactory. This is the question the next section aims to answer.

172

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974. 173

Ibid. 174

Gardiner, 74-75. 175

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974.

61

Powers of the Security Forces

“We are a democracy, we cannot go around

shooting everyone we think is a terrorist.”176

Powers used by the security forces were constantly scrutinised, and produced the

most conflicting arguments on the role of the security forces in Northern Ireland. It

is automatically assumed the role of the Army is primarily infantry and that of

combat, but the soldiers in Northern Ireland had an array of jobs, for example,

occasionally soldiers had to live in houses as to not allow squatters in before the

rightful tenants arrived, a menial job one would not associate with the army. Of

16,500 soldiers in Northern Ireland only a fraction of those actually operated as

infantry soldiers, with the rest varying from cooks, mechanics, those who ferry

prisoners, and so on. In East Belfast, there were 90 military police to cover a

population of around 100,000,177 which was one military police officer to every 1,111

people. The Army was divided into three categories of battalions:

I. Some battalions formed part of the permanent garrisons of the

province. They lived in permanent barracks and their tour lasted two

years.

II. The majority of battalions sent to the province on a four month tour

called roulement tours. They were billeted in Emergency

176

Sir Frank Cooper, ‘Part 1 – The Secret War’, accessed March, 2012,

http://news.bbc.co.uk/hi/english/static/in_depth/northern_ireland/2000/brits/. 177

TNA, CJ 4/674, Committee on Terrorism and Subversion: documents 1-23

circulated to Committee. Transcripts of oral evidence. July 7th

– August 29th

1974.

62

accommodation such as requisitioned halls of schools or portakabin

camps.

III. Battalions undertaking emergency or unplanned tours to meet a

particular situation. They were stationed only for a matter of weeks

and commonly known as ‘spearhead’ or standby battalions.178

Under section 16 of the 1973 Act any member of the armed forces, or any constable

of the RUC, had the power to stop and question on suspicion:

Any person for the purpose of ascertaining that person’s identity and

movements and what he knows concerning any recent explosion or other

incident endangering life, or concerning any person killed or injured in any

such explosion or incident.179

Gardiner wished to elaborate more on when the security forces could stop and

question a person by adding “or any one or more of these matters” to the end of this

section, thereby allowing the security forces to stop and question any person purely

to ascertain their identity, which Gardiner accepted was essential if the security

forces’ job was to be carried out properly and effectively. It was difficult for the

security forces to identity IRA members, as they had the appearance of ordinary

civilians, blending into society, thereby making it difficult to distinguish and

segregate these individuals from the rest of the population.

The powers of arrest proved more complicated in distinguishing between the

powers of the armed forces and the RUC. In regards to arresting suspects, the army

178

Michael Dewar, RGJ, The British Army in Northern Ireland (London: Guildford,

1985), 55. 179

Gardiner, 89.

63

had a far more diminished role and held an inferior position to the RUC. Under

sections 10 and 11 of the 1973 Act, a constable of the RUC “may arrest without

warrant anyone he suspects of being a terrorist or anyone he suspects of

committing, having committed, or being about to commit a scheduled offence or any

other offence under the 1973 Act.”180 Once arrested by a constable, suspects could

be held up to 72 hours. In contrast, under section 12 of the 1973 Act, the armed

forces were prohibited from arresting anyone they suspected of being a terrorist, but

were able to “arrest without warrant, and detain for no more than four hours, a

person whom he suspects of committing, having committed or being about to

commit any offence.”181 The armed forces only conformed to the law if the arresting

soldier made it clear he was arresting as a member of the armed forces. Four hours

was the maximum time the armed forces could hold a suspect purely to ascertain

their identity and due to most suspects having aliases, General King explained it

often took this long if not longer to acquire correct identities.182 It was also different

to the law in England, which allowed for the legal detention of five days after the

Prevention of Terrorism Act 1974. In King’s opinion, the holding and interrogation

time in Northern Ireland should have been extended to 120 hours with no visitors or

solicitors permitted; he declared, ‘“I do not know how the British police did it, but

the Price sisters were inured for two or three months. They were interrogated daily

by teams of policemen.”’183 To King, the interrogation process in Northern Ireland

was inadequate; the RUC were ineffective in successful interrogation, but the Army 180

Gardiner, 79. 181

TNA, Northern Ireland (Emergency Provisions) Act 1973, c. 53. (HMSO), Part II,

Section 12. [hereafter 1973 Act]. 182

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974. 183

Ibid.

64

lacked the powers needed to personally engage in effective interrogation.184 If

suspects were then brought to the police station by the armed forces, they were

interrogated by the Criminal Investigation Department (CID); only when there was

no prospect of a criminal charge were they handed to Special Branch to be

interrogated.185 The Chief Constable of the RUC, J B Flanaghan, explained that

Special Branch were not guided by the Judges Rules as they were not seeking

evidence for presentation in court, but seeking information, to aid the CID.186 The

Army was accused of breaching their time limit on numerous occasions, for example:

on August 21st1973, five men from the Lenadoon area of Belfast were arrested at

7am; two were released and three were handed into RUC custody at 12.20pm.187

The perspective of the Army continued to be that Special Branch was not proficient

enough to interrogate suspected terrorists and the Army expressed irritation at the

lack of information gained by Special Branch. Brigadier Garrett voiced the

frustrations of the Army to the Gardiner committee by declaring that very little, if

any, intelligence or information was coming as a result of Special Branch

interrogation, because they were fearful of allegations of brutality.188 King also

believed the RUC did not have the manpower to indulge in the form of interrogation

that was necessary to gain sufficient intelligence.189 The views of the Army were

familiar to Flanaghan, who in his evidence clarified that the Army did not get as

184

Ibid. 185

TNA, CJ 4/670, Gardiner Committee on Terrorism and Subversion: papers and

other evidence submitted; transcripts of evidence. August 29th

– November 8th

1974. 186

Ibid, Evidence of the J.B Flanaghan, Chief Constable, RUC. 187

TNA, CJ 4/688, Gardiner Committee on Terrorism and Subversion: documents 57-

68. Evidence from public departments and organisations, members of Committee,

other non-official bodies and members of the public. Sept 16th

- 22nd

1973. 188

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974. 189

Ibid.

65

much intelligence as they would have liked from the police but explained that it was

the job of the police to bring suspects before the courts rather than interrogate

them for intelligence.190 The problem between the Army and the RUC over

intelligence was evident: On the 18th September 1974, Merlyn Rees, the Secretary of

State for Northern Ireland between 1974 and 1976, expressed his frustration that

both the Army and Special Branch could not be brought together to work as one

organisation as the Army simply did not trust the police.191

In effecting an arrest under sections 10 and 11 of the 1973 Act, a constable was

permitted to search any premises where a suspect was suspected of being, whereas

a member of the armed forces could only enter a property where the person was

known to be. The armed forces needed more evidence to enter properties than the

RUC, as the Army were simply there to aid the RUC not the other way round. A

common complaint was that of “wanton destruction of property and theft by

soldiers during these searches. When these complaints are passed on to the RUC,

only token numbers of soldiers are prosecuted.”192 In regards to the accusations of

home-wrecking, King stated, to Gardiner, that when the army entered a house, the

homeowner was made to sign a certificate affirming the soldiers had not caused any

190

TNA, CJ 4/670, Gardiner Committee on Terrorism and Subversion: papers and

other evidence submitted; transcripts of evidence. Evidence of J B Flanaghan Esq,

Chief Constable, RUC, 8 November 1974. 191

TNA, CJ 4/691, Gardiner Committee on Terrorism and Subversion: circulated

documents and evidence, Notes on after-dinner discussion with secretary of state, 18

September 1974. 192

TNA, CJ 4/688, Gardiner Committee on Terrorism and Subversion: documents 57-

68. Evidence from public departments and organisations, members of Committee,

other non-official bodies and members of the public. Sept 16th

- 22nd

1973.

66

damage,193 thereby preventing any unwarranted complaints and in theory

safeguarding the soldiers. Without this safeguard it was impossible to determine

whether damage caused to the house was generated by the security forces or

whether it was as a result of homeowners defiling their own homes for retribution

against the security forces. In a ‘Dossier on Harassment & Brutality By the British

Army In Northern Ireland’ produced by the NICRA, the argument is made that

regardless of whether the Army acted in accordance with the law, individuals would

always disagree to the procedure. This being because “having your home or body

searched is a very distasteful procedure, even when the soldiers are polite, and no

damage is done. This is a fairly typical reaction to a search.”194 In this same dossier,

a woman whose home was searched commented, “on the raids there was no

breaking of the Special Powers’ Act. The Officer in charge read out the section of the

Special Powers’ Act he was operating under. He insisted I accompanied throughout

the search. No damage was done and everything was left tidy… I was in a cold anger

at this invasion of my house… why should the Irishman’s home be the British Army

playground.”195 King also put forward the argument that if an independent tribunal

for complaints against the army during these searches was established then

everyone would have been tempted to complain for trivial things making it

extremely difficult for the Army to carry out their job in Northern Ireland.196 Once

arrested, King explained how all detainees were medically examined before and

193

TNA CJ 4/672, Gardiner Committee on Terrorism and Subversion: records of oral

evidence. September 5th

– November 1st 1974.

194Northern Ireland Civil Rights Association, Dossier on Harrassment & Brutality By

the British Army In Northern Ireland – A Sample of Typical Cases, (Belfast: Northern

Ireland Civil Rights Movement, 1972), 3. 195

Ibid., 4 196

TNA CJ 4/672, Gardiner Committee on Terrorism and Subversion: records of oral

evidence. September 5th

– November 1st 1974. Evidence of the GOC.

67

after, in the event that a false formal complaint surfaced, such as a cigarette burn or

bruise which was not caused by a member of the Security Forces but which could

not be proved otherwise.197

An individual whose home was entered by the Army was William John Moore.

Moore recounted in his evidence to a county court in 1972, the day he was arrested

and how he was detained for 15 days. He was sleeping when the army broke into his

house and shouted ‘“William Moore you are arrested under the special powers act

1922”’; Moore tried to say he was Sean Moore, illustrating a clear attempt at

deception but the army would not listen and arrested him anyway. Moore was then

made to sit on a chair facing a wall for a couple of hours – after which a soldier came

round and asked all the detainees if they would like a cup of tea, but Moore refused.

An important statement Moore verifies is the confirmation of a medical examination

and certificate he was made to sign whist being detained.198 He was not ill-treated,

except for the refusal by a solider to let him urinate, until a sergeant of the Military

Police entered the room and allowed him to go straight away.199 A point that can be

made from Moore’s evidence is the difference of actions and morality between

members of the Army. Rod Thornton argues there will always be cases of

misbehaviour within the Army as they are not robots, rationally all soldiers should

197

Ibid. 198

TNA, CJ 4/678, Gardiner Committee on Terrorism and Subversion: papers and

other evidence submitted; transcripts of oral evidence. Individual cases of alleged

brutality; statements and case folders, Aug 17th

– October 3rd

1971. 199

Ibid.

68

act the same but they do not, as the Army is made up of individuals not a block

unit.200

Partiality was a serious claim and belief among segments of the Catholic community

against the security forces. Thomas Conaty, Chairman of the Minority Rights

Association, enlightened the Gardiner Committee to allegations from the minority

community of partiality from the security forces when searching for arms and

ammunition. He supported these claims by revealing security chiefs informed him of

their knowledge of arms existing in areas which supported Government policies and

it was common for searches not to be made in these areas, but searches were

constantly made in areas which did not support the government, i.e. Nationalist

areas.201 In addition, in the month of November 1974, 4,757 Ibs of explosives were

found in Catholic areas with just 6 Ibs found in Protestant areas,202 showing the

substantial difference between Republican and Loyalist areas, and leaves the

question of whether this was simply because the former had more explosives or

whether the latter were simply not searched. Although just before the time frame

of this thesis, the ‘Falls Road Curfew’ or ‘Rape of the Falls’ as it is known to the

Catholic community, is an apt example at displaying the claims of partiality from the

security forces when conducting house searches. The Army had been under

200 Rod Thornton, “The ‘stickiness‛ of cultural norms: The role of Victorian values in

British Army tactics, techniques and procedures” (Lecture, London, September 15-16,

2011). 201

TNA, CJ 4/678, Gardiner Committee on Terrorism and Subversion: papers and

other evidence submitted; transcripts of oral evidence. Individual cases of alleged

brutality; statements and case folders. Aug 17th

– October 3rd

1971. 202

TNA, CJ 4/1040, Gardiner Committee: Torture and the United Nationas (UN)

Evidence by NIO (Prison Division) on the NI Penal System speaking notes, July 21st

1973 – December 4th

1975.

69

significant pressure to ‘sort out’ the Lower Falls and they were left with relatively

few options but to impose a 72-hour curfew. Although 107 weapons, 25Ibs of

explosives and 21,000 rounds of ammunition were found, what was intended as

taking a hard line against violence, it did not in practice discriminate between those

perpetrating violence and the remainder of the community, 203bearing hard on the

Catholic community. In 1973 alone some 75,000 homes were searched, which was

nearly 20% of all houses in Northern Ireland at that time.204 King explained to the

Gardiner Committee, that the Army operated in Catholic areas and the RUC

operated in Protestant areas, hence why the Army did not arrest as many

Protestants; it was the RUCs responsibility.205 Furthermore, when considering

partiality from the security forces Thomas Conaty explained how General Tuzo the

General Officer Commanding (GOC) of Northern Ireland (1971-1973), intended to

release a statement worded:

Anyone appearing on the streets of Belfast with guns, either licensed or

unlicensed, is an enemy of the Security Forces.206

This was to reassure the minority community against the fear of a Protestant

backlash; however according to Thomas Conaty and Canon Murphy this statement

was not made following a confession from Tuzo that he had been prohibited from

doing so. The reasons for the prohibition of this statement are unknown, but it is

203

Ministry of Defence, Operation Banner: An Analysis of Military Operations in

Northern Ireland, Army Code 71842, (London: MoD, July 2006), Para. 216. 204

Brice Dickson, The Protection of Human Rights: Lessons from Northern Ireland

(Lecture, London, April 6 , 2000).

205 TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974. 206

TNA, CJ 4/678, Gardiner Committee on Terrorism and Subversion: papers and

other evidence submitted; transcripts of oral evidence. Individual cases of alleged

brutality; statements and case folders. Aug 17th

– Oct 3rd

1971.

70

insinuated that the security forces did not want to exasperate the majority

community, and this made Conaty “further satisfied that the activities of the Security

Chiefs and the direction of their operations was influenced from day to day political

considerations.”207 The CCDC in their evidence to the Gardiner Committee

controversially stated: the assassination of Catholics, merely because they were

Catholics, was never identified as a problem. On the contrary, as a background brief

for ministers illustrated, the police had more success against the Loyalists. Of 12

arrested in regards to sectarian assassinations, all were Protestants as there was

more cooperation from the Protestant community, aiding the security forces.208

Again, the police had more success against the Protestant community as the police

were assigned to regulate the Protestant areas rather than Catholic regions. The

Army did not arrest Protestants in the same numbers they did Catholics but this did

not mean Protestants went unpunished. Between 1st June to 30th November 1974,

715 people were charged with scheduled offences of which 379 were Catholic and

336 were Protestant,209 illustrating Protestants were not favoured and did not

escape punishment.

Various witnesses who appeared before the Gardiner Committee believed the

powers used by the security forces were unwarranted and somewhat aggressive and

this created a cause for antagonism, therefore these powers should be reduced. The

Central Citizens Defence Committee (CCDC) for one believed the 1973 Act gave “too

much licence to the Security Forces to invade the privacy and infringe the basic

207

Ibid. 208

Ibid. 209

Ibid.

71

rights and liberties of ordinary citizens.”210 In addition, Paddy Devlin, a member of

the SDLP, stated to the Gardiner committee that he had personally seen hundreds of

detailed complaints of the Security Forces harassment and provocative behaviour.211

However, Gardiner stated, “the Army and the police have acted with considerable

restraint in very difficult circumstances.”212 It is impossible to ascertain an exact

level of force required and what over steps the mark as aggressive, especially when

it is an army conducting an arrest as they are taught to be resilient. To Gardiner, the

core complaints materialised from Army methods, which were completely

contrasting, to the procedures used by the RUC, as both are two completely

different forms of law enforcement.213 In areas that the RUC were not accepted, the

Army had to play a policing role, most soldiers were not trained or experienced in

police duties resulting in the methods that were applied being more intensive and

causing more inconvenience to innocent members of the public than police methods

would. As Gardiner explains, although they were “effective in reducing

terrorism,”214 they were not as effective as normal criminal investigation methods at

bringing criminals to trial before the ordinary courts. Gardiner asserted that the

army methods used would naturally lead to charges of harassment but the

Committee was doubtful the army could act in any other way to gain the intelligence

210

Central Citizens Defence Committee, Recommendations on the Emergency Act

1973, TNA, CJ 4/688, Gardiner Committee on Terrorism and Subversion: documents

57-68. Evidence from public departments and organisations, members of Committee,

other non-official bodies and members of the public. Sept 16th

- 22nd

1973. 211

TNA, CJ 4/678, Gardiner Committee on Terrorism and Subversion: papers and

other evidence submitted; transcripts of oral evidence. Individual cases of alleged

brutality; statements and case folders. Aug 17th

– Oct 3rd

1971. 212

Gardiner, 83. 213

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974. 214

Gardiner, 95.

72

it required, as military units were stationed in Northern Ireland for only four

months.215 The Chief Constable of the RUC, J. B. Flanaghan, stated to the Gardiner

Committee that all allegations against the police were investigated and reported to

the Director of Public Prosecutions (DPP) regardless of whether the complaints had

substance or not.216 Roger Darlington, Special Advisor to the Secretary of State in

Northern Ireland, in his observations on the Gardiner Report, disputes this assertion

from Flanaghan by observing that out of 2617 complaints made against the police

only three had resulted in convictions.217 The impression is then given that although

all complaints are passed onto the DPP, they were not always considered worthwhile

or were simply not substantiated. The Committee were satisfied that complaints

were fully investigated, but understood the lack of public confidence in a system in

which the police were responsible for investigating complaints against

themselves.218 In regards to complaints against the Army, King verified to the

Gardiner Committee that for every shooting incident there was a formal

investigation by military policemen, as well as the RUC, and all the papers went to

the DUP, further commenting that one could convince very few Catholics that this

was so, but it was.219 The process for the security forces was not completely

different to that of civilians. For example, pleading guilty to actual bodily harm

before the Belfast City Commission on 18th December 1974, a Parachute Regiment

215

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974. 216

TNA, CJ 4/670, Gardiner Committee on Terrorism and Subversion: papers and

other evidence submitted; transcripts of evidence. Aug 29th

– November 8th

1974. 217

TNA, CJ 4/877, Gardiner Committee on Terrorism and Subversion: written

submissions to Committee and oral evidence. December 2nd

1974 – February 18th

1975. 218

Gardiner, 96. 219

TNA CJ 4/672, Gardiner Committee on Terrorism and Subversion: records of oral

evidence. Evidence of the GOC. September 5th

– November 1st 1974.

73

Sergeant was given a suspended sentence and a £100 fine.220 In 1973 a civilian man

pleading guilty to assault faced a £100 fine and in 1974 one 18 year old civilian was

found guilty of actual bodily harm and fined £50. Appearing before the Lurgan Petty

Sessions on 21th November 1974, three soldiers of 3rd Royal Regiment of Fusilers

were found guilty of actual bodily harm and sentenced to six months

imprisonment.221 Moreover, King revealed that each month the Army paid large

sums of money as a result of wrongful arrest, injuries, damage done during searches,

and so on, declaring “that is proof of the fact that those who make complaints are

looked after reasonably well.”222 In 1973 a precedent was set by the case of Oliver

Kelly who was awarded £400 in damages in court for wrongful arrest and false

imprisonment (internment), as out of court settlements were then offered to all who

made claims.223 The Committee suggested the introduction of an independent

means of investigating complaints against the police and considered extending this

proposal to the Army, with the anticipation of restoring confidence in the security

forces.224

There was a big push from the Army for detainees to gain a job once released from

detention, in an attempt to break the cycle of men re-joining Para-military

organisations, simply because that was all they knew or the only option available to

them. Of 65 men released, 24 went back to Andersonstown, a heavily populated

220

Huw Benett, “Smoke Without Fire? Allegations Against the British Army in

Northern Ireland, 1972-5,” Twentieth Century British History 24, no. 2 (2013): 289. 221

Ibid. 222

TNA CJ 4/672, Gardiner Committee on Terrorism and Subversion: records of oral

evidence. Evidence of the GOC. September 5th

– November 1st 1974.

223 Huw Benett, “Smoke Without Fire? Allegations Against the British Army in

Northern Ireland, 1972-5,” Twentieth Century British History 24, no. 2 (2013): 289. 224

Gardiner, 98.

74

Republican area of Belfast, General King “checked with the Commanding Officer two

weeks later how many of these men had jobs and only one of the 24 men had a job

and this was found for him by the Army, although he was a hard terrorist.”225 King

wanted to use government training centres to train detainees released to do a job

and offer these men a new house in Craigavon, in North Armagh, a condition King

thought should be a term of release.226 However, King was told it would be too

difficult to establish such a system, but the avidity of the Army to aid these men in

addition to benefiting the overall situation in Northern Ireland, was there.227 The

Gardiner Report published a recommendation for a major non-governmental

organisation to initiate, support and bestow cash grants to ex-detainees and their

families if needed. Professor Kathleen Jones in a memo to the Secretary of State

declared she had spoken to Lewis Waddilove the Director of the Joseph Rowntree

memorial trust and he and Lord Seebohm the Chairman of the trust, was highly

interested in this kind of scheme, in addition to Anthony Wilson, the Director of the

Cadbury Trust. Although Professor Jones insinuated these two Directors were not

“anxious to work together.”228 The Gardiner Committee was interested in long-term

support in Northern Ireland to those who were detained and required financial aid,

signifying regard for detainees and their families once released from detention.229

225

TNA CJ 4/672, Gardiner Committee on Terrorism and Subversion: records of oral

evidence. Evidence of the GOC. September 5th

– November 1st 1974.

226 Ibid.

227 Ibid.

228 TNA CJ 4/877, Gardiner Committee on Terrorism and Subversion: written

submissions to Committee and oral evidence, December 2nd

1974 – February 18th

1975. 229

Gardiner, 177.

75

The powers of the security forces were in place to not only effectively try to contain

terrorism in Northern Ireland but to also protect the forces themselves. The main

issue for the soldier was the guidance for opening fire which was known as ‘the

yellow card’, it had no force in law itself, but sought to reflect the law of self-defence

and identify the circumstance when potentially lethal force may be used.230 General

King explained that soldiers could not question their methods; especially whether or

not they could shoot in case they would be charged, as it had to be instantaneous or

it would be too late.231 An example given was the Private Barlow case: Private

Barlow got cut off from his squad by women and executed by the IRA, but if it was

the other way round and he had escaped and shot a woman then he probably would

have been up for a murder charge or he would have been court martialled if he

escaped and got back to his battalion for losing his rifle – so as King stated: “almost

the best thing that could have happened to Barlow from the Army’s point of view

was that he was murdered.”232 Deputy Chief Constable Bailie explained to Lord

McDermott that the Army had the final word on the steps which were necessary to

keep peace, because in certain areas it could not be the police as they were persona

non grata, the police went in to serve summonses and execute legal processes, albeit

under the might of the Army.233 As a former Senior Army Officer explains, the army

were operating blindly, with little thought to political ‘cause and effect,’ the game

230

Ministry of Defence, Operation Banner: An Analysis of Military Operations in

Northern Ireland, Army Code 71842, (London: MoD, July 2006), Para. 427. 231

TNA, CJ 4/674, Committee on Terrorism and Subversion: documents 1-23

circulated to Committee. Transcripts of oral evidence. Evidence of the GOC. July 18th

1974. 232

Ibid. 233

TNA CJ 4/1313, Gardiner Committee on Terrorism and Subversion: papers;

transcript of oral evidence given by Royal Ulster Constabulary (RUC), 18 July 1974.

76

plan was developing on a day-to-day basis as they tried to deal with the immediate

challenges they faced.234

Detention

The Detention of Terrorists (Northern Ireland) Order was introduced 7th November

1972 and received parliamentary approval on 11th December 1972. This was

introduced as an alternative to internment, which according to Michael Cunningham

had three major disadvantages:

1. A settlement involving constitutional nationalists was unlikely to

happen whilst internment continued.

2. It damaged Britain’s international reputation and made relations with

the Republic of Ireland more difficult.

3. It emphasised the political nature of the conflict whereas normally

legal procedures would allow the government to present the

violence as criminal in origin.235

Following an arrest under section 10 of the 1973 Act, alleged terrorists could legally

be detained without trial and without the normal safeguards provided under

common law. Detention was a modified form of internment236and dismissed the

judicial procedure in favour of an Interim Custody Order (ICO) signed by the

234

John Bew and Martyn Frampton and Iñigo Gurruchaga, Talking to Terrorists

(London: C. Hurst & Co., 2009), 37. 235

Michael Cunningham, British government policy in Northern Ireland 1969-2000

(Manchester: Manchester University Press, 2001), 20. 236

Ibid.

77

Secretary of State, essentially giving the Secretary of State the executive authority to

detain persons suspected of terrorism. This controversial process was deemed as

unconstitutional in a democracy such as Britain but it is “justified in a democratic

society in times of the gravest emergency, for the purpose of the greater protection

of the public.”237 A general notion among many witnesses to the Gardiner

Committee, such as Howard-Drake of the Northern Ireland Office, believed an

inquisitional system would be more reasonable as it would allow one to acquire the

truth more accurately but an alternative to detention could not be advised238at the

time. Republicans themselves voiced the necessity of detention for the Security

Forces to contain terrorism. Mr. Jarman revealed to the committee that a PIRA

intelligence officer remarked after his arrest that detention was necessary if the

Security Forces wanted to ‘catch the big fish’ as the normal courts would never catch

them.239 Criminal courts were inadequate in imprisoning terrorists, as sufficient

evidence was needed that would stand in a court of law, which the security forces in

many cases lacked, and terrorists knew this. Gardiner acknowledged that material

witnesses refused to testify on peril of their lives, and the law would not accept

hearsay evidence; furthermore police officers that had knowledge about the

commission of certain offences found their conclusions inadmissible in court,

because they could not satisfy the law’s stringent requirements. So detention was

237

Gardiner, 118. 238

TNA CJ 4/675, Gardiner Committee on Terrorism and Subversion: documents 24-

48 circulated to Committee. Transcripts of oral evidence. August 29th

– October 18th

1974. 239

Ibid.

78

an acceptable method to use in extreme circumstances, as the courts could not be

expected to maintain peace and order if they had to act alone.240

The impression that anyone could be thrown into detention without any evidence

should be squashed, as the procedure to gain an ICO was not a light process.

Compared to Internment, Detention was a more selective process and precise with

whom was detained. After a person was suspected of being a terrorist, “police and

army intelligence reports and other information were evaluated, graded and

summarized by the security agencies and officials in the Northern Ireland

office”241before the Secretary of State made a final and scrutinized conclusion as to

whether the person could be detained under the 1973 Act. Frank King commented

to the Gardiner Committee that the Secretary of State was not a pushover as the

army had difficulty in getting him to sign certain ICOs. Between 1st July and 31st

October 1974, 329 ICOs were applied for, the Secretary of State signed 246, refusing

83, giving an overall percentage during that period of 74%. The Army applied for

ICOs 95% of the time, but it was the police as a point of fact, who put forward the

cases, providing “the administrative machinery for presenting these to the Secretary

of State.”242 The difficulty of getting the Secretary of State to sign ICOs was in view

of the level of violence and terrorism in the province at the time; if a certain area

saw a high level of violence over a short period of time then ICOs were more likely to

be signed than if there were a couple weeks of relative peace. King explained in his

240

Gardiner, 140. 241

Ibid. 242

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974.

79

evidence that ICOs in this instance were useful as it gave the army a ‘pressure valve’

during tempestuous times.243

An ICO could not detain a suspected terrorist for more than 28 days except if the

Chief Constable of the RUC referred the case to a commissioner; once this was done

the suspected terrorist could be held indefinitely until his case had been decided. A

problem, however, was there was no set time in which a prisoner had to wait before

his/hers case was referred to a commissioner; the average wait was a couple of

months. The arrested persons were separated into three categories under the arrest

policy directive:

Category I = those involved in terrorist activity against whom evidence is

available on the basis of which criminal charges may be preferred.

Category II = those sought for interview in connection with crimes on which

intelligence is available.

Category III = those against whom there is no direct evidence or intelligence

of personal involvement in individual acts of violence but who by reason of

their position are bound to have been involved in the direction of acts of

terrorism by others.244

Once arrested, prisoners were not allowed to be subjected to torture or cruel,

inhuman or degrading treatment, which was “general principles enshrined in the

243

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974. 244

Ibid.

80

Geneva Convention to which the UK is signatory and therefore bound.”245 There was

a general acceptance that if this kind of treatment was not proved then the

statement, which was obtained, could be given in evidence in court. The accusation

of ill-treatment whilst being interviewed or interrogated was an recurrent

complication for officers trying to get a conviction, as judges simply would not

accept evidence if the prisoners mentioned they had endured any of the

unacceptable treatment. These accusations prolonged cases and in some instances

cases were thrown out of court for inadmissible evidence. The small print of the

rules when it came to conviction were extremely stringent, an example being, in

relation to the offence of ammunition and firearms: if the evidence found was solely

that there was ammunition found on the premises where the alleged offender was,

the prosecutor would not initiate a prosecution unless there was sufficient evidence

that the offender was connected to the ammunition.246 So unless the offenders

were more or less caught red handed, there was a high chance they would not be

prosecuted. The rigid rules of the judges and magistrates, made detention

invaluable to the army and the RUC, as the courts simply did not control or manage

the level of imprisonment that was required to protect society from terrorism.

The hearing of a detainee’s case was before one of about 20 Commissioners in the

Maze prison with a screen separating the detainee and Commissioner.247 These

Commissioners varied between Scottish sheriffs, English circuit judges and part-time 245

TNA, CJ 4/688, Gardiner Committee on Terrorism and Subversion: documents 57-

68. Evidence from public departments and organisations, members of Committee,

other non-official bodies and members of the public. Sept 16th

- 22nd

1973. 246

TNA, CJ 4/674, Committee on Terrorism and Subversion: documents 1-23

circulated to Committee. Transcripts of oral evidence. July 18th

1974. 247

Gardiner, 124.

81

recorders, whose experience and dispositions differed and as such different

conclusions were met by different Commissioners. The task of the Commissioners

was to enquire into the case for the purpose of deciding whether or not he was

satisfied that:

a. The suspected terrorist had been concerned in the commission or

attempted commission of any act of terrorism, or the direction,

organisation or training of persons for the purpose of terrorism; and

b. His detention was necessary for the protection of the public.248

If there was a “very high degree of probability” of both (a) and (b) the Commissioner

then made an order to detain the suspect, if there was not then the Commissioner

directed the suspect’s release. Therefore, at this stage the decision to detain or

release a suspect was made quasi-judicially and independently of the executive

branch of government.249 Problematically, hearings could not take place without the

suspect present, but most Republicans at this time refused to attend their hearings,

which resulted in a huge backlog of cases and a prolonging of cases for detainees,

culminating in protracted periods of detention. Judge Sir Ian Lewis explained that

detainees were able to delay commissioner’s proceedings by applying for review and

then refusing to turn up at the last minute,250 delaying the caseload considerably.

Army officers and members of Special Branch were the main contributors of

evidence for the Crown Prosecution, presenting their evidence behind screens to

protect their identity. Gardiner explains that, “a serious consequence of the

248

Ibid. 249

Ibid.,126-127 250

TNA CJ 4/675, Gardiner Committee on Terrorism and Subversion: documents 24-

48 circulated to Committee. Transcripts of oral evidence. Evidence of NIO Officials,

August 29th

– October 18th

1974.

82

concealment of identity of witnesses is that the respondent’s lawyer is handicapped

in the cross-examination which is essential for an effective adversarial procedure.”251

Controversially, the multitude of evidence acquired, was from paid informers who

were not present during the hearings but examined by the commissioners and

prosecution in private sittings. Evidence given in open sessions was primarily given

in camera, bar the respondent and his lawyer, with the subsequent result of the

respondent being cross-examined but not his accuser.252 If the Commissioner then

gave the respondent a detention order, an appeal could be made to the Appeals

Tribunal, which consisted of three members who appraised notes from the hearing.

The Secretary of State himself could release the respondent from detention if his

appeal was futile resulting in executive action, or the Secretary of State referred a

review case to the Commissioner. Cases had to be reviewed if suspects were

detained for longer than one year since the creation of a detention order or if

suspects have been detained for six months from the end of their last review.253

General King explained that detainees were graded as follows:

a. Might reform

b. Cannot be let out without grave risk

c. Cannot be let out under any circumstances254

Originally put forward by Professor Buchan and Professor Kelly, Gardiner suggested

the creation of a Detention Advisory Board, which would examine the cases of

251

Gardiner, 130. 252

Ibid., 132 253

Ibid., 135-137 254

TNA, CJ 4/1036, Committee: summaries of oral and written evidence. Lord

Gardiner’s committee on Terrorism and Subversion, January 1st 1971- December 31

st.

83

persons, intended for detention but would have no power to detain these people;

that would still remain the sole decision of the Secretary of State. The most

regressive point Gardiner made in this recommendation was that the “enquiry

should take place in private, and that witnesses should be questioned individually

and alone, without legal representation.”255 Gardiner acknowledged that this

process would “deprive the persons suspected of terrorism of the basic rights of

legal representation and cross-examination.”256 Yet, he believed this process would

enable officials to enhance the prospect of reaching the truth, in contrast to

Gardiner’s stance on British democracy and Human Rights laws, made clear in his

minority report to the Parker inquiry. Furthermore, evidence given by Mr P Badge

agrees with Gardiner that suspects should be heard in private. As Badge explains, in

a lot of cases the defence was not concerned with the question of whether or not a

man had engaged in acts of terrorism but was whether he was involved in a counter-

intelligence exercise to ascertain the security forces sources of information; every

time evidence was given in open court, of necessity there must have been a risk that

the security forces system was in some jeopardy.257 Badge deemed detention in the

long term as politically and militarily counter-productive, but considered that

detention should remain for a short duration for a fixed military objective.258

Additionally, Judge Lewis, in his evidence to the Gardiner Committee, believed the

most important part of a court hearing should be made in secret as if the whole

procedure was made public most people would not give evidence and therefore it

255

Gardiner, 161. 256

Ibid. 257

TNA CJ 4/1313, Gardiner Committee on Terrorism and Subversion: papers;

transcript of oral evidence given by Royal Ulster Constabulary (RUC), 18 July 1974. 258

Ibid.

84

would have been extremely hard to imprison terrorists.259 What the advisory panel

suggested was similar to the system already in place for potential detainees, except

it was independent of security agencies and therefore presumed to be more

impartial, which was sought by detainees and their families. Suspects were not

allowed legal representation but were however granted permission to stand before

the Advisory Board, but were restrained from being present when the Board was

questioning witnesses. The panel consisted of seven members of whom the

Secretary of State appointed a solicitor or civil servant as secretary to the board to

accelerate the assembly of documents and witnesses from the security forces and

government departments.260 In order to stop the problem of detaining suspects

longer than necessary, Gardiner set specific time limits to which a suspect could be

held from the start of the provisional custody order as follows:

(a) 7 days be allowed for service of a written notice upon the detainee

setting out the nature of the terrorist activities alleged against him;

(b) a further 21 days be allowed for the Board to submit their written report

to the Secretary of State;

(c) A further 7 days be allowed for the Secretary of State’s decision as to

whether to make a confirmed custody order or to direct the detainee’s

release.261

35 days was the maximum Gardiner would allow for a suspect to be detained unless

the suspect had been handed a confirmed custody order; if a detainee was held

259

TNA CJ 4/675, Gardiner Committee on Terrorism and Subversion: documents 24-

48 circulated to Committee. Transcripts of oral evidence. Evidence of NIO Officials,

August 29th

– October 18th

1974. 260

Gardiner, 164. 261

Ibid., 165.

85

longer than the time limits set then this would entitle the detainee to automatic

release. By setting a clear framework, Gardiner intended to avoid previous

confusion surrounding the duration of detention in addition to alleviating the

agitation of detainees, who were uncertain about the period of time which they

would be detained.

When weighing up the pros and cons of detention, the underlying reality of the

violence and fatalities in Northern Ireland must be retained. Within the Gardiner

Report, the arguments for detention were simple; it had to be done. Although

detention was considered unacceptable in most circumstances, it was necessary and

ought to be continued during the unusual and violent circumstances,262 which

existed in Northern Ireland during the sitting of the Gardiner Committee. As Sir

Frank King voiced, if society was to be protected, the Security Forces had to rely on

some system of detention.263 To then argue for the end of detention and the release

of these men was disturbing for the Army as these men had received no

rehabilitation, they entered detention violent, endured violent mind-sets throughout

detention and would no doubt re-enter a world of violence once released. The

levels of re-involvement in terrorist acts once released from detention corroborate

with this statement, as between January and July 1974, 64% of ICOs were converted

into detention orders. From the 36% not converted and released, equalling 50 men,

the army detected a 56% active re-involvement from 28 of the men released.

Furthermore, on a larger scale, between November 1972 and July 1974, 212 men

262

Ibid., 143. 263

TNA, CJ 4/691, Gardiner Committee on Terrorism and Subversion: circulated

documents and evidence. October 11th

-28th

1974.

86

were released from detention, from the men of whom the army discovered, 105

became re-involved in terrorist acts, totalling 50%.264 It was nonsensical to the army

that after securing terrorists out of circulation and fortifying these men in detention,

there was discussion on ending detention and releasing the same men the Army

fought to detain. The Army was now in a position in which for the first time they

could envisage success over the PIRA as a notable amount of terrorists were

detained which was invaluable to the security forces. From Intelligence reports

gained by the Army, the PIRA had judged that with numerous of their members

detained or in prison their violent movement would “soon begin to lack credibility

and support.”265 There was only so long the PIRA could operate without adequate

manpower needed to carry out terrorist acts. To further support this argument, the

same intelligence reports suggested that the Maze prison inferno and riots in other

prisons on 16th October 1974, was a deliberate act of anarchy from the PIRA in a bid

to incapacitate the prisons to a point which would enable prisoners to abscond.

The arguments against detention encompass a more democratic conviction. There

was a call for the abolition of detention from numerous witnesses all maintaining a

general judgement that if a person cannot be imprisoned for a criminal crime

through lack of evidence then it was unethical that they should be detained.266 The

Campaign for Democracy in Ulster (CDU) expressed the view that all detainees,

except those against whom serious crimes of violence can be substantiated, be

264

TNA, CJ 4/691, Gardiner Committee on Terrorism and Subversion: circulated

documents and evidence. October 11th

-28th

1974. 265

Ibid. 266

TNA, CJ 4/1036, Committee: summaries of oral and written evidence. Lord

Gardiner’s committee on Terrorism and Subversion, January 1st 1971- December 31

st.

87

released, adding that continued detention only benefited the terrorist organisations

by aiding recruitment and providing opportunities for schools of terrorism.267 This

reflects the opinion of the NICRA who deemed that if detention was used to hold

people that committed serious crimes, then it was inconsistent to maintain that they

would be released if the violence in Northern Ireland ceased; detainees should be

either convicted by a criminal court or released immediately, as people were only

detained for their political aspirations.268 The Gardiner Committee expressed

concerns that detention produced a profound resentment from the detainees, their

family and friends, which only instigated recruitment. The Maze Prison was an all-

inclusive training camp for terrorists269 and those who were misidentified by the

Security Forces were soon recruited to join terrorist organisations. In a letter to Lord

Gardiner, Sir Frank King argued that he fully understood why people found detention

distasteful since it departed from the normal course of British justice and he also

appreciated “that anyone taking a strictly academic view of the Emergency

Provisions Act could feel that detention is abhorrent to the British way of life. But

such a view ignores the realities of life in Northern Ireland.”270

Lord Gardiner was evidently against detention and wanted to eradicate it from

British policy but found it impossible to stop or to advice politicians on a time scale

to end detention, as it was simply needed and was proved effective. This mirrors

Professor Buchan and Professor Jones’ claim in their evidence that it was “notable

267

Ibid. 268

Ibid. 269

Gardiner, 147. 270

TNA, CJ 4/691, Gardiner Committee on Terrorism and Subversion: circulated

documents and evidence. October 11th

-28th

1974.

88

that critics of detention stop short of spelling out the actual steps by which it is to be

abolished.”271 Lord MacDermott’s reservation contrasts the Gardiner Committees’

view on ending detention straight away arguing it to be worth-while. He writes that

despite the obvious flaws of detention, it undoubtedly helps to protect the public

and keeps “hard-core terrorists out of circulation. If those terrorists were released

there was ample evidence to support the view that terrorism would be intensified

and intimidation increased.”272 In the short-term, detention proved effective in

reducing the levels of violence in Northern Ireland and aided the security forces in

securing terrorists out of circulation. Therefore, the Gardiner Committee felt

compelled to retain detention as “democracy has the right to defend itself.”273 As a

long-term solution to terrorism detention was not it, terrorists could not have been

detained indefinitely and possibly the worse issue of detention noted in the Gardiner

Report was that it created a myth of oppression, which soon become part of the

terrorist legend.274

Special Category Prisoners

“The tragedy of Northern Ireland is that crime has become confused with politically motivated acts.”275

271

TNA, CJ 4/688, Gardiner Committee on Terrorism and Subversion: documents 57-

68. Evidence from public departments and organisations, members of Committee,

other non-official bodies and members of the public. Sept 16th

- 22nd

1973. 272

Lord MacDermotts reservation. 273

TNA, CJ 4/1040, Gardiner Committee: Torture and the United Nationas (UN)

Evidence by NIO (Prison Division) on the NI Penal System speaking notes, July 21st

1973 – December 4th

1975. 274

Gardiner, 147. 275

Ibid., 19

89

One of the key conclusions of the Gardiner Report was to recommend the phasing

out of special category status. Essentially special category status related to any

convicted criminal condemned to more than nine months’ imprisonment who

claimed political motivation.276 The status of special category arose from a hunger

strike in 1972 led by Billy McKee, Officer Commanding (OC) of the Republican

prisoners in the Crumlin Road jail. The then Secretary of State, William Whitelaw,

conceded to political status for prisoners, in order to stop the hunger strike and due

to an outcry from the general public. Special category was an administrative not a

legal classification of prisoners277 and the status brought considerable privileges,

similar to those that Prisoners of War received, which ordinary prisoners were not

allowed. Special category prisoners were allowed to: wear their own clothes instead

of prison uniform; spend their own money in the canteen; receive food parcels from

the outside; they were not required to work like ordinary prisoners and they

received extra and more frequent family visits, with ordinary prisoners receiving one

visit a month and special category inmates allowed up to one a week.

Patrick A. Duffy, a solicitor of the Supreme Court of Judicature in Northern Ireland,

gave evidence to the Gardiner Committee regarding the number of ‘political’

prisoners detained, he stated, there had been over 1000 people interned or

detained and not one of these had been a member of any Unionist extremist

276

Ibid.,105 277

TNA, CJ 4/1040, Gardiner Committee: Torture and the United Nationas (UN)

Evidence by NIO (Prison Division) on the NI Penal System speaking notes, July 21st

1973 – December 4th

1975.

90

organisations,278 which fuelled a popular belief of discrimination among the minority

community. Gardiner in his own evidence to the committee stated that with a

prison population in Northern Ireland of around 2,800, special category prisoners

equalled around 1,150. Between 1975 and 1979, there were 609 Republican Special

category prisoners and 327 loyalists, totalling 936, showing the significant proportion

of inmates who claimed political status, both Republican and Loyalist. It is striking to

discover that the prison population in Northern Ireland of around 2,800 was

equivalent to the prison population in England and Wales totalling about 100,000,

when the actual prison figure was around 36,800.279 This illustrates the mammoth

escalation in prison figures and shows exactly how overstretched prisons and the

prison staffs were. The Committee was “appalled”280 at the prison accommodation

and special category prisoners, asserting the prison system was not fulfilling its role

in the maintenance of law order adequately. As a result of detention, the Maze

Prison was erected as an emergency build, accommodating prisoners in huts in large

compounds rather than in individual cells.

Several problems arose out of special category: chiefly, it completely undermined

the entire conception and rationale behind imprisonment. Prisoners are

incarcerated on account of them fundamentally committing a crime, prison is not

open to modification and negotiation, and it is essentially a punishment. Secondly,

278

TNA, CJ 4/678, Gardiner Committee on Terrorism and Subversion: papers and

other evidence submitted; transcripts of oral evidence. Individual cases of alleged

brutality; statements and case folders, Aug 17th

– October 3rd

1971. 279

TNA CJ 4/877, Gardiner Committee on Terrorism and Subversion: written

submissions to Committee and oral evidence, December 2nd

1974 – February 18th

1975. 280

Gardiner, 100.

91

political prisoners were segregated into their own ‘political’ groups in compounds

rather than cellular accommodation found in most prisons, and as a result these

terrorists spent their entire time in free association with fellow terrorists, as they

were not required to work, with the effect that “criminal sub-culture is likely to

flourish.”281 Gardiner stated the whole concept of special category was defective, as

prison officers were unable to control or monitor special category prisoners as they

were able to do so with ordinary criminals and this led to rehabilitation not

occurring.282 Prison officers were stretched with inadequate staffing for the scale of

prisoners involved and therefore with each terrorist organisation incarcerated within

their own compound this made regular observation unmanageable. Since special

category prisoners refused to work and could not be monitored on good behaviour

than ultimately they could not be recommended for parole, compelling them to

serve their whole sentence. Special category prisoners were being held rather than

imprisoned, as nothing about the system was that of a regular prison service.

Terrorists became undaunted at the prospect of imprisonment and “sentences

passed in the courts for murder and other serious crimes… lost much of their

deterrent effect.”283 Besides terrorists, petty criminals who committed ‘ordinary’

crimes could proliferate in an environment where there was a “convenient political

281

TNA, CJ 4/1040, Gardiner Committee: Torture and the United Nationas (UN)

Evidence by NIO (Prison Division) on the NI Penal System speaking notes, July 21st

1973 – December 4th

1975. 282

Gardiner Report, 103-104. 283

Ibid.,106

92

motive to provide a cloak of martyrdom, and where the police are stretched to the

limit.”284

One issue Gardiner raises within the report is that of the security of prisons in

Northern Ireland. It is stated that,

Strong security fences guard the outside perimeter, and watch-towers are

placed at numerous points. The Army guards the perimeter and entrances

and has a general responsibility for security.285

Not only were the army enacting policing roles on the streets of Northern Ireland in

addition to varying roles previously mentioned, they were also assigned to the role

of security prison guards, displaying the extensive functions the army performed.

On 16th October 1974, the Maze prison went up in flames by rioting prisoners, the

army guarding the exterior confines of the prison and extra battalions took most of

the night to regain control of the prison. This same night, the Gloucestershire

regiment were accused of arresting 177 Catholic boys but General Frank King

explained to the Gardiner committee that 177 boys were taken off the streets and

marched into a hall where they received a lecture by the Commanding Officer on

how to behave and then were free to go, 286the army did not want the boys on the

streets between the hours of 9 o’clock and 10 o’clock simply because of the trouble

they knew would erupt after news of the maze fire broke out. Furthermore, the

Army tried to deter young boys from entering a life of violence and essentially 284

TNA, CJ 4/688, Gardiner Committee on Terrorism and Subversion: documents 57-

68. Evidence from public departments and organisations, members of Committee,

other non-official bodies and members of the public. Sept 16th

- 22nd

1973. 285

Gardiner, 103. 286

TNA CJ 4/672, Gardiner Committee on Terrorism and Subversion: records of oral

evidence. September 5th

– November 1st 1974.

93

becoming terrorists, even conducting summer camps to expose the boys to another

way of life, with many never having experienced a holiday or life away from the

violence of Northern Ireland streets. The Army was interested in the rearing of

these young boys and King made an example of Martin McGuinness, he expressed:

Take for example, a man like Martin McGuiness, who before the troubles

started was an errand boy. How does one give him the sort of job that he will

learn by his ability? He has been a good brigade commander, but he is a man

who deserves something better of life. This is the big problem of violence.287

It is doubtful that in 1974, King foresaw Martin McGuinness becoming Deputy First

Minister of Northern Ireland, giving such an accurate conviction.

In a meeting with the Gardiner Committee, 24th October 1974, former Secretary of

State William Whitelaw “readily admitted that the conferring of special category

status on convicted prisoners in Northern Ireland had been a mistake.”288 Gardiner

completely loathed the entire concept of special category and as a result of his

report and views on the subject, the then Secretary of State Merlyn Rees, declared

anyone convicted of ‘terrorist’ or ‘scheduled’ offences after 1 March 1976 would be

tried as ordinary criminals and would not receive special category status,289 starting

the process of criminalisation. Lord Gardiner encapsulated his views as:

We can see no justification for granting privileges to a large number of

criminals convicted of very serious crimes, in many cases murder, merely 287

TNA, CJ 4/876, Evidence of Lt Gen Sir Frank King, General Officer

Commanding, Northern Ireland, 7 November 1974. 288

TNA, CJ 4/691, Gardiner Committee on Terrorism and Subversion: circulated

documents and evidence. October 11th

-28th

1974. 289

F. Stuart Ross, Smashing H-Block: The Rise and Fall of the Popular Campaign

against Criminalization 1976-1982 (Liverpool: Liverpool University Press, 2011), 15.

94

because they claim political motivation. It supports their own view, which

society must reject, that their political motivation in some way justifies their

crimes. Finally, it is unfair to ordinary criminals, often guilty of far less serious

crimes, which are subject to normal prison discipline.290

Rees recognised that there were great difficulties in transferring the present special

category prisoners to normal convicted prisoner’s status, even with parole as bait. In

addition, a hunger strike by political category prisoners in Northern Ireland was

more difficult to deal with than a hunger strike by prisoners in Great Britain because

of the possible repercussions on the general security situation in province.291 When

referring to human rights and civil liberties, there were no reservations that could be

held by ending special category, as the prisoners would have received the same

treatment as ordinary criminals. Margaret Thatcher encapsulated criminalisation as

simple as it can be described: “Crime is crime is crime, it is not political.”292 In

addition, Florence Houston in her evidence to the Gardiner Committee noted,

“murder is murder & bombs are bombs, & mutilation is heinous whatever the

reason.”293 A substantial amount of prisoners in special category committed serious

crimes and Lord Gardiner and the European Commission of Human Rights among

others made it clear that there was no basis in law or morality for such a status.294

290

Gardiner, 107. 291

TNA, CJ 4/691, Gardiner Committee on Terrorism and Subversion: circulated

documents and evidence, Notes on after-dinner discussion with Secretary of State, 18

September 1974. 292

‘What happened in the Hunger Strikes?’, accessed April, 2012,

http://news.bbc.co.uk/1/hi/northern_ireland/4941866.stm. 293

TNA, CJ 4/688, Gardiner Committee on Terrorism and Subversion: documents 57-

68. Evidence from public departments and organisations, members of Committee,

other non-official bodies and members of the public. Sept 16th

- 22nd

1973. 294

TNA DEFE 13/1423, Northern Ireland: HM Prison The Maze; dirty protest and

hunger strike by Republican prisoners, March 1st – December 31

st 1980.

95

Gardiner played a profound role in ending special category status, which led to the

renowned blanket protest and hunger strikes made infamous by Bobby Sands. Lord

Gardiner started a process of normalisation that would see normality return to the

British penal system and impede further in the PIRA’s campaign. In June 1981, the

IRA attached 3Ibs of explosives to Gardiner’s car; this assassination attempt shows

exactly what the IRA thought of Gardiner’s recommendations.

96

Conclusion

“To seek a solution to the NI problem

is to pursue a mirage in the desert:

a better ploy would be to irrigate the desert

until the landscape looks more appealing.”295

Lieutenant-General Sir Ian Freeland arrived in Northern Ireland in 1969 as General

Officer Commanding (GOC), with 2,500 soldiers in the province.296 By the end of the

conflict 250,000 soldiers qualified for the Northern Ireland clasp of the Army’s

General Service Medal.297 To understand British policies employed, we must first

appreciate the complex nature of the conflict in Northern Ireland, its emotional

intensity and the diversity of perceptions. Between 1969-1998, 40,273 people were

injured as a result of the conflict in Northern Ireland, and there were 3,700 deaths.

If these numbers were carried forward pro-rata to the remainder of the United

Kingdom with a population of c. 59.3 million, the amount dead and injured would be

around 2,027,800; more than British losses, civilian and military in the entire Second

World War.298 To further enhance the recognition of the multitude of violence in

Northern Ireland, between 1972-1975 alone, there were: 1,202 deaths of which 327

were members of the Security Forces, 20,591 shooting incidents and 5,447

295

Brice Dickson, “The Protection of Human Rights: Lessons from Northern Ireland”

(Lecture, London, April 6, 2000). 296

Michael Dewar, RGJ, The British Army in Northern Ireland (London: Guildford,

1985), 32. 297

Aaron Edwards, The Northern Ireland Troubles, Operation BANNER 1969-2007

(London: Osprey, 2011), 9. 298

Ken Wharton, A Long Long War, Voices from the British Army in Northern

Ireland 1969-1999 (London: Helion & Co, 2010).

97

bombings. This was on British soil. Moreover, only small parts of Northern Ireland

actually had violence, namely Belfast, Londonderry and the border, illustrating the

significant extent of violence in these areas. The magnitude of British COIN and its

problems in Northern Ireland signifies that this thesis can only touch upon certain

aspects; to delve deeper into British COIN further research would have to be

undertaken, maybe as a PhD thesis.

The British Army noted in their analysis of Operation BANNER, that the security

forces do not ‘win’ insurgency campaigns militarily; at best they can contain or

suppress the level of violence and achieve a successful end-state.299 The failure of

the British Government to create a political settlement in Northern Ireland, for much

of the Troubles, resulted in a fierce insurgency and the “political constraints on the

use of force limited the Army’s freedom for manoeuvre and straight-jacketed its

initiative.”300 At the start of the Troubles, the Army sought to discover their purpose

and place in Northern Ireland and British COIN developed into a method of trial and

error. From the Parker Report it is clear to see that the British COIN campaign in

Northern Ireland before 1972 was borrowed from its previous successful Colonial

COIN campaigns, policies such as internment and interrogation in depth, was hastily

enacted. Research has shown that the social impact of internment and deep

interrogation had detrimental effects; violence deepened and the conflict escalated,

with over 100 houses burnt after the 1st day of internment and the death toll rising

299

Ministry of Defence, Operation Banner: An Analysis of Military Operations in

Northern Ireland, Army Code 71842, (London: MoD, July 2006), Para. 809. 300

Aaron Edwards, “Misapplying Lessons Learned? Analysing the Utility of British

COIN Strategy in Northern Ireland, 1971-7,” Small Wars & Insurgencies 21, no. 2

(2010): 303-330

98

from 25 in the six months before internment, to 185 in the six months after

internment was introduced.301 British COIN policy displayed the incoherence

between the governments of Britain and Northern Ireland, and the security forces.

However, as this thesis has illustrated, policies enacted such as interrogation in

depth, were initially ill advised by the Army and enacted unbeknownst to the head of

the Army. The application of these policies in Northern Ireland was argued to be

morally inapplicable in a democracy such as Britain but as this thesis has attempted

to dispute, even the most liberal of minds can be hesitant when faced with the

‘ticking-time bomb’ scenario.

The Gardiner Report signified the shift from COIN to CT. “The end of the insurgency

merged into the phase characterised by the use of terrorist tactics; the PIRA

developed into what will probably be seen as one of the most effective terrorist

organisations in history.”302 Dermot Walsh argued like many others, that the rule of

law was sacrificed in Northern Ireland in order to achieve the result desired by the

political and security establishments.303 This thesis has argued that from the

Gardiner Report it is clear to see that British laws and regulations did not allow the

security forces to effectively contain terrorism; therefore, provisions made in the

1973 Act were necessitated. Every provision with the 1973 Act was legal; the

challenge faced by the Gardiner Committee was the question over whether or not

301

John Kelsay “Detainees in Northern Ireland, The University of Oxford Programme

on the Changing Character of War,” accessed May, 2012,

http://ccw.modhist.ox.ac.uk/events/reports/ht09_bennett.asp. 302

Ministry of Defence, Operation Banner: An Analysis of Military Operations in

Northern Ireland, Army Code 71842, (London: MoD, July 2006), Para. 106. 303

Brice Dickson, “The Protection of Human Rights: Lessons from Northern Ireland,”

(Lecture, London, April 6 , 2000).

99

they preserved civil liberties and human rights. Gardiner, an advocate of human

rights, endorsed the 1973 Act, unable to formulate immediate alternative measures

to deal with terrorism whilst maintaining individual human rights; justifying the

general research of this thesis. Gardiner accurately affirmed that the Army, with the

exception of individual soldiers, conducted themselves professionally and with

considerable constraint, considering the hostile environment they were in.304 In

actuality, it is commendable that the same few controversial incidences are referred

to; a beneficial sign displaying the Army in the three decades they were in Northern

Ireland did not accumulate more. Problematically for the Army, those they did

attain like ‘Bloody Sunday’ were colossal blunders, which are now immortalised in

Northern Ireland’s history.

In conclusion, even in a democracy such as Britain, human rights and civil liberties in

times of public emergency have to be sacrificed for the greater good. The majority

of soldiers, based on if they enter the Army at 18, serve 37 years; so whilst many

have served in the conflict in Northern Ireland, no-one can say they have fully

experienced all of it.305 The “security problem, which the security forces could not

solve was ‘the antagonism of two Communities with long memories and relatively

short tempers.’”306

304

Gardiner, 83. 305

Ministry of Defence, Operation Banner: An Analysis of Military Operations in

Northern Ireland, Army Code 71842, (London: MoD, July 2006), Para. Forward. 306

Christopher Andrew, Defence Of The Realm (London: Penguin,2010), 647.

100

101

Abbreviations

CCAD Central Citizens Defence Committee

CGS Chief of General Staff

CDU Campaign for Democracy in Ulster

CID Criminal investigation Department

CIIR Catholic Institute for International Relations

CO Commanding Officer

COIN Counter-Insurgency

DPP Director of Public Prosecutions

DUP Democratic Unionist Party

ECHR European Court of Human Rights

FRU Force Research Unit

GOC General Officer Commanding

ICO Interim Custody Order

IRA Irish Republican Army

MoD Ministry of Defence

MRA Minority Rights Association

MRF Military Reconnaissance Force

NIO Northern Ireland Office

NICRA Northern Ireland Civil Rights Association

OC Officer Commanding

OIRA Official Irish Republican Army

PIRA Provisional Irish Republican Army

102

RUC Royal Ulster Constabulary

SAS Special Air Service

SDLP Social Democratic and Labour Party

TNA The National Archives

UFF Ulster Freedom Fighters

103

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CJ Northern Ireland Office Records

DEFE Ministry of Defence

PREM Prime Minister’s Office

HMSO Her Majesty’s Stationary Office

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Conferences

Thornton, Rod, “The stickiness‛ of cultural norms: The role of Victorian values in

British Army tactics, techniques and procedures” presented at “‘Butcher and Bolt’ or

‘Hearts and Minds’? British Ways of Countering Colonial Revolt: A Historical

Perspective”, London, 15-16 September, 2011.

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at “‘Butcher and Bolt’ or ‘Hearts and Minds’? British Ways of Countering Colonial

Revolt: A Historical Perspective”, London, 15-16 September, 2011.

Bennett, Huw, “Recovering from disaster: British military policing in Northern Ireland

from Bloody Sunday to Police Primacy, 1972-76”, presented at “‘Butcher and Bolt’ or

‘Hearts and Minds’? British Ways of Countering Colonial Revolt: A Historical

Perspective”, London, 15-16 September, 2011.

Dixon, Paul, “Hearts and minds? British security strategy in Northern Ireland”,

presented at “‘Butcher and Bolt’ or ‘Hearts and Minds’? British Ways of Countering

Colonial Revolt: A Historical Perspective”, London, 15-16 September, 2011.

Mockaitis, Thomas, “The Minimum Force Debate: Imperial History Meets

Contempory Values”, presented at “‘Butcher and Bolt’ or ‘Hearts and Minds’? British

108

Ways of Countering Colonial Revolt: A Historical Perspective”, London, 15-16

September, 2011.