Joe McCann: Does trial by combat trump trial by jury?

In the end, it didn’t come down to a question of did they or didn’t they. The two soldiers charged in the High Court in Belfast with the murder of Joe McCann, a leading gunman for the Official IRA, back in 1972 were released on instruction of the judge, Sir John O’Hara QC, who had previously declared a key part of the prosecutorial evidence to be inadmissable. 

I have no doubt that O’Hara was right. He is one of the most experienced judges in Northern Ireland, a Catholic, highly respected on all sides of the political and religious divide. But whether justice was done is another matter. 

What mattered was due process. Who had investigated the case at the time and with what result? Did the Police Service of Northern Ireland follow correct procedure when they re-opened the case decades later? What witnesses were available? Who remembered what, and what reliance could be placed on rushed statements made at the height of the Troubles half a century ago? 

And so soldiers A and C (soldier B having died in the meantime) walked free and were immediately flown back to England. The former paratroopers, now in their seventies, were able to remain anonymous throughout and, according to reports, are hoping that the example of their case will end what is often referred to as a witch-hunt against Army personnel who have killed in the line of duty. 

For what it’s worth, I have sympathy with the old soldiers. They were caught up in a dirty war that all too often was not governed by Queen’s Regulations. The three did not set out that afternoon, 15 April 1972, with a view to murdering anyone. They were on patrol in a dangerous part of a dangerous town when they were informed by the then-RUC that the young man walking down the street ahead of them was the notorious gunman Joe McCann.

McCann, it should be said at once, was believed at the time to have killed at least two British soldiers, and quite possibly others, and would have loved nothing more than to turn and kill the squaddies pursuing him. He was on the run as one of Ireland’s Most Wanted. 

Soldiers A, B and C were not the first to approach McCann. A police officer, acting on information from Special Branch, was the one who confronted him and attempted to place him under arrest. But McCann was too quick for him and sprinted away. A desperate chase ensued through the strongly Republican Markets district of Belfast, east of the city centre, which ended with McCann being shot three times in the back. 

This is where it gets messy. McCann was found to be unarmed and is reported to have said to the soldiers as they drew level with him, “You have got me cold, I have no weapon”. Was he shot again, this time at point-blank range? We may never know for sure, but ten bullet casings were subsequently recovered at the scene. 

Over the decades that followed, the three Paras responsible left the Army and returned to civilian life. One of them, Soldier B, died some years ago. What matters now is not so much the legal complexities of the case as the sense it left behind of justice dispensed (if you were a Unionist) or justice denied (if you were a Republican). Loyalists in Belfast rejoiced. Nationalists mourned the loss of one of their most storied, and dashing, defenders. 

As it happens, I once spent a weekend with Joe McCann. In the early summer of 1971, when I was still living at home in Belfast, my mother took a phone call from my old school pal Ronnie Bunting. Like me, Ronnie was an Ulster Protestant. His father was an ex-Army major who went on to be a close colleague of the Rev. Ian Paisley’s. But, unlike his dad, Ronnie was (again like me) a believer in Irish unity. The difference between us was that he was a Marxist and a firm believer in the Armed Struggle, and I was not. 

I became a journalist; he ended up as the head of the Irish National Liberation Army (INLA) in Belfast. In the course of a bloody and eventful career, he masterminded the assassination in the carpark of the Palace of Westminster of Margaret Thatcher’s principal lieutenant, the war hero and Colditz escapee Airey Neave. The following year, he was himself murdered, by loyalists, who were able to enter and leave the closely-monitored estate in which he lived with his family without being stopped by the Army.

But I digress. On that day in 1971, Bunting called my mother, his father’s cousin twice-removed, and asked if he could bring a friend round who had had a terrible row with his wife and needed somewhere to lay his head until he could decide how best to make things right. My parents lived in a middle-class area in the heart of Unionist East Belfast and my mother was a trusting soul who, in spite of her moral misgivings, agreed to let the young man stay over the weekend to repent of his sins. 

My dad had lately returned to the grocery trade after years as a commercial traveller, dealing in tea. When he returned home that evening, he and his surprise houseguest talked about places they both knew. My dad was particularly interested to learn that the young fellow, though a Catholic from the Markets, had spent time as a boy in the loyalist estate in which he (my dad) was now known as Mr Spar. The two of them got on like a house on fire, and when it turned out that the visitor was a brickie by trade – far superior to anything I had in mind – Dad was completely won over. 

Two days later, when they said goodbye, they were firm friends. My mother told me afterwards that though the young man needed to think hard about saving his marriage, he had impeccable manners. 

I need hardly add that the man in question was Joe McCann and that I, though entirely unaware of his identity, was probably not entirely convinced that he was simply a married man whose marriage was going through a crisis. If he was a pal of Ronnie’s, he was trouble. 

McCann is perhaps best remembered for what happened on August 9, 1971, a couple of months after he first had tea at my mum’s. The Stormont government had just introduced internment without trial, and McCann and his unit responded by taking on an entire regiment of British soldiers whose job was to round up Republican suspects. A photograph taken of him holding his M1 carbine beneath the Starry Plough flag of the Old Irish Citizens Army while the buildings around him blazed is one of the most enduring images of the Troubles. But he also went on to kill a number of soldiers in cold blood and was responsible for seriously wounding John Taylor (now Lord Kilclooney), a leading Unionist politician, who was one of the principal architects of internment. 

Properly speaking, none of the background I have provided on McCann is relevant to the circumstances of his death. All that soldiers A, B and C knew was that a man identified as a leading terrorist was getting away from them and that the only way to stop him was to shoot him. McCann would have understood. If he could have taken them with him, he would.

In the days that followed, the Official IRA killed three soldiers and wounded two others in reprisal for the shooting of McCann, whose funeral was one of the largest ever staged in Belfast. None of those responsible was arrested and charged.

But now the debate has widened out. Supporters of the Army, led by retired senior officers, have argued persuasively that soldiers in uniform, on duty, in situations in which they or others could be shot, have a right and a duty to save lives and maintain the peace. I agree. But that does not mean that soldiers should be free, without fear of retribution, to ignore the rules of engagement that the rest of us like to imagine make war a civilised pursuit, governed by an unwritten code of honour as much as by law. 

If and when other soldiers appear before the courts charged with murder, it is the facts of each case that ought to determine the result, not the sense that agents of the state are always right and that anything “our boys” do is protected by the fact that they wear the Queen’s uniform.

It could well be that soldiers A and C behaved as they did because they were left with no realistic alternative. McCann was a known terrorist and had refused an order to stop. He was fleeing into a maze of streets filled with his supporters. Was he armed? They didn’t know.  Was he resourceful and ruthless? Undoubtedly. On the other hand, when they stood over him lying on the ground, bleeding from gunshot wounds, shouldn’t they, while still keeping guard, have tried to revive him? Was it necessary to shoot him again (which the trajectory of the fatal bullet could suggest)? On the latter question, I would have to say, the jury is still out.