HET report into the death of William McGreanery

The HET carried out a review and focused investigation, including interviewing the soldiers concerned and have concluded;

"it is the view of the HET that he was not pointing a rifle at the soldier at the time. He was not involved with any paramilitary organisation, he was not carrying a firearm of any description, and he posed no threat to the soldiers at the observation post."

The soldiers were interviewed in 1971 by the Royal Military Police (see Appendix A), but the statements of the civilian witnesses, who all clearly said that Mr. McGreanery was not armed, were not put to them.

Despite this failure, following the investigation by the RUC in 1971, the local RUC Commander, Chief Superintendent Frank Lagan was clearly of the opinion, in light of the of the conflict between the military and civilian evidence, that the shooting of Mr McGreanery was unlawful.

He submitted a report to police headquarters on the 8th November 1971 (see Appendix B for Lagan’s statement) recommending charges of murder.

On behalf of the Chief Constable, an RUC Superintendent at Force Headquarters passed the file to the Chief Crown Solicitor, who was responsible for deciding whether to prosecute, on November 11, 1971. This Superintendent was also of the view that the only way to establish the truth of the incident to the satisfaction of everyone was to proceed against soldier "A" for the murder of William Francis McGreanery. (see Appendix C for the Superintendent’s comments to the Chief Crown Solicitor)

On the 15th November The Chief Crown Solicitor asked the Attorney General for his opinion on whether charges should be proferred.

As a result of the advice given by the Attorney General the Chief Crown Solicitor said that because the soldier was acting in the course of his duty he could not be prosecuted for murder -

"If soldier A was guilty of any crime in this case, it would be manslaughter and not murder. Soldier A whether he acted wrongly or not, was at all times acting in the course of his duty and I cannot see how the malice, express or implied, necessary to constitute murder could be applied to his conduct."  (see Appendix C for complete statement)

The Chief Crown Solicitor then went on to assess whether there was a case of manslaughter to answer. He noted the fact there wa a sharp conflict of evidence between the soldier who fired the shot and the civilian witnesses.

He said the pathologist’s report provided an independent viewpoint and this destroyed most of the civilian witness’s evidence and corroborated the soldiers story.

However, he based this on the interpretation of the position of Billy McGreanery’s arm at the time he was shot. The pathologist’s interpretation was that the gunshot wounds to Mr. McGreanery’s left forearm were indicative of him having been in the "aim" position and the Chief State Solicitor relied on this interpretation though he agreed it was not conclusive "Dr. Carson’s evidence does not of course prove that the deceased had a rifle but it is strongly suggestive of the fact that he was holding his arms in the position of aiming a rifle"

However, Chief Superintendent Frank Lagan’s report clearly says he could not "assimilate the probable positions of the deceased’s left forearm with that of a man holding a rifle or with his left arm extended to give that impression".

What the Pathologist, Dr. Carson actually says is that "at the time the forearm must have been flexed at the elbow and held up in front of the chest, either vertically or horizontally or in some intermediate position". This leaves a wide number of possibilities of where the arm actually was.

The Chief Solicitor went on to say that he was not satisfied that there was a prima-facie case for charging manslaughter as, although there may have been negligence on the soldier’s part this was not sufficiently reckless for it to amount to manslaughter.

The HET conclusions (see Appendix E) clearly vindicate Mr. McGreanery and his family’s fight to clear his name.

APPENDIX A

The RMP/SIB Investigation

There has never been any dispute that Mr McGreanery was shot and killed by a soldier who had been on duty in an army observation post which was situated in an elevated position overlooking the junctions of Eastway, Lonemoor Road and Westland Street in Derry. What has always been in dispute are the circumstances leading up to the shooting, in particular how Mr McGreanery and his colleagues got to that location, what their intention was and whether or not he had been armed with a rifle.

Two soldiers were involved in this incident, both of whom were interviewed after the shooting by the RMP. They were never questioned by the RUC.

The version of events which was related to the RMP investigators by the soldier who had discharged the shot and by his colleague, were at odds with the accounts given by numerous witnesses to RUC investigators, and also to a solicitor acting for the family.

...  During the HET review of the original investigation, one of the most contentious issues identified was that the Special Investigation Branch (SIB) of the RMP interviewed the soldiers involved and recorded their statements of evidence. It is the view of the HET that this practice brought about major failings in the investigative process, to such an extent that it rendered the whole process ineffective.

HET Comment: This report acknowledges that the original investigation in this case was conducted in accordance with an agreement made in 1970, between the Chief Constable of the RUC and the General Officer Commanding of the British army, whereby RMP had primary responsibility for interviewing soldiers who were involved in fatal shooting incidents and the RUC dealt with civilian witnesses. The HET has been researching this policy, and has found an RUC Force Instruction of the time. Crucially, the policy sets out that ultimate responsibility for the conduct of the investigation remained with the RUC. The RUC investigators were to have gathered all relevant civilian witness and forensic evidence, and furnish it to the RMP prior to an interview being conducted with a soldier. It clearly envisaged that soldiers would face a thorough investigation, and was designed to enable the RMP to provide effective support in the difficult times that existed.

However, this policy was not followed; in any event it negated any possibility of independence and it is questionable whether the Chief Constable had the legal authority to devolve his responsibilities in this manner, notwithstanding the immensely difficult security situation that existed at the time.

These arrangements meant that, in practice, soldiers were not interviewed by civilian police officers at all.

Evidence heard during the Saville Enquiry was that the Director of Public Prosecutions for Northern Ireland became concerned that existing practices were unsatisfactory and he directed that all allegations made against the security forces were to be passed to him for examination. The RUC policy in respect of military investigations was updated in September 1973 and from that date onwards the responsibility for the entire investigation, including the interviewing of military personnel should have reverted back to the Criminal Investigation Department of the RUC. In practice though, this did not always happen, and the HET have identified numerous cases where the military interviewed soldiers on behalf of the RUC well into the late 1970’s.

A major component to any investigation is the interviewing of potential suspects or witnesses. A crucial aspect of any such interview is to challenge and test the interviewees’ account of events against what has already been established during the rest of the investigative process. It is obvious that the SIB investigators in this case had no knowledge whatsoever of the allegations that had been levelled at the soldiers by civilian witnesses who had been at the scene of the shooting. Soldier 'A' was interviewed at 1.45pm on September 16, 1971, about 36 hours after the shooting. (The statement of soldier 'B' is not timed and dated but was probably made around the same time).

The RUC had taken statements from the key witnesses Michael Martin Campbell and Mark McLaughlin the day before and both had said that Mr McGreanery was unarmed at the time of his death. Had that vital information been in the possession of the SIB investigators prior to the interviews with the soldiers then at the very least they should have been treated as 'suspects' and should have been interviewed 'under caution'. The evidence of the two civilians should then have been used to challenge the accounts given by the soldiers. This did not happen and the only conclusion that can properly be drawn is that from that point onwards the investigation was irrevocably flawed.

... HET Comment: This report acknowledged earlier that the original investigation in this case was conducted pursuant to an agreement made in 1970, between the Chief Constable of the RUC and the General Officer Commanding of the British army, whereby RMP had primary responsibility for interviewing soldiers who were involved in fatal shooting incidents and the RUC dealt with civilian witnesses. These arrangements meant that, in practice, soldiers were not interviewed by civilian police officers at all.

The HET recognises that real concerns exist regarding the effectiveness and independence of the original investigations that were subject of this agreement.

In civil proceedings arising out of one such case, (the death of Kathleen Thompson in 1971), the issue was considered by the High Court in Belfast in 2003. The Lord Chief Justice ruled that no effective investigation had taken place in such circumstances.

The HET review acknowledges the importance of these factors, and accepts that the overall issue of shootings involving the army has an important political dimension in the current debate over dealing with the past in Northern Ireland. Individual cases are subject of appeals for direct political intervention, Public Inquiry, Inquests, discussions over a Legacy Commission and, in many cases, involvement with the HET review process.

 

APPENDIX B

Memo from Frank Lagan

Chief Constable

Submitted. From the statements of the deceased’s companions- Campbell, McLaughlin, McGinley and Canning – and those assembled at Lonemoor Road/ Westland St. junction (locally known as Stones Corner), it is evident that the deceased with his friends walked rather disjointedly along the Lonemoor Road (Laburnum Terrace) to that junction. He was not armed with a rifle or any article or instrument resembling same. He was not making any gestures with his arms at any time that might be so interpreted. Neither he or his companions have any affiliation or association with any illegal organisation. There had been no disturbances at the junction at the time or within the recent past.

Soldiers "A" and "B" were on duty in their observation post which is on an elevated position from the Lonemoor Road/ Westland St., junction and about 100 yards distant. Soldier "A" states that he saw three men alight from an Austin Cambridge or Morris Oxford car at Stones Corner near the traffic island. After standing under some trees at West End Park they moved towards the traffic island and one of them moved from the others. He had a rifle in his hand and came to the aim position towards his – the soldier’s – observation post. Soldier "A" moved from his position slightly and on seeing this man clearly fired one round 7.62 at him.  He fell and was pulled away by one man whilst the other took the rifle which the soldier says was of .303 calibre. He was not using visual aids. There was street lighting at the junction. He announced to soldier "B" who was in the same observation post of what he had seen. Soldier "B" states that as he was so informed, soldier "A" fired his shot. Soldier "B" cannot help further in any material detail.

As can be seen from the army Log Sheets attached to this file the soldiers were under considerable tension and strain in this locality on the date in question.

Dr. Carson gives his opinion on page 28 and I refer in particular to paragraphs 4 and 5 thereof in which he outlines the direction of the bullet and the bodily position in which McGreanery must have been in relation to the line of fire. Dr. Carson details the position of the forearm and he qualifies this by saying that it would be a most unusual position in a man walking at the time.

Having tried to demonstrate I find it difficult to assimilate the probable positions of deceased’s left forearm with that of a man holding a rifle or with his left arm extended to give that impression.

There are two questions to be answered – (1) Was William F. McGreanery armed with a rifle and (2) If not so armed did the surrounding circumstances support the soldier’s belief that he was so armed? If the former is the case then justification for the soldier’s action prevail.
However, in the latter I consider that a jury would accept that the deceased came along Lonemoor Road on foot and from the opposite direction from which he was alleged to have alighted from the car by the soldier. Soldier "A" is therefore in error and this puts his other observations very much in doubt and the acceptance of his detail about the presence of a rifle unacceptable.

Taking all the circumstances into consideration I cannot find that soldier "A’s" action was justifiable and I therefore recommend that he be charged with the murder of William F. McGreanery.

 

APPENDIX C

[To] Chief Crown Solicitor

Submitted for favour of directions please. The accompanying reports and statements indicate the manner in which above-named met his death at the hands of soldier "A" who was on duty in an army Observation Post, near Eastway Road, Londonderry, at approximately 12.45am on 15th September, 1971, and armed with a S.L.R.

I do not propose to cover all the circumstances which have already been thoroughly gone into. Briefly the facts are that McGreanery and his two companions were on their way home and walking at the junction of Westland Street/ Lonemoor Road/ Eastway Road, when a soldier in an Observation Post approximately 100 yards away, near Eastway Road, discharging one aimed shot at McGreanery and killed him. Though there had been serious rioting and shooting in this area on 14th instant, the streets around the Observation Post were pretty quiet at the time of this shooting and no rioting was taking place. The unsupported statement of the soldier reveals that he saw McGreanery point a rifle at him, and he then fired an aimed shot at McGreanery, who fell to the ground mortally wounded. The soldier further alleges that the rifle was taken away by another man, yet he does not say that he made any attempt to shoot the second man – in fact he didn’t.

The position of the wounds on McGreanery’s body, when taken in relation to the Observation Post from which the S.L.R. is alleged to have been discharged, is quite difficult to understand. One would not have expected these wounds to have been on the left upper arm and left side of the body, but either to the front or right hand side. By the same token one could not presume that McGreanery was in the act of pointing a rifle at the soldier at the time of the discharge of the fatal shot.

Soldier "A" maintains that his orders were that if he was about to be shot he could return the fire, provided it was an aimed shot. There is no evidence that soldier "A" was being attacked with firearms. In fact the whole weight of evidence contained in this file indicates clearly that McGreanery was not attacking anybody, that he was not armed at the time, that the soldier was clearly mistaken in his observations, and that his actions in deliberately shooting McGreanery were clearly wrong.

I feel that the only way to establish the truth of the incident to the satisfaction of everyone is to proceed against soldier "A" for the murder of William Francis McGreanery. I am satisfied that a prima-facie case of murder has been established against him and I recommend proceedings accordingly.

 

 APPENDIX D

As a result of what the Attorney General said, the Chief Crown Solicitor responded to the Chief Constable on December 23, 1971 in the following terms:

• If soldier A was guilty of any crime in this case, it would be manslaughter and not murder. Soldier A whether he acted wrongly or not, was at all times acting in the course of his duty and I cannot see how the malice, express or implied, necessary to constitute murder could be applied to his conduct.

[PFC Comment - a soldier had been shot dead only yards away from this Sangar earlier that day. Two close relatives of the deceased were also serving in the city-one was still stationed at the Essex factory on the night in question and the other was based at Drumahoe. Source HET report. At no stage did the Attorney General or Chief Crown Solicitor take account of the possibility that there was considerable ill-feeling within the British Army as a result of this and other deaths of soldiers.]

• Is there a prima-facie case of manslaughter? There is a sharp conflict between soldier A and the civilian witnesses. If the latter are right then there is a clear prima-facie case of manslaughter and if soldier A is right then the homicide is not criminal. Obviously one must look for independent evidence and this is forthcoming in that of Dr. Carson, the pathologist. His findings are that "the bullet must have come from the front of the deceased somewhat to his left and slightly above him at a time when his left forearm was held in front of his chest. It could not have come from his right side." This evidence destroys most of the civilian evidence which to be true would require the deceased to be shot on the right hand side and certainly not "at the time the forearm must have been flexed at the elbow and held up in front of the chest, either vertically or horizontally or in some intermediate position" – as Dr. Carson says. Dr. Carson’s evidence does not of course prove that the deceased had a rifle but it is strongly suggestive of the fact that he was holding his arms in the position of aiming a rifle.

• My conclusion is that Dr. Carson’s evidence tends to corroborate that of soldier A. I am impressed also by two further facts – one, that immediately before he fired, soldier A made a remark to soldier B that he saw someone pointing a rifle at their observation post and second, that there was some basis for soldier A’s initial suspicions – a car in fact did stop nearby (it was a taxi) and the passenger did get out for a time and talk to a number of men including the deceased who then moved away.

• Having regard to all these circumstances, and adding the fact that gunmen had been sniping in the area over a period of time before soldier A fired his shot, I cannot say that I am satisfied there is a prima-facie case of criminal negligence amounting to manslaughter on the part of soldier A. There may well be a case of some negligence on his part – but I can only properly be concerned with the question whether this negligence was so reckless as to amount to manslaughter – or putting it another way, that soldier A’s belief that he was in a position of danger by reason of a civilian pointing a rifle at him was formed in a criminally negligent way. (See R–v–Lamb (1967) 2 Q.B. 981)

HET Comment:

  "The inference drawn by the pathologist Dr Carson that the gunshot wounds to Mr McGreanery’s left forearm were indicative of him having been in the ‘aim’ position with a rifle at the time he was shot is feasible, but the HET are not convinced it is the only explanation available. He could have been merely ‘mimicking’ the aiming of a rifle, or simply had raised his forearm for some other reason at that crucial moment, such as placing a cigarette in his mouth or combing/ fixing his hair, for example."

PFC Comment Independent pathologists appointed to the Bloody Sunday Inquiry sharply disagreed with Dr Carson’s findings in a number of autopsies carried out on Bloody Sunday victims. It emerged during the Inquiry that Carson was an officer in the British Army (Territorial Army) when he carried out the Mc Greanery and Bloody Sunday autopsies. Recently the PFC showed the autopsy findings to local doctor Raymond Mc Clean. In his view the original findings in no way supported the view that Mr Mc Greanery was aiming a rifle. The findings were so general as to be meaningless.

 

APPENDIX E

HET Conclusions

Like a number of other cases resulting in fatalities from army action, when the practice of the RMP interviewing the soldiers in isolation from the RUC investigative process was involved, the investigation was rendered ineffective. It cannot be said therefore that the death of Mr McGreanery was properly investigated at the time, even though it was clearly the view of Chief Superintendent Lagan that soldier ‘A’ should have been prosecuted.

The HET concludes, on the basis of the available evidence that:

• Mr McGreanery was shot on Wednesday, September 15, 1971, by a soldier from the 1st Battalion Grenadier Guards at the junction of Eastway, Lonemoor Road and Westland Street, Derry.

• An examination of the original case file reveals that there were clear doubts over the veracity of soldier ‘A’s account yet nothing was done to challenge it or investigate further.

• The prosecution papers that were sent to the Chief Crown Solicitor and then to the Attorney General were lacking in detail and certainly by today’s standard would have been rejected on the basis that insufficient information was available to make an informed decision as to prosecution. [PFC comment - This arises from the failure to put the witnesses accounts to the soldiers]

• The HET has conducted this review with an open mind, and believes it is important to put matters in a historical context. Fairness dictates that an overview of the circumstances should include consideration of the threat level the soldiers believed they were facing. The soldiers were well aware they faced a real threat of being shot at, in fact only a few hours before army Sergeant Martin Carroll was killed in a gun attack at the same observation post. Some 49 soldiers were to die in 1971; the threat therefore was very real.

• On his own admission, soldier ‘A’ was petrified. There can be no doubt that tensions were running high, and all the soldiers at Blighs Lane will have been extremely nervous and edgy. 

• Two of the most contentious issues in this case revolve around whether Mr McGreanery was armed and whether he posed a threat to the soldier(s). On the one hand soldier ‘A’ is adamant that he genuinely thought a rifle was being aimed in his direction and was therefore (he says) fully justified in shooting at the ‘gunman’. Soldier ‘B’, whilst not seeing a weapon, says he heard soldier ‘A’ comment about seeing a rifle immediately prior to the fatal shot being discharged.

• There is an abundance of evidence from the civilian witnesses to say that Mr McGreanery was not armed and therefore posed no threat whatsoever to the soldier(s). Soldier ‘A’ is prepared to concede, on the basis of what the civilian witnesses say, that he was mistaken about the rifle. 

• Mr McGreanery was a mature man of 41 years. It is fair to say that much of the violence and riotous behaviour that took place during this period was attributable to a much younger and more excitable element and/or by those involved with paramilitary organisations. Mr McGreanery was not involved with any such organisation. The review has considered the likelihood that he may have acted foolishly whilst under the influence of alcohol. When he was in the hospital, samples of blood and urine were taken which upon analysis showed that although he had consumed alcohol that evening, the levels in his body were low and in the opinion of the pathologist would have had little effect on his emotional stability. 

• According to the witness Eamon Shiels, Mr McGreanery was wearing a light coloured shirt on the evening he was shot. The police at the hospital seized Mr McGreanery’s clothing but unfortunately they did not itemise what they took possession of, so it is impossible to say exactly what he was wearing at the time. Of course, if he was not wearing any outer clothing it would have been very difficult for him to carry a rifle of any description for any length of time without it being seen by the soldiers. The evidence of soldier ‘A’ is that Mr McGreanery and his friends were walking around the area for quite some time prior to the shooting. It seems to follow therefore that had Mr McGreanery been in possession of a weapon of that nature it would easily have been visible to the soldier beforehand.

• Had Mr McGreanery been armed with a rifle and been intent upon shooting at a soldier, it would have been an extremely foolhardy thing to do from the location at which he himself was ultimately shot. Soldiers had regularly been shot at and either been severely wounded or killed at the observation post in question. It was poorly sited, being overlooked from numerous vantage points from where gunmen could and did mount attacks upon it.

• The most unlikely location from where to mount an attack with a rifle would have been where Mr McGreanery had been standing when he was shot. There was no cover behind which he could have concealed himself, and he would have known he would have been in full view of the soldier(s) throughout the entire period. Several ideal vantage points would have been available to him very nearby had he wished to engage the soldiers with a rifle.

• The witness Mr Campbell mentioned that he, Mr McGreanery and the three other men had climbed over a low wall and had then walked towards the small traffic island in the centre of the road. At that time, Mr McGreanery had his hands in his trouser pockets. Within what must have been only a few seconds, he had been shot dead – with his left forearm raised in front of him.

• None of the civilian witnesses made any mention of Mr McGreanery acting in a provocative way. He was not drunk and as already stated in this report, was a man of mature years, and was therefore unlikely to have been acting in a foolish manner.

• Inferences were drawn by the pathologist during the investigation in 1971 that the gunshot wounds to Mr McGreanery’s left forearm were indicative of him having been in the ‘aim’ position with a rifle at the time he was shot. That itself is feasible, but the HET are not convinced it is the only explanation available. He could have been merely ‘mimicking’ the aiming of a rifle, although that would have been an extremely reckless thing to do, or he could simply have raised his forearm for some other reason at that crucial moment, such as placing a cigarette in his mouth, or fixing his hair, for example.

Thirty-eight years later, the soldier still maintains his original account of events during that evening. He does accept however, that he made a mistake, albeit an honest one. The reality is that we can never know conclusively why Mr McGreanery’s left forearm was flexed at the elbow and held up in front of the chest when he was killed, but it is the view of the HET that he was not pointing a rifle at the soldier at the time. He was not involved with any paramilitary organisation, he was not carrying a firearm of any description, and he posed no threat to the soldiers at the observation post.

Given the passage of time, there are no further lines of enquiry or investigative opportunities open to the HET to pursue in respect of Mr McGreanery’s death.