In 1972, a high level security meeting agreed that the British Army would be indemnified against prosecution for its actions in Ireland. This means, effectively, soldiers (and the RUC) could shoot and kill knowing they would not face prosecution. Many people, including professional historians would summarily dismiss that claim as being purely a conspiracy theory. At least one hundred and forty-nine of those killed by the British army between 1969 and 2001 are regarded as non-combatants while many others were killed that were combatants but often in disputed circumstances. That only four soldiers were ever jailed, none of whom ever served more than a token sentence, demonstrates that in practice indemnification against prosecution was put in place for the security forces. So the question shouldn’t be ‘Did the state indemnify soldiers from prosecution?’ but rather ‘HOW did the state indemnify soldiers from prosecution?’.
In 2012, Relatives for Justice publicised a memo showing that a decision had been taken to protect soldiers from prosecution. The 10 July 1972 memo came from a high level security meeting chaired by Secretary of State William Whitelaw. Decision J of the meeting was that “The Army should not be inhibited in its campaign by the threat of Court proceedings and should therefore be suitably indemnified.” I’d written about the decisions taken at this meeting before (see here). Briefly, all the decisions taken at that meeting can be shown to have been followed up and acted upon, including Decision (I) “Plans were to be produced urgently for the containment of areas harbouring bombers and gunmen“, which was the go ahead to prepare Operation Motorman which took place on 31st July 1972.
Two additional meetings either side of 10th July illustrate how this decision was not an aberration but instead was entirely consistent with wider policy. In June, the Director of Public Prosecutions had complained to the Attorney General that he was not being passed on all the case files by the joint RUC Special Branch/Military Police teams investigating criminal cases. Those teams actually reported to an RUC Divisional commander who, in turn, reported on each case to the DPP. According to Huw Bennett, in the same month, the DPP had indicated his general intention to refuse to prosecute security force members who killed or wounded civilians while on duty (see Bennett 2010). According to Bennett, this advice had already issued as memos from the Attorney General in early June. This was two weeks before the July 10th meeting.
On the 24th July, at a further meeting, indemnification was discussed. While the DPP had already indicated an unwillingness to prosecute and indemnification of soldiers had already been agreed the points made in the discussion are still astonishing (see below). Much of this is detailed and sourced by Huw Bennett in various papers, e.g. Bennett, H. (2010) ‘Detention and Interrogation in Northern Ireland, 1969–75’, in Sibylle Scheipers (ed.), Prisoners in War, Oxford; Bennett, H. (2010) ‘From Direct Rule to Motorman: Adjusting British Military Strategy for Northern Ireland in 1972‘, Studies in Conflict & Terrorism, 33: 6, 511 — 532; and Bennett, H. (2013) ‘Smoke Without Fire’? Allegations Against the British Army in Northern Ireland, 1972–5. 20th Century British History 24 (2): 275-304.
The British army’s Chief of the General Staff (CGS) was present along with the Secretary of State for Defence and the Attorney General at the July 24th meeting. The CGS thought to provide indemnity “…it was necessary either to find a way of doing what they had to do within the law, or to change the law“. He also stressed the army’s duty to protect its soldiers from prosecution. Those present at the meeting concluded soldiers could not formally be told they were immune from prosecution so a formal ‘Act of Indemnity’ was ruled out.
The cluster of meetings in June and July demonstrate that everyone, the government, civil service, military, prosecution service and Attorney General were all agreed on providing immunity for soldiers, and that it couldn’t be done publicly. This theme was sustained over a number of meetings (and can by shown to have been subsequently implemented in the almost complete absence of prosecutions of soldiers). Coincidentally, this is where the real paper trail seems to end and the implementation took a form that would not then be visible. All of this also happened against the backdrop of the debacles of the Compton Report and Widgery Tribunal in the preceding six months. It is not like the Attorney General, CGS or DPP were not all completely aware that soldiers had killed and were killing innocent civilians.
At heart, the indemnification took the form of a culture of behaviour that would ensure prosecutions did not happen. When investigations did actually take place, the prosecution rate (even then, generally for assault not firing weapons) was only a small fraction and the conviction rate even less so (some judges openly dismissed any evidence given against soldiers). As Bennett shows, evidence from Catholics was largely disregarded, even in favour of contradictory evidence from soldiers. Out of 502 cases investigated from March 1972 to September 1974, only 56 lead to charges and 17 to convictions pretty much all for minor offences. Complaints against the security forces were to be passed directly to the DPP from November 1972. There were 1078 assault cases looked at by the DPP between March 1972 and November 1974. The low level of investigations carried out is also illustrated by the fact that a higher number of official complaints against the army, 530, was made between December 1971 and February 1972 alone. At every stage of the process the complaints were filtered and the number reduced.
Even where the British Army actually admitted a liability and paid compensation, soldiers were not charged or prosecuted. In 24 cases involving fatalities between 1972 and 1975, the British Army admitted liability for negligence and paid compensation in 22 cases, only challenged two and lost one of those cases. Many of the settlements were out-of-court and were conditional on the army not being required to ‘legally’ admit to the liability. So no-one was ever prosecuted for those cases. The 24 cases were a fraction of the 203 fatalities the security forces were responsible for up to 1975. Indeed, in July 1974 when this culture was firmly established, GOC Lt. Gen. Frank King wrote to Lord Gardiner talking about how investigating complaints and prosecutions were having “… a serious effect on operational efficiency and morale.” Ironically, King was referring to the minimal level of complaints and prosecutions that was taking place.
It seems highly doubtful that some formal methodology was sketched out between June and July 1972 to help soldiers avoid prosecutions. In practical terms the failings of the joint RUC Special Branch and Royal Military Police investigations were already noted by the DPP and Attorney General in June 1972 but not corrected. Extraordinarily, the DPP had signalled an unwillingness to prosecute soldiers for killing or wounding civilians that June. The high level discussions in July affirmed a commitment to protect soldiers from prosecution across the spectrum of politics, civil service, legal system and military. What does seem to have been agreed was that the army’s demand couldn’t be met openly by changing the law. Instead, there must have been no pressure subjected to those in RUC Special Branch and the Royal Military Police who were supposed to investigate complaints. This had to involve at least the investigating teams, RUC divisional commanders, the DPP and Attorney General and anyone else in an oversight role. Never mind the fact that both RUC and army were investigating themselves, anyway.
What this all created was the necessary culture of non-investigation, disregard of witnesses and failure to observe due process and oversight. This meant soldiers could shoot with almost near impunity, knowing they faced no consequences. This indemnification of soldiers for their actions continued as long as the British army’s deployment.