A Model for the ‘War Against Terrorism’? Military Intervention in Northern Ireland and the 1970 Falls Curfew

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Published date	01 September 2003
Date	01 September 2003
DOI	http://doi.org/10.1111/1467-6478.00261
Author	Ita Connelly,Colm Campbell

JOURNAL OF LAW AND SOCIETY

VOLUME 30, NUMBER 3, SEPTEMBER 2003

ISSN: 0263-323X, pp. 341±75

A Model for the `War Against Terrorism'? Military

Intervention in Northern Ireland and the 1970 Falls Curfew

Colm Campbell* and Ita Connolly*

This paper questions the claim that British militarized security strategy

in Northern Ireland offers a model for the global `war against

terrorism' by exploring the critically important (though neglected)

`Falls Curfew' episode. Part one explores the relationship between

law, legitimacy, and the role of the military in democracies

experiencing violent conflict. Part two examines the operationalization

of the law on military intervention during the curfew, drawing on

archival material and employing empirical studies. Part three draws

overall conclusions, relating the contribution that the curfew made to

the escalation of the conflict to its operational aspects and legal

underpinnings. Failings are identified, and some general lessons

drawn out about the dangers of a `war' model in complex and violent

political disorders.

Official British discourse in the wake of the 9/11 atrocities presents

militarized security strategy in Northern Ireland as a model for prosecuting

the global `war against terrorism'.

The claim begs an obvious rejoinder: if

the Army's role in Northern Ireland provides an example to be followed,

341

ßBlackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and

350 Main Street, Malden, MA 02148, USA

* Transitional Justice Institute, University of Ulster, Jordanstown BT37

0QB, Northern Ireland

The awarding of a Senior Research Fellowship by the British Academy and of a Visting

Senior Research Fellowship by Jesus College, Oxford to the first named author greatly

facilitated the preparation of this paper. Thanks to Pat McKee, Computing Officer,

University of Ulster, and to Yvonne Murphy, Linen Hall Library, Belfast, for their

assistance, to Professor Brian Simpson of the University of Michigan, to Professors

Fionnuala NõÂ AolaÂin and Christine Bell of the University of Ulster, and to anonymous

reviewers for their helpful comments on drafts. Views expressed and responsibility for

any errors that may remain are the authors' own. The paper was first presented at a staff

seminar at the University of Leeds in November 2001.

1 See, for instance, `Britain to Brief US on Experience with IRA' Daily Telegraph,8

November 2001, and `Britain Shares its Lessons of Terrorism' Washington Times,14

February 2002.

why did the violence escalate so markedly after the initial (1969) military

deployment, and why did the conflict continue for a further quarter century?

Clearly, there are lessons to be learned from the Army's use of emergency

powers in Northern Ireland, but claims that it provides a successful model of

response to political violence and terrorism are highly contestable.

Simplistic comparisons between conflict situations are to be avoided, but

there are elements in the post-9/11 United States response, at home and

abroad, that bear uncomfortable similarities to early British techniques in

Northern Ireland. The correspondence is most striking in the American

employment of prolonged detention without trial of suspect foreigners, and

in the increased role for the military, evidenced by provision for trial by

military commission and in suggestions for loosening the restrictions on the

Army imposed by the 1878 Posse Comitatus Act.

Parallels from further

afield emerge from the invasions of Afghanistan and Iraq: the controversial

treatment of the Guantanamo Bay detainees, and the killing of civilians in

contested demonstrations and in checkpoint incidents in Iraq.

For states such as the United Kingdom and the United States of America,

with a commitment to democratic values and the `rule of law', reliance upon

military force presents formidable, multi-layered problems. This is true

overseas, as the debates on the legality of the use of force against Iraq

and

on the lawfulness of actions taken during the subsequent occupation

illustrate,

particularly where `democratization' is advanced as a ground for

intervention.

Where the military is employed not abroad but at home on

`internal security duties', the ideological element of the problem comes into

particularly sharp focus. The democratic state is a limited state, in which

conceptions of law, legitimacy, and the subordination of the military to a

342

2 See N. Katyal and L. Tribe, `Waging War, Deciding Guilt: Trying the Military

Tribunals' (2002) 111 Yale Law J. 1259; C. Evans, `Terrorism on Trial: The

President's Constitutional Authority to Order the Prosecution of Suspected Terrorists

by Military Commission' (2002 ) 51 Duke Law J. 1831; J. Fitzpatrick, `Jurisdiction of

Military Commissions and the Ambiguous War on Terrorism' (2002) 96 Am. J. of

International Law 345; H. Hongju Koh, `The Case Against Military Commissions'

(2002) 96 Am. J. of International Law 337; D.A. Mundis, `The Use of Military

Commissions to Prosecute Individuals Accused of Terrorist Acts' (2002) 96 Am. J. of

International Law 320.

3 `Iraqi Civilians Killed at Checkpoints' Guardian, 1 April 2003. `US Military Chiefs

Express Regret Over Civilian Deaths' New York Times, 2 April 2003.

4 `Lawyers Split Over Right to Use Force' Daily Telegraph, 11 March 2003. M.

Happold, `The Legal Case for War with Iraq' Guardian, 13 March 2003. `Attorney

General: War is Legal' Guardian, 17 March 2003.

5 `US ``wi ll adhere'' to Geneva Convention' Daily Telegraph, 2 A pril 2003.

`Occupation of Iraq Illegal, Blair told' The Guardian, 22 May 2003. `Blair Denies

Occupation is Illegal' Daily Telegraph, 23 May 2003.

6 `Blair promises ``brighter and better'' Iraq' Guardian, 19 March 2003. `The transition

from dictatorship to democracy will take time, but it is worth every effort . .. Then we

will leave, and we will leave behind a free Iraq.' Extract from a speech given by

George W. Bush aboard the USS Abraham Lincoln, 2 May 2003.

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framework of democratic governance are intimately linked. The employment

of the army to combat non-conventional challenges presented by political

violence, terrorism, and public order threats raises a number of thorny issues.

Who (if anyone) controls the military, particularly if a `war' model is

adopted? What limits should law prescribe, in terms both of control and of

substantive action? Given the ideological underpinnings of the democratic

state, what are the consequences for its legitimation mechanisms, of a

military departure from `democratic' standards? And what implications

might such departures have for the escalation or resolution of the conflict?

This paper interrogates claims for the export value of the Northern Ireland

model by an exploration of a critically important (though neglected) episode

that encapsulates many of the legal dilemmas of the militarization phase of

the conflict (1969-76). In July 1970, in a deteriorating public order situation,

the Army (using helicopter-borne loudspeakers), imposed a weekend-long

curfew, without statutory authority, on Belfast's Lower Falls district, barring

movement within and from the area. Immediately prior to and during the

`Falls Curfew', the Army killed four people, widely believed to be innocent

civilians, in the affected area, fired 1,500 live rounds and large numbers of

CS gas cartridges, conducted mass house searches, and made 337 arrests.

What made the event of particular legal significance was that this

resurrection of non-statutory military powers ran directly counter to the

generalized assumption that the development of democratic and con-

stitutional norms in the twentieth century had made such powers obsolete.

Commentators are generally agreed that the curfew, in practical terms, was

radically counter-productive. Along with the introduction of internment

without trial (1971) and the Bloody Sunday killings (1972), it played a major

role in reversing the previously good relations between the Army and

Northern Ireland nationalists. But whereas the two later events have attracted

intense legal analysis, the curfew has been under-researched.

This is

surprising, as the absence of a statutory basis for its imposition meant that its

claimed doctrinal foundation lay in the Diceyan view of the common law

which located military responses to riot and insurrection on the same sliding

343

7 For military-based accounts see D. Hamill, Pig in the Middle: The Army in Northern

Ireland 1969±1984 (1985) 36±9, and D. Barzilay, The British Army in Ulster Vol. 1

(1977) 11±16. For a swingeing critique of Army behaviour, see S. O

ÂFearghail,

Law(?) and Orders: The Belfast `Curfew' of 3-5 July 1970 (1970). On deaths during

the curfew, s ee Universit y of Ulster's a uthoritat ive CAIN webs ite

cain.ulst.ac.uk>, last visited 9 July 2003, and D. McKittrick, S. Kelters, B. Feeney,

and C. Thornton, Lost Lives (1999) 52±5.

8 See S. Greer, `Military Intervention in Civil Disturbances: The Legal Basis

Reconsidered' (1983) Public Law 573, and A.W.B. Simpson, Human Rights and

the End of Empire (2001) 58±90.

9 For non-legal accounts see n. 7 above. An incisive but limited account of the

importance of the curfew can be found in C. Palley, `The Evolution, Disintegration

and Possible Reconstruction of the Northern Ireland Constitution'(1972) 1 Anglo-

American Law Rev. 368, at 412±14.

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scale. In short, this was the closest any part of the state came to a form of

martial law since the Irish Troubles of the 1920s.

In contrast to Bloody Sunday and Internment, the Falls curfew led to no

litigation in the superior courts, to no official inquiries, and to no inter-state

European cases. Apart from one (unreported) magistrate's ruling that validated

its imposition in traditional common law terms,

the curfew left few legal

traces. It therefore remained largely invisible to doctrinal legal analyses

focusing on the rulings of inquiries or courts of record. Nor were alternative

legal sources accessible: primary material remained barred under the thirty-year

rule, and socio-legal studies of Northern Ireland emergency powers (pioneered

variously by Boyle, Hadden, Hillyard, and Walsh) began only later.

Only now

can the legal status of the curfew be properly examined, by reference to the

recently released archive material from Ministry of Defence (MOD) and

intelligence sources, from the records of curfew trials,

and from the delibera-

tions of the Cabinet of the devolved Northern Ireland (Stormont) government.

The most immediately compelling reason for re-examining the curfew lies

in the critique it offers of the easy assumptions which seem to underpin some

thinking in relation to the `war on terrorism'. But there are also related

reasons arising specifically from the Northern Ireland peace process.

Learning the lessons from a violent past, if only to avoid a recrudescence

of violence in the future, is increasingly recognized as a critically important

part of the transitional process.

This is particularly so in the face of the

344

10 `Gen. Freeland's Curfew Order Was Right, Rules City Magistrate' Belfast Telegraph,

8 September 1970.

11 See K. Boyle, T. Hadden, and P. Hillyard, Law and State: The Case of Northern

Ireland (1975); K. Boyle, T. Hadden, and P. Hillyard, Ten Years on in Northern

Ireland: The Legal Control of Political Violence (1980); and D. Walsh, The Use and

Abuse of Emergency Legislation in Northern Ireland (1983). On the Diplock courts

see, also, G. Hogan and C. Walker, Political Violence and the Law in Ireland (1989)

101±37 and Lord Diplock, `Report of the Commission to Consider Legal Procedures

to Deal with Terrorist Activities in Northern Ireland' (1972; Cmnd. 5185) (the

Diplock report).

12 The files are located at the Public Record Office Northern Ireland (PRONI), file refs:

BELF/1/1/2 /231/1, BELF /1/1/2/231/ 16, BELF/1/1 /2/231/17, BE LF/1/1/2/ 232/1,

BELF/1/1/2/232/ 18,BELF/1/1/2/2 32/31, BELF/1/1/ 2/233/12, BELF/1/ 1/2/233/13,

BELF/1/1/2/233/24, BELF/1/1/2/233/28, BELF/1/1/2/233/29, BELF/1/1/2/233/31,

BELF/1/1/2/233/32, BELF/1/1/2/233/33, BELF/1/1/2/233/34, BELF/1/1/2/233/35,

BELF/1/1/2/233/36, BELF/1/1/2/233/37, and BELF/1/1/2/233/39.

13 A devolved government under the Government of Ireland Act 1920 ruled Northern

Ireland from 1921 to 1972. It is often referred to as the `Stormont Government'

because of the geographical location of the devolved Northern Ireland institutions.

See P. Buckland, The Factory of Grievances: Devolved Government in Northern

Ireland (1979).

14 See, generally, R. Teitel, Transitional Justice (2000). On the specifics of the Northern

Ireland situation, see C. Bell, Peace Agreements and Human Rights (2000) and C.

Campbell, F. NõÂ AolaÂin, and C. Harvey, `The Frontiers of Legal Analysis: Reframing

the Transition in Northern Ireland' (2003) 66 Modern Law Rev. 317.

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kind of strategies of official denial that were evident in relation to the

curfew, where Parliament was informed that there was `no formal curfew'.

Thus, learning the appropriate lessons from the period represented by the

curfew is critically important both locally and globally.

Part one sets the scene for an evaluation of the curfew experience by an

exploration of the relationship between law, legitimacy, and the role of the

military in democracies experiencing violent conflict. This is followed by an

examinati on of non-sta tutory the ories of mili tary inter vention, wi th

particular reference to MOD analyses of the eruption of the Troubles. The

discussion explores civil and military perceptions of the law governing

military deployment, and poses questions about the acceptability of the

actions taken within a framework of democratic governance.

Part two examines the operationalization of the law on military inter-

vention during the curfew, drawing on archival material and employing

empirical studies developed from the socio-legal studies mentioned above

(see Addendum). By surveying the trials on indictment arising from the

curfew, a picture is given of the operation of emergency powers in 1970,

from the curfew's inception through to follow-up criminal legal proceedings.

For comparative purposes, a contemporaneous set of non-curfew Troubles-

related cases is included where appropriate. The discussion explores police

and army interaction in the exercise of emergency powers; it critically

examines the attempt to achieve a tie-in between the army operations and the

ordinary court system; and it investigates the legal and the administrative

dimensions of the problematic civil-military relationship highlighted by the

curfew.

Part three draws overall conclusions, relating the contribution that the

curfew made to the escalation of the conflict to its operational aspects and

legal underpinnings. Failings are identified, and some general lessons drawn

out about the dangers of a `war' model in complex and violent political

disorders.

PART I. EMERGENCY, DEMOCRACY, AND THE MILITARY

In the liberal-democratic state, military intervention in civil affairs is the

exception. Conceptually therefore, debate is located firmly on the terrain of

`emergency powers', with political science and related legal analyses

typically focusing on normative (`ought') questions, and sociological and

socio-legal analyses attempting to describe what actually happens to law and

legal legitimacy during emergenices (`is' questions).

The `ought' questions generated by the juxtaposition of democracy and

emergency have related to the tension between the preservation of the

345

15 The denial is examined further below.

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(democratic) state, and the protection of individual human rights.

Some have

focused on the need to uphold constitutional provisions during emergency.

Others have sought to prioritize the upholding of the democratic principles

underpinning the constitution rather than the strict letter of the constitution

itself.

All these discourses, however, locate the ultimate justification for

emergency powers in the need to preserve democracy. The questions of the

end-goal and the means by which that goal is to be achieved are related. While

not all democratic theorists insist that responses to emergency be in strict

accordance with pre-existing constitutional and legal norms, there is general

agreement on the need to ensure that any actions taken are within a framework

of governance in which administrative norms ensure ultimate accountability to

a democratically-elected government.

Thus while there is a lack of agreement

as to what role legal norms should actively play,

there has been no support

for a view that law should create a locus of power during the emergency which

serves as a non-democratic substitute for elected government.

In an emergency, the institutions of the state in relation to which the need

for democratic control is likely to be most pressing are its security forces.

The determination of the modes of behaviour which these forces are

permitted to adopt in times of crisis will inevitably involve an extrapolation

from those deeply ingrained modes applicable in ordinary times. In the case

of the police, this can be a relatively straightforward extrapolation from the

ordinary division of labour within the criminal justice system (though this

may mask more profound changes). The Army is significantly more

problematic, since employment of the military to deal with civil disorder is

not a seamless extension of its ordinary role, but a radical departure.

Structures of accountability and control even proximately appropriate to the

new situation cannot be assumed to exist.

346

16 See J. Fitzpatrick, The International System for Protecting Rights During States of

Emergency (1994) and J. OraaÂ, Human Rights in States of Emergency in International

Law (1992).

17 For an argument along these lines, see J.E. Finn, Constitutions in Crisis: Political

Violence and the Rule of Law (1991).

18 Schlesinger, while acknowledging that emergency government was an `extra-ordinary

resort to raw political power, necessary but not lawful', nevertheless envisaged this

action as one taken by the democratically elected president, not an autogenous

military one. See A.M. Schlesinger, The Imperial Presidency (1974) 16.

19 See O. Gross, `Chaos and Rules: Should All Responses to Violent Crises Be

Constitutional?' (2003) 112 Yale Law J. 1011. The consequences of a retreat from

legality during emergency are explored further below.

20 This is a separate issue from the legitimate delegation of powers by the democratic

government during the emergency. Even the `dictator' model of emerge ncy

government from the Roman republic as analysed by Carl Friedrich envisaged that

the appointment of the (temporary) dictator take place `according to precise

constitutional forms'. See C.J. Friedrich, Constitutional Government and Democracy

(1950) 574, quoted in Finn, op. cit., n. 17, p. 16.

21 See A. Babington, Miltary Intervention in Britain: From the Gordon Riots to the

Gibraltar Incident (1990) 242, and Greer, op. cit., n. 8.

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By virtue of its primary function, military thinking tends to operate

according to a `war' model, with a rhetoric of `battles', `enemies', and

`control of territory'. Such a mind-set poses immediate legal challenges

when applied to civil disorder, political violence, and terrorism. What legal

encapsulation is appropriate: martial law, civil law, or perhaps some kind of

hybrid constructed around a recasting of the civil law according to military

requirements?

How are the police and Army to interact in the exercise of

the legal powers available to them? How are the Army's actions to relate to

the operation of the criminal justice system? And are the legal imperatives

driving th e Army's act ions comp atible wit h ultimate c ontrol by a

democratically elected government?

In a democracy, the issues thereby raised may themselves be central to the

conflict. For its supporters, the legitimacy of the state's action is, in a

normative (political) sense, axiomatic.

But in a socio-legal sense (the `is'

question), popular legitimacy in situations of political upheaval is not given

or fixed; rather, it is fluid and contested ± there is a `struggle for

legitimacy'

in which law typically plays an important role. For the state,

the appeal of legal form is the obvious one encapsulated in the phrase `what

is lawful is legitimate'. In practice, legality may not always be a guarantee of

perceived legitimacy, but an absence of legality will almost certainly be

appealed to as proof of the illegitimacy of a particular course of action.

The legitimacy attaching to legality is likely to be highest where the state

is seen to adhere closely to concepts of the rule of law, or in Weberian terms,

to `formal rationality'.

Yet, within the state apparatus, the pressures of the

conflict inevitably produce demands for the loosening of the restrictions

imposed by adherence to the rule of law, leading to potentially abrasive

security strategies. Amongst those upon whom these strategies impact,

perceptions of the legitimacy of the state's actions are likely to be affected

by gaps between the rhetoric of the liberal-democratic state and the actions

of its agencies (typically the army and the police). It can be significantly de-

legitimating for a democratic state faced with political violence and

terrorism to depart markedly from rule-of-law standards, since its self-

347

22 For military-based explorations of some of these issues see F. Kitson, Low Intensity

Operations: Subversion, Insurgency, Peace-Keeping (1971); R. Clutterbuck, Protest

and the Urban Guerrilla (1973); R. Evelegh, Peacekeeping in a Democratic Society,

the Lessons of Northern Ireland (1978); and M. Addison, Violent Politics: Strategies

of Internal Conflict (2002) 244.

23 For a discussion of this point in a Northern Ireland context, see K. McEvoy and B.

Gormally, ` ``Seeing'' is Believing: Positivist Terrorology, Peacemaking Criminology

and the Northern Ireland Peace Process' (1997) 8 Critical Crim. 9.

24 Boyle et al., op. cit. (1980), n. 11, p. 93. See, also, K. McEvoy, Paramilitary

Imprisonment in Northern Ireland: Resistance Management and Release (2001) 137.

25 For a discussion of Weber's view of formal rationality in the context of legal

responses to United States race riots, see I. Balbus, The Dialectic of Legal

Repression: Black Rebels Before the American Courts (1977) 3.

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definition may depend to a large extent on the contra-distinction between the

democratic, law-upholding `us,' and the undemocratic, violent `other/

terrorist'. Describing the United States response to race riots in the 1960s,

Balbus describes a similar dynamic:

the immediate pressures to end the violence unavoidably dictate the serious

abrogations of the principle of formal rationality and hence precisely the risk

of delegitimation and maximization of revolutionary potential.

In violent political conflict, therefore, law occupies a somewhat ambivalent

position. The legitimating aspect of its formal rationality is clear, but for

groups affected by repressive strategies, the legal failings of the state provide

an obvious point of attack. For such groups, trials may offer a route to expose

these failings. Thus law can display an important `resistant' potential, even (or

perhaps especially) in situations of sig nificant legal repression.

In a

democracy, law is not `outside' the conflict; rather, it provides one site on

which the conflict can be conducted, and is thus partly constitutive of it.

1. United Kingdom legal frameworks

In the United Kingdom, the legal framework governing military intervention

lies, for the most part, in non-statutory sources, established well in advance

of contemporary theories of democratic accountability. Thus Evelegh, a

former Battalion commander in Belfast, found it:

startling to reflect that, in strict constitutional theory, a corporal, with ten

privates in a lorry, who happened to drive through Grosvenor Square in

London when a crowd of demonstrators had burst through a police cordon and

was attacking an embassy, would have not merely a right to intervene and

suppress the disorder with lethal weapons if necessary, but an absolute duty to

do so, in spite of anyone from the Prime Minister to the senior policeman on

the spot telling him not to.

This formulation, (though contestable), highlights critical problems left by

the unfinished business of the seventeenth-century constitutional settlement:

348

26 id., p. 3. For an exploration of Balbus's theories in a Northern Ireland context, see P.

Hillyard and K. Boyle, `The Diplock Court Strategy: Some Reflections on Law and

the Politics of Law' in Power, Conflict and Inequality, eds. M. Kelly, L. O'Dowd, J.

Wickham (1982).

27 For a discussion of the resistant quality of law in the Northern Ireland context, see K.

McEvoy, `Law, Struggle, and Political Transformation in Northern Ireland' (2000) 27

J. of Law and Society 542. More generally, see R. Abel, Politics by Other Means:

Law in the Struggle Against Apartheid 1980±1994 (1995); D. Dyzenhaus, Hard Cases

in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy

(1991); and O. Kirchheimer, Political Justice (1961).

28 For a fuller discussion of the points raised under this heading, see Greer, op. cit., n. 8;

Simpson, op. cit., n. 8, pp. 58±64, and C. Campbell, Emergency Law in Ireland, 1918-

1925 (1994) 123±48.

29 Evelegh, op. cit. n. 22, p. 8.

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to what extent did developing democratic norms of parliamentary supremacy

and constitutional government place limits on non-statutory powers in the

sphere of public order? Or more prosaically: did the elected government

always control the Army?

That settlement is generally taken to have rendered obsolete a prerogative to

enforce martial law within the state, at least in time of peace. Consonant with

this view, the twentieth century saw the triumph of statutory over prerogative

powers in other areas of emergency provision.

But as prerogative powers

went into decline, a parallel `common law' doctrine arose in response to unrest

in the wake of the industrial revolution. This doctrine seemed less a code for

military behaviour than a legal rationalization of the use of force which fell

outside the positive aspects of the seventeenth-century settlement. The doctrine

found its most eloquent champion in A.V. Dicey for whom the law in relation

to riot and insurrection was merely an expression of the common law right `to

repel force by force', a right which was also a `legal duty' resting on `every

subject whether a civilian or a soldier'.

For Dicey, one formulation governed

everything from the initial deployment of the military (the first part of the

doctrine), to the action taken (the second part), whether that be the suppression

of riots or the imposition of martial law (one could shade into the other). Thus

Dicey's formulation recreated many of the problems that the seventeenth

century was taken to have solved: the Army now appeared to have a mandate

for extensive action in situations of emerge ncy, without the need for

parliamentary approval, and with questionable regard to the wishes of the

elected government.

Attempts to draw upon this muddied doctrinal pool proved disastrous in

Amritsar (1919) a nd in Ireland (19 20±21), and there after the legal

framework of overseas counter-insurgency operations became an exclusively

statutory one . This switch, a nd the increas ing reach of demo cratic

constitutional norms prompted some to proclaim Dicey's demise, but he

nevertheless retained a powerful hold on military doctrine. The 1969 Manual

of Military Law (the Army's legal bible), for instance, insisted that in the

case of a conflict between the civil and military authorities as to the

appropriate response to a public order crisis:

Even though the civil authority should given direction to the contrary the

commander of the troops, if it is really necessary, is bound to take such action

as the circumstances demand.

349

30 AG v. De Keyser's Royal Hotel Ltd. [1920] A.C. 508, followed in Ireland in Egan v.

Macready [1921] 1 I.R. 265.

31 A.V. Dicey, Lectures Introductory to the Study of the Law of the Constitution (1885)

295±6.

32 Manual of Military Law (1969) 502.

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2. Northern Ireland intervention

In 1966, in response to the heightening tension in Northern Ireland, the

Northern Ireland and Westminster governments agreed that the deployment

of troops would, if at all practicable, be subject to prior inter-governmental

consultation.

In 1968, the more pressing possibility of the Army's being

deployed prompted a fresh examination of the legal basis for intervention.

The core problem as viewed by the Secretary of State for Defence lay in a

clash between legal and administrative norms; specifically, there was a

mismatc h between th e MOD's (a nd the Secre tary's) a dminist rative

jurisdiction over the Army (the channel for democratic accountability and

control), and the legal doctrine giving the military an independent power to

intervene in situations of civil disturbance. The issue therefore concretized

the problem adverted to earlier: that of a legal doctrine creating a locus of

power which could substitute for that of the democratic government.

The Army's solution had been to signal the GOC Northern Ireland (NI),

reminding him of the `great political sensitivity' of the question, and

stressing `the importance of referring to the MOD(A) if humanly possible

before, repeat before, acceding to any request for the use of troops in aid of

the civil power'.

The Secretary of State remained concerned. As the

Attorney-General, whom he consulted, put it:

you see a dilemma in that the troops in Northern Ireland are responsible to you

and through you to Parliament here, but that in this respect you are helpless to

control them because they are under an independent duty to assist in the

maintenance of law and order.

The responses to the problem posed by the Secretary of State by both

the Army and the Attorney General located the discussion firmly within

the common law as analysed in the Manual of Military Law. Both focused

mainly on the question of the initial stages of deployment, with only

limited comment on subsequent action. On the question of `safeguards',

the view of the Chief of the General Staff was that the issue was

adequately addressed in the requirement that that the GOC refer to the

MOD if `humanly possible'.

The Attorney-General showed a greater incisiveness on the issue of

independence, asserting that:

350

33 Violence and Civil Disturbances in Northern Ireland in 1969, Report of a Tribunal of

Inquiry (1972; Cmnd. 566; chair, Mr Justice Scarman) para. 20.1 (the Scarman

report).

34 MOD Signal Message Form, MOD(Army) [from CGS] to NORIRELAND [to GOC],

6 December 1968, DEFE 24/882 PRONI.

35 Attorney-General to Secretary of State for Defence, 13 December 1968, DEFE 24/

882, PRO Kew.

36 `Military Aid to the Civil Power in Northern Ireland', Chief of the Defence Staff to

Secretary of State, 9 December 1968, DEFE 24/882 PRO Kew.

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the military are bound to assist the civil authorities in the enforcement of law

and order . . . certainly whenever they are called upon to do so and in

circumstances of real and urgent necessity even though they are not called

upon to do so.

But like the Chief of the General Staff, he found the arrangements for

military intervention acceptable. Each suggested variously that the law made

it `wrong'

or `open to question'

for instructions to be given absolutely

forbidding commanders to take action except on authority from the MOD.

And both repeated the common law formulation that the test to be applied in

judging the force used by the military was that it be `reasonable' in the

circumstances, with the Chief of the General Staff alone drawing attention to

the Army Department's `general instructions on Internal Security in the

United Kingdom'

(the detailed contents of which were not disclosed).

When the question was again addressed intergovernmentally in 1969, the

Northern Ireland government's view was that:

it was made clear that the GOC sho uld only consider this questi on

[intervention] after consultation with London and again it was understood

that there would be consultation at government level.

In practice, this is what happened when the troops were deployed in August

1969.

At this point the doctrinal issue seems to have been allowed to rest. The

focus had been almost exclusively on initial deployment (the first part of the

common law doctrine), leaving the second part (action to be taken),

pointedly neglected. The position, therefore, in the lead-in to the curfew was

that the Secretary of State should have been aware of the common law view

that an open-ended legal mandate for independent action remained available

to the Army. But whereas identification of the problem in relation to initial

military deployment had led to compensatory administrative safeguards

being imposed, no corresponding post-deployment checks existed.

The problem was complicated by the radical and highly confused

fragmentation of political and legal authority brought by the maintenance of

the Stormont government after the troops' arrival. At the start of the conflict

it was the Home Office rather than the MOD that had the greater role in

Northern Ireland policy, though it was to the MOD that the military was

admini strati vely re sponsi ble. The A rmy vie wed itse lf as hav ing a

simultaneous responsibility under the common law; and for as long as the

devolved government at Stormont remained in existence, the Army was

351

37 `Military Aid to the Civil Authority in Northern Ireland', Attorney-General to

Secretary of State for Defence, 13 December 1968, DEFE 24/882 PRO Kew.

38 id.

39 DEFE 24/882 PRO Kew, op. cit., n. 36.

40 id.

41 Scarman, op. cit., n. 33, para. 20.1.

42 See Greer, op. cit., n. 8, pp. 587±8, and Scarman, id., paras. 24.1±24.3.

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required to interact constructively with it. Although Stormont had no direct

control over the military, it was its emergency legislation in the shape of the

Civil Authorities (Special Powers) Acts (Northern Ireland) 1922±1943 and

regulations (`the Special Powers regulations') that provided the bulk of the

Army's statutory powers. The Royal Ulster Constabulary (RUC) remained

under the Stormont framework, though operationally it was increasingly

subordinated to the military. In an attempt at institutional integration, the

GOC(NI), was given `overall responsibility for security operations'

(under

the title of `Director of Operations'), and a Joint Security Committee was

established, consisting of the GOC(NI), the RUC, and representatives of the

two governments. Unsurprisingly, though, problems remained; the rational-

ization which these changes entailed was organizational only, leaving

common law imperatives unaddressed, either legally or administratively.

PART II. OPERATIONALIZING THE CURFEW

The weekend preceding the curfew had been unusually violent. In response, the

Joint Security Committee warned of tough action. Its private deliberations

reveal the breadth of options reviewed: the view of the GOC(NI) was that that

`Martial Law was not for consideration at this stage',

and while restrictions

on movement were discussed, there was agreement that `it would be impossible

to impose an absolute curfew'.

The Stormont government considered the

question of imposing a statutory curfew (as permitted by Special Powers

regulation 19), but the Cabinet conclusions record that `imposition of a limited

curfew would not be possible under existing powers'.

This formulation

apparently reflected the view that a full-blown curfew was too extreme a step,

and a lesser restriction legally impermissible. Nevertheless, without relying

upon the Special Powers regulation, on Friday 3 July, as street disturbances

following a house search in the Lower Falls escalated, the Army imposed a

complete curfew on the area.

The use of the word `curfew' is important. In Parliament a few days later,

it was claimed on behalf of the MOD that:

No formal curfew was imposed . .. Restrictions on movement were imposed in

the interests of the safety of the population as a whole and to restrict the

operations of armed criminals.

352

43 See `Northern Ireland, Text of a CommuniqueÂ and Declaration issued after a meeting

Held at 10 Downing Street on 19 August 1969' (1969; Cmnd 4154).

44 Conclusions of a Meeting of the Joint Security Committee, 28 June 1970, DEFE 13/

730 PRO Kew.

45 id.

46 Cabinet Conclusions 28 June 1970, CAB4/1530 PRONI.

47 803 H.C. Debs., col. 329 (6 July 1970).

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But the Army's situation report for the day (`SITREP') records that `at 2200

hrs curfew orders were issued for the Falls Area, this curfew to remain until

further orders'.

The SITREP for the following day likewise records that

`the curfew has continued'.

The location is also of importance: the Lower

Falls was dominated by the quiescent `Official IRA' (as distinct from the

more militant `Provisional IRA'), and this in itself suggests a significant

intelligence failure, or more likely a miscalculation.

While the formal

justification for the curfew lay in the rioting which grew out of the house

search, there are indications that the military was preparing for an encounter

with the IRA.

The curfew was an innovation in terms of the tactics then in use by the

Army in Northern Ireland, though it was not without precedent. Curfews had

been imposed under Special Powers regulations until the 1950s,

and statutory

curfews had been employed in Cyprus (1950s)

and in Aden (1960s).

What

was unique about the Falls curfew was the absence of a statutory basis, raising

the question of who authorized it. The SITREP's reference to `curfew orders'

strongly suggests that the decision was not made by local troops, and points

towards the Director of Operations/GOC(NI).

At a meeting of the Joint Security Committee held the morning after the

imposition of the curfew, the GOC(NI) made no mention of having obtained

permission f rom, nor of eve n having cons ulted eithe r Stormont or

Westminster in relation to actions taken during `last night's ``battle''.'

As regards legal aspects, the committee's conclusions record that:

the advisability of legalising the `curfew' . . . by an Order under the Special

Powers Act . . . were considered. Decision deferred for consideration by legal

experts . . .

In a message to the MOD on 6 July, the GOC(NI) did not claim that the

troops had acted without his authorization, nor that he had received

permission from the MOD, the Home Secretary or Stormont. Instead, his

main concern was to defend the troops against allegations of brutality and

theft (of which there were many). The language employed again displayed a

353

48 DEFE 25/273 PRO Kew.

49 id.

See Hamill, op. cit., n. 7, p. 38. An account by the GOC showing awareness shortly after

that the area was Official IRA-dominated can be found at DEFE 25/273 PRO Kew. On

the IRA generally, see R. English, Armed Struggle: A History of the IRA (2003).

51 See Hamill, id., p. 37.

52 L.K. Donohue, Counter-terrorist Law and Emergency Powers in the United Kingdom,

1922-2000 (2001) 63.

53 Simpson, op. cit., n. 8, p. 898.

54 See P. Taylor, Brits: the War Against the IRA (2001) 30-2, 50.

55 Authors' emphasis.

56 Conclusions of a Meeting of the Joint Security Committee, 4 July 1970, DEFE 13/730

PRO Kew.

57 id.

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soldier's determination to locate events using classic military reference

points: `This was not an elaborately pre-planned cordon/curfew/search

exercise. It was a battle.'

At the first Stormont Cabinet meeting following the curfew, the account

given by the Minister for Home Affairs, while celebratory, hinted at the

question mark over the legality of the action, and made no claim of prior

consultation:

to have announced a formal curfew would have required the making of an

Order which would have applied only from late on the Saturday (4 July), thus

highlighting the situation and possibly giving rise to the questions of the

validity of the measures already taken. It had therefore been decided to act

under the Special Powers legislation and the common law.

The reference to the possible `making of an Order' can be taken as a

reference to regulation 19. On the critical issue of decision-making, the

Minister noticeably employed the passive tense, thereby obfuscating the

question of responsibility. But the suggestion that action by his Ministry

could only have been taken retrospectively, clearly implies that measures

were taken without his involvement.

The matter was apparently deemed insufficiently serious to make it onto

the agenda of Westminster cabinet discussions,

but such operations were

discussed at a meeting of the Committee on Northern Ireland on 13 July.

Acting upon the committee's decision, the MOD's response was to insist on

prior approval for future major operations, implying that approval had not

been sought (or granted) in the past.

The best view therefore, was that the

decision to impose the curfew as an act of will of the GOC.

1. Programmatic aspects: searches and arrests

As regards the actual conduct of military operations, apart from the fire-

fights, the curfew seems to have involved four main elements. There was a

prohibition on entry into and exit from the curfew area, the boundaries of

which were initially unclear;

within the area, people were required to clear

354

58 DEFE 25/273 Kew.

59 Cabinet conclusions 7 July 1970, CAB4/1532 PRONI.

60 Cabinet conclusions 29 June 1970, CAB 128/47, PRO Kew, and cabinet conclusions

7 July 1970, CAB 128/47, PRO Kew.

61 The Ministerial Committee on Northern Ireland was established by Ted Heath on

taking office in 1970. See P. Hennessy, The Prime Minister ± The Office and Its

Holders Since 1945 (2001) 347.

MOD Signal Message Form, from MOD UK Army to HQ Norireland 14 July 1970,

DEFE 25/273, Johnston to PS/Minister for Defence 15 July 1970, DEFE 25/273, and

MOD Signal Message Form, from MOD (Army) To Noireland 15 July 1970, PRO Kew.

63 This view is supported in Hamill, op. cit., n. 7, p. 37, and Barzilay, op. cit., n. 7, p. 14.

64 Thus the journalist Tony Geraghty escaped conviction because he could show he was

arrested outside the strict curfew area. See `Newsman in Curfew Case Cleared' Irish

News, 28 July 1970.

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the streets (this ended the rioting within a few hours) and there was a

complete prohibition on movement; mass house searches were initiated; and

there were widespread arrests. The restrictions were temporarily lifted to

permit shopping for food for two hours on Saturday afternoon (movement

was permitted only within the curfew area), and again on Sunday morning to

allow church attendance. The curfew collapsed (embarrassingly for the

Army) on Sunday afternoon when women from outside the curfew area

marched into the restricted zone carrying bread and milk.

The house searches had begun with the imposition of the curfew and

continued throughout the night, with considerable amounts of arms found as

gun battles raged. MOD papers disclose that whereas `certificates of search'

were produced for later searches, `none had been issued while the initial

battle was taking place'.

This is significant in that it suggests that if any

legal basis could be found for these early searches, it would have to be in the

common law.

With the searches came extensive arrests, all carried out by the Army (see

Table 1). Some related to arms finds, while others were for simple breaches

of the curfew. This sole reliance upon the Army contrasts sharply with the

position in non-curfew cases from 1970 where, as the data from the court

survey reveals, 40 per cent of arrests were carried out by RUC officers acting

alone. Further analysis of arrest patterns in non-curfew cases discloses

important differences between the treatment of loyalist and republicans.

Most republicans were arrested eithe r in Army or joint Army-RUC

operations, while as many loyalists were arrested by the RUC as by the

Army. This suggests that the RUC was able to act independently only in

loyalist districts. While the small numbers involved in the non-curfew cases

means that extreme caution in analysis is required, the pattern nevertheless

prefigures the differential impact of security force activity in the mid-1970s

reported by Boyle et al. What appears to emerge is an early example of an

institutional bifurcation whereby nationalist areas became subject to military

control mechanisms (the `military-security approach'),

whereas in loyalist

areas, police-led approaches dominated.

Reflecting the frenzied nature of activity in the curfew's first ten hours, 59

per cent of arrests took place from 4±8 a.m. (see Table 2). In terms of

location, the largest category of arrests came under the `other scene of crime'

heading (63 per cent). These generally involved individuals arrested at other

peoples' homes at which a weapon was found during what seemed to be

blanket street searches. As will be seen below, this modus operandi was

directly linked to the flaws that later emerged in prosecution strategy.

355

65 On the ending of the curfew see Taylor, op. cit., n. 54, p. 50, and S. Pickering,

Women, Policing and Resistance in Norther Ireland (2002) 74.

66 `Northern Ireland Meeting Between Home Secretary and Defence Secretary, July

1970, DEFE 25/273, PRO Kew.

67 Boyle, op. cit. (1975), n. 11, p. 43.

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356

Table 1: Who Made the Arrests?

Curfew Cases Arrestor

RUC alone Joint Army alone Other Not known Total

Army/RUC

Background of

Defendant Count Row Count Row Count Row Count Row Count Row Count Col

% % % % % %

(All Republican) 0 0 41 0 0 41 100%

Total 0 0% 0 0% 41 100% 0 0% 0 0% 41 100%

Non-Curfew Cases Arrestor

RUC alone Joint Army alone Other Not known Total

Army/RUC

Background of

Defendant Count Row Count Row Count Row Count Row Count Row Count Col

% % % % % %

Loyalist 5 0 5 0 1 11 73%

Republican 1 1 2 0 0 4 27%

Total 6 40% 1 7% 7 47% 0 0% 1 7% 15 100%

The data has been presented to as to make it accessible as possible. For comparative purposes `Curfew Cases' and `Non-Curfew Cases' have been

grouped separately within tables. In all instances a line has been used to separate totals from raw data. The figures appearing below the horizontal

line represents the totals and corresponding % figures for each of the heads of data listed horizontal across the page. Thus in this table in the `Non-

Curfew Cases' the figures displayed as `Total' below the horizontal line show that 6 arrests were carried out by the RUC alone and that this

amounted to 40% of the total listed at the end of line 15 (100%). The figures appearing to the right of the vertical line represents the totals and

corresponding % figures for each of the heads listed vertically down the page. Thus in the figures displayed as `Total' to the right of the vertical

line show that 11 of the defendants were loyalists and that these constituted 73% of the total listed at the end of the line of 15 (100%). On the use

of SPSS in generating these tables see `Addendum'.

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357

Table 2 Where and When Were the Arrests?

Curfew Cases

Time of First Arrest

00±04 04±08 08±12 16±20 20±24 Not known Total

Location of Count Row Count Row Count Row Count Row Count Row Count Row Count Col

First Arrest % % % % % % %

Home 0 7 3 0 0 0 10 24%

Street 1 2 0 0 1 0 4 10%

Custody 0 0 1 0 0 0 1 2%

Elsewhere 0 0 0 0 0 0 0 0%

Other scene of

crime 0 15 11 0 0 0 26 63%

Total 1 2% 24 59% 15 37% 0 0% 1 2% 0 0% 41 100%

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2. Detainee profiles

The profile of detainees is important in clarifying the breadth of impact of

the sharper end of curfew operations, and therefore in helping to explain its

overall depth. The available information on curfew detainees (all in the

sample were male), reveals that at least 40 per cent were in some kind of

skilled employment, and only 10 per cent are known to have been

unemployed (see Table 3). Detainee age profile is notable for its spread:

the percentage aged 25 or over is slightly higher than that aged 22 or under.

This picture is markedly different from that of Diplock defendants in 1975,

of whom around 60 per cent were aged 21 or under.

One interpretation is

the counter-intuitive one that those involved in the 1970 violence were older

than later participants. But as will be seen, the high acquittal rates in curfew

cases, and the circumstances of charging, suggests that many defendants

were uninvolved individuals, caught up in events. It is significant that no

defendant could be identified as having any kind of criminal record for

offences that appeared to be paramilitary-linked. In terms of age, class, and

previous convictions, the picture of curfew detainees that emerges is one of a

cohort largely representative of males in a Belfast working-class community.

3. Detention and questioning

The pattern of interrogation of curfew detainees helps to throw light on the

shortcomings of the presentation of evidence given at trial, particularly when

the approach in 1970 is contrasted with what later became the norm. The

court survey reveals that the vast bulk of curfew detainees (93 per cent) were

taken to Springfield Road joint Army-RUC base, where they were subjected

to a second (RUC) arrest. This contrasts with non-curfew cases, where, in

accordance with ordinary police practice, there was little centralization, with

non-curfew detainees held at ten different locations. In a sense this

prefigured the switch from 197 1 onwards to dedicated inter rogation

centres.

But it may be wrong to read too much into this as Springfield

Road was the local base for the Falls. It probably paints a truer picture not to

suggest that the Springfield Road base was deliberately chosen as an early

dedicated interrogation centre but, rather, that the imperatives of a large-

scale enterprise such as the Falls operation helped to lay an operational print

(large number of detainees in a limited number of centres), that was later

extensively adopted.

There is little to suggest intensive interrogation of curfew detainees by

the RUC. This contrasts sharply with the situation a year later, when

358

68 It was not always possible to determine precisely when age was assessed, hence the

figures here should be regarded only as being accurate to within a few months.

69 Boyle, op. cit. (1975), n. 11, table 3.2, p. 23.

70 id., p. 46.

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359

Table 3 Class and Age

Curfew Cases

Age of Defendant

19 or under 20±22 23±24 25±27 28 plus Not known Total

Class of

Defendant Count Row Count Row Count Row Count Row Count Row Count Row Count Col

% % % % % % %

Skilled non manual 1 0 0 1 0 0 2 5%

Skilled manual 2 1 0 1 4 0 8 20%

Partially skilled 1 1 1 0 3 0 6 15%

Unskilled 3 0 0 1 1 0 5 12%

Unemployed 2 1 0 1 0 0 4 10%

Not Known 0 0 0 0 0 16 16 39%

Total 9 22% 3 7% 1 2% 4 10% 8 20% 16 39% 41 100%

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following internment some detainees were subjected to sleep and food

deprivation, wall-standing, hooding, and `white noise'.

It also contrasts

with the situation in the late 1970s and 1980s in which large number of

detectives operated in interrogation teams in individual cases. In the case

of curfew detainees, the court files reveal a universal pattern of only one

RUC detective conducting interrogations. Nor were these detectives

engaged in multiple interrogations of individual suspects: in all the curfew

cases the detainees were subjected to only one RUC interrogation session,

while in non-curfew cases only 13 per cent involved more than one (see

Table 4). Only 10 per cent of curfew cases yielded a confession (the figure

in non-curfew cases was 13 per cent). But this was not because curfew

detainees remained silent: the files indicate that all replied to questions,

mostly to explain that on imposition of the curfew they had sought shelter

in premises in which a weapon was subsequently found. By later standards

the process was not long drawn-out: the files indicate that in 95 per cent of

curfew cases the period between first arrest and charging was less than

twenty-four hours.

Of course this account of interrogation relates only to RUC practice; it

says nothing about Army behaviour other than that the Army did not obtain

confessions that were relied upon as evidence. A contemporaneous locally

produced report was very critical of the military, claiming that detainees at

Springfield Road were `very roughly used by the troops'.

Notably though,

the report makes no claim that Army brutality occurred in the course of

interrogations, whether calculated to obtain confessions or operational

intelligence (though it might be implied that the aim was to `soften up'

suspects prior to RUC questioning). The question of the purpose of the

brutality (if any) is left open.

Whatever the purpose or effect of the Army's behaviour, the overall

picture that e merges is fa r different f rom the confes sion-orien tated

interrogation system that emerged later in the 1970s.

Prior to the 1973

lowering of the standard for the admissibility of confessions in Diplock

cases , inte rroga tion s in Nor thern I rela nd rema ined s ubje ct to the

`voluntariness' requirements of the pre-1964 Judges' Rules. A block

therefore existed on intensive interrogation, at least if this was geared to

producing evidence that would be admissible in court.

There was also an

institutional dimension in that in 1970 RUC Special Branch was at nothing

like the strength it later achieved (in February it numbered only eleven

officers).

In any case, since most indictable curfew prosecutions flowed

360

71 Ireland v. UK 25 Eur. Ct. H.R. (ser. A), 207.

72 CCDC, op. cit., n. 7, p. 16.

73 Walsh, op. cit., n. 11, p. 84.

74 See Diplock, op. cit., n. 11, paras. 73±92 and Rv. Flynn & Leonard [1972] May

N.I.J.B. 112, 131.

75 Some details can be found with Cabinet conclusions 5 February 1970, CAB4/1500

PRONI.

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361

Table 4 Did Interrogations Yield Confessions?

Curfew Cases

Number of RUC Interrogation Sessions

1 2±3 Total

Confession Count Row % Count Row % Count Col %

Written 2 0 2 5%

Oral 2 0 2 5%

None 37 0 37 90%

Total 41 100% 0 0% 41 100%

Non-Curfew Cases

Number of RUC Interrogation Sessions

1 2±3 Total

Confession Count Row % Count Row % Count Col %

Written 0 2 2 13%

Oral 0 0 0 0%

None 13 0 13 87%

Total 13 87% 2 13% 15 100%

ßBlackwell Publishing Ltd 2003

from arms searches, prosecutors may have assumed that once the suspect

could be located at the scene of the find, the evidence spoke for itself, thus

rendering confessions unnecessary (though as events transpired this proved a

vain hope).

4. Charges and evidence

Prior to the institution of the office of the DPP in 1972, virtually all decisions

on prosecutions lay with the RUC. Those arrested for simple breach of the

curfew order eventually found themselves facing `impeding' charges under

the Criminal Justice (Miscellaneous Provisions) Act 1968.

Thus, breaches

of a non-statutory curfew were tried as, and convictions obtained for,

statutory offences. As regards indictable offences, the centrality of firearms

charges to the prosecution strategy is illustrated by their utilization as the

most serious charge in 88 per cent of curfew cases, a much higher figure than

in the non-curfew group (33 per cent, see Table 5).

As Walsh has made clear, analysis of the processing of cases from

charging through to trial must involve some assessment of the strength of the

evidence employed. In assessing this strength, confessions were treated as a

separate case, enabling judgement to be made on the extent of prosecution

reliance upon them. Apart from confessions, the rule of thumb was that

`strong circumstantial, identification or forensic evidence would amount to

substantial evidence'.

Where for instance, five people were detained at a

house at which a weapon was found, and all were charged with `possession',

the evidence was deemed strong in the case of an individual or individuals

who could be specifically linked to the weapon, but weak if the person(s)

could not be so linked.

Application of this standard to the curfew detainees revealed that

instances in which there was a confession (written or oral), and other strong

evidence amounted to 10 per cent of the curfew total; 39 per cent of cases

were based on `other strong' (non-confession) evidence, but a very high

percentage, 51 per cent were based on `other weak' (non-confession)

evidence (see Table 6). In the non-curfew cases, the evidence appeared much

stronger; 94 per cent were based upon evidence classified as `other strong'

(non-confe ssion) or as `wr itten [confe ssion] and oth er strong'. Th e

remaining 7 per cent involved a written confession and other weak evidence.

362

76 s. 7(1) provides that `Any person who (a) assaults, resists or impedes any constable in

the execution of his duty or any person acting in aid of such constable . . . shall be

guilty of an offence'. See `Newsman in Curfew Case Cleared' Irish News, 28 July

1970.

77 The intricacies of the legislation meant that some offences (involving ammunition

and certain types of firearm) were charged under `explosives legislation', even though

they would ordinarily be considered as firearms offences (and are so considered in

this study).

78 Walsh, op. cit., n. 11, p. 17.

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363

Table 5 What Were Suspects Charged With?

Curfew Cases

Charges (most serious)

Firearms Explosives Rioting/arson Other Total

Background of Count Row Count Row Count Row Count Row Count Col

Defendant % % % % %

(All Republican) 36 0 0 5 41 100%

Total 36 88% 0 0% 0 0% 5 12% 41 100%

Non-Curfew Cases

Charges (most serious)

Firearms Explosives Rioting/arson Other Total

Background of Count Row Count Row Count Row Count Row Count Col

Defendant % % % % %

Loyalist 4 2 2 3 11 73%

Republican 1 1 0 2 4 27%

Total 5 33% 3 20% 2 13% 5 33% 15 100%

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364

Table 6 How Strong Was the Evidence?

Curfew Cases

Evidence (confession)

Written and Oral and Written and Oral and

strong other strong other weak other weak other Other strong Other weak Total

Background of Count Row Count Row Count Row Count Row Count Row Count Row Count Col

Defendant % % % % % % %

(All Republican) 2 2 0 0 16 21 41 100%

Total 2 5% 2 5% 0 0% 0 0% 16 39% 21 51% 41 100%

Non-Curfew Cases

Evidence (confession)

Written and Oral and Written and Oral and

strong other strong other weak other weak other Other strong Other weak Total

Background of Count Row Count Row Count Row Count Row Count Row Count Row Count Col

Defendant % % % % % % %

Loyalist 1 0 1 0 9 0 11 73%

All Republican 0 0 0 0 4 0 4 27%

Total 1 7% 0 0% 1 7% 0 0% 13 87% 0 0% 15 100%

ßBlackwell Publishing Ltd 2003

Thus, no convictions were based on `other weak' evidence, a state of affairs

that corresponds in some respects to that represented by later studies.

This has impl ications fo r a debate that h as surfaced re gularly: th e

discrimination issue. While in non-curfew cases republicans and loyalists tend

to be treated similarly in relation to charging, if the curfew and non-curfew cases

are lumped together, quite a different picture emerges: curfew defendants all

came from nationalist/republican communities. Viewed in this way, charges

were more likely to be brought on the basis of weak evidence in the case of

nationalist defendants than in the case of loyalists. This is a direct function of the

curfew operation itself ± a kind of operation employed only in a nationalist area.

Again this seems to prefigure the analysis of Boyle et al., locating

differences in security strategies affecting the two communities in an

institutional bifurcation between army/nationalist/internment and RUC/

loyalist/prosecution. In 1970, the distinction was less marked as since the

cases of suspects from both communities could be disposed of only by

prosecution. But the adoption by the RUC at the charging stage of decisions

made as a result of the army's mode of operation in nationalist communities

resulted, in the curfew cases, in a systematic difference in treatment.

5. Trial

The limitations of available primary data impact upon the assessments which

can be made of the conduct of the trial proper of curfew detainees. But, as in

previous studies, an accurate assessment of the main thrust of prosecution

evidence can be made. The most useful way to analyse this evidence may be

to focus on issues that later emerged as centrally important in Diplock trials,

comparing and contrasting practice in 1970 (when jury trial still prevailed)

with later experience.

A critical issue already highlighted is the much lower reliance upon

confessions in 1970. Nor, as the court files reveal, did evidence from civilian

witnesses play a large role in the trial of curfew detainees, whether through

unavailability, or from fear of, or sympathy with, the defendants. What of

forensic evidence, which assumed a more important role in Diplock trials in

the 1980s? In order to assess the use made of forensic material in curfew

cases, such evidence was broken down into two categories: `strong forensic'

and `weak forensic' (see Table 7). The former consisted of evidence that

specifically implicated the accused; an example would be the finding of the

accused's fingerprints on a weapon. The latter could be described as

`technical' forensic evidence, providing a necessary ingredient for the proof

of an offence, but not specifically implicating the accused. An example

would be evidence that a firearm was in a useable condition, though not

indicating by whom it had been used.

365

79 id., p. 84.

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366

Table 7 Was Forensic Evidence Used?

Curfew Cases

Evidence (forensic)

Strong Weak

(Links accused) (Does not link accused) None Not known Total

Background of

Defendant Count Row Count Row Count Row Count Row Count Co

% % % % %

All Republican 0 39 1 1 41 100%

Total 0 0% 39 95% 1 2% 1 2% 41 100%

ßBlackwell Publishing Ltd 2003

While weak forensic evidence figured strongly in curfew cases (95 per

cent), strong forensic figured not at all. This is a key finding when combined

with the dearth of other evidence. The high prevalence of weak forensic

evidence is a function of the extensive employment of firearms charges, but the

total absence of strong forensic evidence means that in no case did forensic

evidence link the accused to the weapon. This state of affairs could, in turn, be

said to be a function of the curfew operation, whereby people were ordered off

the streets and had to find shelter in whatever empty building they could find.

A frequently repeated evidential scenario was that when the army raided a

house and found a firearm or ammunition, all those in the dwelling were

arrested and subsequently charged with possession of the material. Thus the

general picture in the firearms cases (which formed 88 per cent of the curfew

group) (Table 5) was that there was nothing to link the accused to the weapon

other than their both being in the same premises at the same time.

The typical pattern in jury trials in Northern Ireland in the 1970s was that

around 80 to 90 per cent of defendants tended to plead guilty, while 10 to 20

per cent tended to contest.

The high figure of 80 to 90 per cent guilty pleas

is taken to reflect the strength of well prepared prosecution cases. About a

half of the 10 to 20 per cent who pleaded `not guilty' tended to be acquitted.

Thus, the overall conviction rate including both contested and non-contested

cases tended to be around 90 to 95 per cent, and that in contested cases

tended to be around 50 per cent. In Diplock courts in the same period, the

conviction rate in contested cases tended to be higher.

With an overall conviction rate of 87 per cent (once the `not knowns' are

excluded), the non-curfew group appears to approximate roughly with the

jury-trial pattern (see Table 8). The curfew detainees though are radically

different: the overall conviction rate, excluding `not knowns', is 38 per cent

as against the conventional 95 per cent. Even allowing for the fact that the

picture may be skewed by the large number of `not knowns', this percentage

cannot be viewed other than as strikingly low. If all the `not knowns' were

guilty the conviction rate would rise to only 56 per cent, an extremely

unlikely event as most of the `not knowns' were based upon weak evidence.

While the lack of data about the precise number and types of plea means

that a detailed analysis of contested cases is impossible, it is obvious that a

much higher percentage of the curfew cases than usual was contested,

producing an elevated acquittal rate. This was predictable and suggests

severe shortcomings in the prosecution strategy. As noted above, analysis of

the nature of the evidence in the curfew cases discloses that 51 per cent of

prosecutions were based on `other weak' (non-confession) evidence (see

Table 8). Excluding `unknowns', all of these cases can be said to have

resulted in acquittals.

367

80 See Boyle et al., op. cit. (1975), n. 11, p. 63.

81 id., p. 60.

ßBlackwell Publishing Ltd 2003

368

Table 8 Outcomes and Evidence

Curfew Cases

Evidence (confession)

Written and Oral and Written and Oral and Total

strong other strong other weak other weak other Other strong Other weak Total Excluding

`Not Known'

Outcomes Count Row Count Row Count Row Count Row Count Row Count Row Count Col Count Col

Not Guilty 0 0 0 0 4 14 18 44% 18 62%

Guilty 0 1 0 0 10 0 11 27% 11 38%

Not Known 2 1 0 0 2 7 12 29%

Total 2 5% 2 5% 0 0% 0 0% 16 39% 21 51% 41 100% 29 100%

Non-Curfew Cases

Evidence (confession)

Written and Oral and Written and Oral and Total

strong other strong other weak other weak other Other strong Other weak Total Excluding

`Not Known'

Outcomes Count Row Count Row Count Row Count Row Count Row Count Row Count Col Count Col

Not Guilty 0 0 0 0 1 0 1 7% 1 13%

Guilty 0 0 0 0 7 0 7 47% 7 87%

Not Known 1 0 1 0 5 0 7 47%

Total 1 7% 0 0% 1 7% 0 0% 13 87% 0 0% 15 100% 8 100%

ßBlackwell Publishing Ltd 2003

The charges that contributed most to this state of affairs were those

relating to possession of firearms. Further analysis of the data reveals that in

these cases the conviction rate (36 per cent excluding unknowns) was even

lower than the overall figure. Most of these cases involved the house-search

evidential scenario described above. The discovery of a weapon hidden in a

house might be taken to present the prosecutor with a good basis for

proceeding against the occupant of the property, but only 24 per cent of

defendants in curfew cases were arrested at home (see Table 2). Instead the

bulk of arrests came under the `other scene of crime' heading, which

generally meant the house where the weapon was found, and most of these

were in the early hours of the morning.

The prosecutorial debacle represented by an overall conviction rate of 38

per cent is therefore not due to chance factors; rather is directly linked to the

nature of the initial military operation. The critical element in the causal

chain was put in place when the RUC decided on what seems to have been

blanket prosecutions of those found in premises in which weapons were

discovered. At that point Army and police strategies merged, as the RUC

attempted to shoehorn an approximation to the `military-security' approach

into a criminal justice model.

6. Curfew: the sequel

In response to the curfew, administrative reforms in mid-July 1970 required

MOD approval for future major operations, but their impact, and that of the

experience of the curfew on the security apparatus generally, is difficult to

determine. Certainly the public messaging at the highest level was one of

approval: the GOC(NI) was made a Knight Grand Cross Order of the British

Empire in 1971, the year in which he retired.

While the curfew tactic was not

repeated, the following years saw a number of large-scale military operations

that had even greater negative impact. Recently released papers in relation to

the 1971 internment operation display a still fractured decision-making

process, though with a partial reversal of institutional emphasis; it is the

Stormont government that seems to have been particularly bullish, while

significant sections of Army opinion seem to have remained unconvinced

about the desirability of the operation.

At the time of writing, the Saville

Inquiry into the Bloody Sunday killings has yet to reach overall conclusions,

but the evidence to date paints a picture of divided chains of command,

obfuscation, and institutional friction familiar from the curfew period.

Following these debacles, Stormont was prorogued in 1972, thereby

producing a degree of institutional rationalization. The strategy of military

primacy eventually ended with the introduction of the new policy of

369

82 Who Was Who 1971±1980 (1981) 279±80.

83 A.P. Hockaday to PS/S of S, 2 August 1971, CJ4/56 PRO Kew, and UK Rep NI to

Home Office, CJ4/56 PRO Kew.

ßBlackwell Publishing Ltd 2003

`criminal ization, U lsteriza tion, and no rmalizati on' in 1977. A dmini-

stratively, this formally subordinated the military to the police effort, but

it is arguable that despite some important judicial rulings, the issue of the

legal limits of permissible military action remained unresolved throughout

the conflict.

PART III. CONCLUSIONS

The Falls curfew is the militarization phase of the Northern Ireland conflict

in microcosm. Its multi-faceted problems forcefully challenge claims for the

export value of Northern Ireland security practices in the `war against

terrorism'; indeed, in some respects it throws up a deeper critique, implicitly

challenging the core assumption of the `war' model.

1. Constitutional and legal failings

The most obvious problem highlighted relates to the United Kingdom's

constitu tional fra mework gov erning mil itary int erventio n in conflic t

situations. The issues can be summarized as: a lack of clarity as to the

legal basis for intervention; the democratic deficiency of doctrines seemingly

giving the Army a power of intervention without governmental approval, or

indeed, in defiance of government; and a mismatch between legal and

administrative norms. Perhaps the way to explore the problem is flatly to ask

`was the curfew lawful?' Claims for its lawfulness must be based on the

continuing validity of either common law or prerogative theories of military

intervention, and must further claim that action taken was in accordance with

these doctrines. In common law terms, the duration of the curfew and the

fact that initial house searches were without statutory basis suggests that the

exercise was closer to the martial-law than the riot-control end of Dicey's

scale. Within the internal logic of this discourse, it could be countered

forcefully that there was no necessity for the action taken by the military. Or

if necessity justified the immediate imposition of restrictions, such measures

were lawful only for the short period required either to clear the streets or to

permit the Stormont Minister to invoke statutory powers.

The other possibility is that the curfew was an exercise of the prerogative,

but this runs into a number of objections. It is not clear that, historically, a

prerogative power to impose curfews existed. If it did, then non-statutory and

statutory powers (Special Powers regulation 19) existed in the same area.

But the Special Powers Act and many of its regulations were derived from

370

84 Attorney General for Northern Ireland's Reference (No. 1 of 1975) [1977] A.C. 105.

See, generally, F. NõÂ AolaÂin, The Politics of Force: Conflict Management and State

Violence in Northern Ireland (2000).

ßBlackwell Publishing Ltd 2003

the Defence of the Realm Acts 1914±20 and their Irish progeny (the

Restoration of Order in Ireland Act 1920). Key British and Irish cases

relating to this legislation had held that where prerogative and statutory

emergency powers existed in the same area the prerogative power was

subsumed in the statutory.

Thus, since the curfew had not been imposed

under Special Powers regulation 19, it should be considered unlawful.

Finally, had there been a legal challenge to the curfew, the superior courts

might have taken the opportunity to undermine or expunge such doctrines of

independent military action, at least beyond tightly-controlled time-scales,

whether common law or prerogative.

The curfew was therefore probably unlawful, at least beyond its first few

hours. But this was not the view taken by the Army, nor by the relevant

magistrate: the only point that is absolutely clear is that there is no clarity.

The legal basis for military intervention was therefore lacking in precision in

respect of when the military could deploy (including the question of whose

consent was needed), and what it could do after deployment. These failings

have implications not only for the United Kingdom, but for many other

common-law jurisdictions (such as the United States). The shortcomings of

the initial decision on deployment were to some extent mitigated by the

subsequent elaboration of administrative norms. But despite an awareness of

a general problem in the area, no attempt was made to elaborate appropriate

administrative post-deployment norms until after the problem of the curfew

had arisen. Even then it is not clear what effect these norms had, either in

practical terms, or in terms of the capacity of the administrative to trump the

legal.

2. Institutional failings: fractured command

The experience serves as a caution against cosy assumptions of the reach of

democratic n orms; at the ver y least, the cu rfew shows tha t Army

internalization of these norms was far from complete. Overall though,

British emergency powers in the twentieth century have moved from non-

statutory to a statutory basis. If the curfew should therefore be seen as an

egregious element in what was otherwise an identifiable trend in relation to

emergency powers, the question arises as to why it emerged at that particular

juncture. One obvious explanation lies in Northern Ireland's geographical,

political, and legal distance from Britain. But this is at best a partial answer,

since the even more distant experience of the use of emergency powers, from

371

85 AG v. De Keyser's Royal Hotel Ltd. [1920] A.C. 508, followed in Ireland in Egan v.

Macready [1921] 1 I.R. 265. See Campbell, op. cit., n. 28, pp. 115, 140±7.

Prerogative powers though have a curious resilience: see R. v. Sec. of State for the

Home Department, ex parte Northumbria Police Authority [1988] 2 W.L.R. 590, and

Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All E.R.

935.

ßBlackwell Publishing Ltd 2003

Palestine (1930s) to Aden (1960s), was of exclusive reliance upon statutory

provision.

A significant part of the explanation must lie in the fracturing of

administrative, legal, and political authority in 1970, between the Army, the

MOD, the Home Office, Stormont, and the RUC. Viewed in this light, the

curfew represented a failing of democratic governance: in an environment

characterized by the absence of appropriate controls and by a mismatch

between administrative and perceived legal accountability, the Army fell

back on an institutional memory of techniques employed in colonial

experiences elsewhere, and the common law became a vehicle for their

operationalization. And as recent controversy over agent-handling indicates,

this problem of di vided and dysfun ctional North ern Ireland con trol

mechanisms may not have been solved.

3. Implications of the `war' model

Fractured and ineffectual civilian control therefore facilitated a return to

primordial military thinking, in which the prime consideration during the

curfew became the deployment of sufficient force to guarantee success in the

`battle'. This untrammelled transposition of a military model to a civilian

context produced a straightforwardly repressive technique - an extreme

version of the `military-security' approach. The curfew therefore set a

pattern; in subsequent years, this institutional memory played out in abusive

interrogation techniques and in a cavalier use of lethal force (though in these

instances the legal underpinning was somewhat different).

The `battle/war' model that permeated Army thinking during the curfew

brought with it a demand for control of territory, operationalized as

indiscriminate restrictions on the civilian population. The lesson here for the

`war on terrorism' is that a sufficiently strong regular military force can

always achieve domination of territory in conventional military terms, but

such rapidly achievable gains may have a high long-term price. The Army

did succeed in ending the rioting within a few hours, and the fire-fights

ended within a few more, but the domination achieved by the curfew was

inherently indiscriminate, a quality that helps to explain why the operation

had such counter-productive effects. At an immediate level, the restrictions

bore just as heavily on an entire segment of the nationalist population of

Belfast as on the gunmen. Empirical data from the court survey helps to

amplify this point. The representativeness of curfew detainees in terms of

372

86 See Simson, op. cit., n. 8. Also see, generally, C. Townshend, Britain's Civil Wars:

Counterinsurgency in the Twentieth Century (1986).

87 In 2003 it was claimed that an Army intelligence unit had allowed one of its Agents

(`Stakeknife') within the IRA to kill with impunity. This aspect of military operations

was not subordinated to the police; indeed some of those killed may have been police

agents. See `Stakeknife Revelations Hurt IRA and Army' Guardian, 17 May 2003.

ßBlackwell Publishing Ltd 2003

age and class (though not gender), can be considered a function of the

indiscriminate nature of the tactic, a quality directly related to its common

law underpinning. Mass arrests carried out exclusively by the military,

mostly in the early hours of the morning, and mass detentions in a

centralized holding centre, must have greatly increased the curfew's shock

effect, particularly given allegations of Army brutality. Confirmation from

the court survey that all defendants were nationalists, and utilization of the

tactic only in a nationalist area, may help to explain the strong sense of

communal victimization which was present before, but which solidified

early in the Troubles. This sense of victimization is likely to have been

intensified by the RUC policy of blanket charging in relation to arms finds

evident from the survey. Again, this partiality suggests a broader lesson: the

incapacity of primordial military thinking to cope evenhandedly with

complex ethnic, or quasi-ethnic conflict.

4. Collapsing legitimacy

At a deeper level, the indiscriminate nature of the operation impacted sharply

upon the broader `struggle for legitimacy'.

This was particularly so as

contemporary doubts about the legality of the curfew meant that the blanket

of formal rationality was almost entirely absent. The result was precisely the

kind of delegitimation described by Balbus. In effect, the indiscriminate

nature of an operation conducted according to a `war' model served to erode

the bond of consent between the British state (in this instance represented by

the Army) and the governed. When this effect was amplified by further

military actions in 1971 and 1972, the result was the creation of an

environment within the communities most affected by the initiatives, in

which political violence and terrorism were either tolerated or supported.

Thus, the `war' model served in no small measure to sow the seeds for the

quarter century of violence that followed; in that respect it became a self-

fulfilling prophecy.

This is not to paint a simplistic picture of the delegitimating effect of legal

failings. Despite escalating violence, the Northern Ireland situation did not

spiral completely out of control, and repression, while significant, was rarely

unlimited . There must t herefore h ave been som e sort of `dam per'

mechanisms, as a closer exploration of the role of law in the immediate

aftermath of the curfew may help to illustrate. While the very high acquittal

rate of curfew detainees at ultimate trial reinforces the critique of blanket

charges, it also points to important differences in the quality of law that

emerged from the attempted shoe-horning of a military-security approach

into the criminal justice system. The common law, as interpreted by the

373

88 The CCDC report (op. cit., n. 7), for instance, displayed considerable confusion as to

the legal basis of the curfew, locating its condemnation in a discussion of the `Riot

Act', seemingly unaware that the Act in question had been repealed.

ßBlackwell Publishing Ltd 2003

Army in the curfew, was straightforwardly repressive. With little or no

mediating role, it functioned as a legal vehicle for military control of the

civilian population, producing, just the kind of `serious abrogations of the

principle of formal rationality' described by Balbus. The same cannot be said

of the trials on indictment since the very high percentage of acquittals meant

that they functioned as an effective site of contestation of some of the more

egregious excesses of the curfew operation. The law therefore displayed a

`resistant' quality, which argues against crude instrumentalist attempts to

characterize the entire use of law from imposition of the curfew through to

trial as straightforwardly repressive. A similar point can be made about the

virtual absence of reliance upon confession evidence which the survey

reveals. This absence can be directly linked to the limited interrogation

regime revealed by the data, which in turn can be considered a function of

the strict rules on admissibility of confessions that then applied.

This suggests that in liberal democratic states experiencing conflict, law

makes a difference, perhaps insufficient to prevent recourse to a strategy of

repression, but capable nonetheless of acting as a damper on repressive

technique. In this sense law can be consid ered as a self-correcting

mechanism of the liberal state, if only a partially effective one. The

implications for the `war against terrorism' is that where a state opts for a

strategy calculated to evade legal accountability (for example, the holding of

detainees at Guantanamo Bay beyond the jurisdiction of domestic courts),

this damping effect is absent, creating a potential for long-term harm.

5. How not to do things with rules

The overall picture to emerge from exploration of the militarization phase of

the Northern Ireland conflict as represented by the Falls curfew is that the

security strategies pursued in the region do indeed offer lessons of global

significance, but these may not be the lessons suggested in official discourse.

The episode highlights the inadequacy of common-law norms in respect of

military intervention in conflict situations, and points to divided and

inadequate channels of civilian control of the military, amounting to a multi-

layered failure of democratic governance. The experience suggests that use

of a `war' model in the face of complex public-order problems, political

violence, and terrorism risks providing short-term gains at the expense of

long-term damage.

However, the curfew experience offers at least one positive lesson: that of

the capacity of law to act as a partially self-correcting mechanism when the

liberal-democratic state engages in a strategy of repression. But this points to

a corollary of critical global importance: where a state elects to follow a

counter-terrorist strategy that successfully evades legal accountability, it

risks descent i nto a situati on of unmediate d repression, co ntinually

reinforcing the problem it is purporting to solve.

374

ßBlackwell Publishing Ltd 2003

ADDENDUM: METHODOLOGY

The judicial records relied upon from PRONI consist of the available `court

files' on all the Troubles-related indictments tried in Belfast City Com-

mission in 1970. Following the methodology employed by Boyle, Hadden,

Hillyard, and Walsh, the trial of one individual is referred to as a `case';

several such cases could be tried on one indictment, and in each case the

defendant typically faced a number of charges. Of the total of fifty-six cases,

forty-one relate to the Falls curfew. For each case, a data sheet collecting

such variables as time of arrest, place of arrest, and so on was completed;

this information was then coded and cross-tabulations generated using SPSS.

In Table 8, `outcomes' relate to individuals rather than particular charges.

375

ßBlackwell Publishing Ltd 2003

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A Model for the ‘War Against Terrorism’? Military Intervention in Northern Ireland and the 1970 Falls Curfew

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