HET report into the death of William McKavanagh

Background: There was a security operation taking place in the Markets area at the time. Billy, his brother Patrick and their cousin Teddy were walking along Catherine Street heading towards home. They had picked up items that had been looted and left lying on the street. When they saw soldiers they dropped the items and ran. Billy was shot in the back from close range as he ran away. The HET report found that he did not pose any threat whatsoever when he was shot.

Due to the policies that were in place at the time no effective investigation was carried out.*(see A below)

Following Billy’s killing his body, accompanied by his brother and cousin remained in the area until daylight. They had no complaints about the behaviour of the soldiers guarding them and received humane treatment.

However, when an APC (armoured personnel carrier) arrived carrying a different group of soldiers the body of Billy was thrown into it. The HET report, quoting from a statement made by Teddy states

“The soldiers from the APC ran into a house where Patrick and Teddy were having a cup of tea, grabbed Teddy and Patrick by the hair and pulled them into the street. They opened the back of the APC and threw them into it. The soldiers then verbally and physically assaulted them. They were pistol whipped and beaten with rifle butts. After being taken into custody they were hooded and were then further beaten with batons before being handed over to the police.”**(see B below)

The HET report sets out the circumstances of Billy's death clearly, and the family hope, as do the HET that it will lead to an apology at government level.

There is a precedent for this in other HET cases.

HET Conclusions

“Billy was shot and killed by soldier A of the 1st Battalion, the Royal Green Jackets in the markets area of Belfast on Wednesday, August 11, 1971.

He was not associated with any terrorist organisation and was not armed with a weapon when he was shot. He posed no threat whatsoever to the security forces.

The bullet fired by soldier A struck Billy in the middle of his back between the shoulder blades. The pathologist said that he had died as result of a ‘Bullet wound of spine and lung’.

There is no doubt the situation in Belfast was extremely tense. The introduction of internment without trial two days previously, and the spiralling violence that went with it made a highly charged situation even worse.

The Official IRA had taken over the Inglis bakery in Eliza Street and had taken a number of vehicles from the bakery to build barricades across key routes to restrict the movements of the security forces in the markets area and also to deter incursions by militant loyalists.

The military response to the takeover of the bakery was to surround it from a distance and then to close in until the area had been retaken.

The soldiers had been briefed to expect IRA patrols and lookouts to be active in the area.

Property had been looted from commercial premises and much of if had been strewn across the street. Billy, Patrick and Teddy had picked up some of the discarded items, including a pair of waders and a rivet gun.

They were walking along Catherine Street with the stolen property when they were confronted by the soldiers.

The three of them no doubt panicked when they saw the soldiers because stolen property in their possession. They turned and ran away from them back along Catherine Street.

Some of the army patrol claimed that an explosive device was thrown towards them, possibly by a fourth man. There was no evidence that such a device had been thrown when the area was later examined by the RUC. The identity of the fourth man, if he existed, remains a mystery.

When interviewed by the RMP /SIB soon offer the shooting, soldier A said he thought the men were terrorists and that one of them had what looked like a rifle. He said that he "took one aimed shot at the man and that he hit him”. When interviewed by the HET in 2010, he said that he thought the man he had shot had been carrying a Thompson sub machine gun.

Billy had been shot, soldier A arranged for a medical orderly to help, but unfortunately he could do nothing to save him. Patrick was able to say a prayer over him.

A particularly contentious issue is who had the rivet gun. Soldier A is adamant that he fired at and hit the person who had it. Billy was shot and killed ‘close to the junction with Catherine Street and Cromac Street. Soldier's B and C said that after the shooting they saw the rivet gun and some other property halfway down Catherine Street. DS Davidson confirmed in his report that the stolen property, including the rivet gun had been found at the location. There is no record within the available case papers of the rivet gun and the box of rivets being examined for fingerprints. Such an examination might have gone some way towards establishing who had them.

Patrick was adamant that he had the rivet gun and not Billy. He gave evidence at the inquest to that effect. A family member, Mr Oliver Morris has told the HET he was present at the inquest and that Patrick's evidence was not challenged.

The HET does not believe that Billy had the rivet gun when he was shot by soldier A. If correct, then it follows that soldier A must have shot the wrong man. This scenario was put to the former soldier by the HET during interview.  He remained adamant though that he fired at, and hit the man who had the rivet gun.  The HET strongly believes he is mistaken.

Soldier A maintained he fired at someone he perceived to be a gunman and that he therefore had acted in self-defence, and by implication had acted within the army rules of engagement. In law, once this defence is raised, the onus is on the prosecution to disprove it.

There remains no evidence, despite this review, to counter his assertion that in his mind, at that crucial moment, he genuinely thought he was under immediate threat of attack and that he did what he did to protect himself or his colleagues. Because of the lack of an effective investigation at the time, due to the policies that were in place and which have already been discussed in This report, it is not possible now to judge fairly whether soldier A acted within the bounds of the yellow card. Those guidelines did not carry the force of the law in any event, and nothing contained within them affected an individual’s right to act in self defence under common or criminal law.

Soldier A has been traced and interviewed by the HET. Although there are inconsistencies between what he said at the time and what he told the HET, he still maintained that he only shot Billy because he thought he had a weapon. Soldier A maintains that his response had been within the guidelines of the yellow card and he was therefore justified in taking the action he did. He added that he regretted he had shot Billy but stressed that he honestly and genuinely believed he had been armed with a firearm. Soldier A asked the HET to apologise to Billy's family on his behalf.

The RUC investigation into Billy's death was rendered ineffective as a result of the flawed investigative policy that had been agreed between the military and the chief constable in the early 1970s, whereby the RMP interviewed soldiers in isolation from the RUC investigative process. There were clear inconsistencies in the evidence of civilian and military witnesses and they were never challenged. The l-IET believes they should have been.

There is no doubt that Patrick and Teddy were badly beaten by the soldiers who took them to Hastings Street barracks. Soldier A has told the HET that the pair had received severe facial injuries between the time he last saw them at the scene and when he saw them later at the army barracks. The HET has not found any RUC documentation about the injuries Patrick and Teddy received and it would appear therefore that no investigation into the assaults took place.

Billy's death was an absolute tragedy that should not have happened. He was an innocent man who nothing more than pick up a pair of waders that had been stolen by someone else, and then ran away when confronted by the army.

It is our hope that this report sets out the circumstances of Billy's death clearly, and will allow for the consideration of on apology at government level. There is a precedent for this in other HET cases.

Billy's family deserve no less.”

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*A

In 1970, the general officer commanding (GOC) of the army in Northern Ireland reached an agreement with the chief constable of the RUC that the RMP/SIB would be responsible for interviewing soldiers who were involved in fatal shooting incidents.

The RUC were responsible for conducting all other aspects of the investigation, including dealing with civilian witnesses, forensics, the preparation of files for inquests and potential prosecutions. A force policy at the time directed that the RUC should forward all evidence, including civilian witness statements to the RMP/SIB investigators prior to the interviews with soldiers.

However, this policy was not followed.

The HET has said that

“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. 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. The HET has said that “because of the lack of an effective investigation at the time, due to policies that were in place, and which have already been discussed in this report, it is not possible now to judge fairly whether soldier A acted within the bounds of the yellow card.”

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 madeagainst 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.

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, by the standards applicable at the time, no effective investigation had taken place in such circumstances.

  ** B

The HET comments that “Patrick was examined on Monday August 16th, 1971 by a medical consultant, Conor Gilligan, who stated the following:

‘As a result of my examination, I have come to the conclusion that this man has been struck repeatedly by a blunt type weapon, and with considerable force, the pattern of injury in each site is similar, except for that on the right thigh. The bruising is very extensive and the break in the skin could have been caused by an instrument or weapon with a sharp point. There is objective evidence that he was struck repeatedly over different parts of the head and face. Numerous further blows have caused injuries to shoulders, scapular area, arms and elbows, chest and lower limbs. The injuries noted are consistent with the injuries given”

Soldier A (the soldier who was guarding Patrick and Teddy) was traced by the HET and interviewed. The report states “He explained that he went to the police station to be photographed with the people he had arrested ( as was the policy of the time) and that when he saw them their facial injuries were so bad he would not have been able to recognise them had they not been identified to him. They had been uninjured when he last saw them at the scene of Billy’s shooting. The photographs have not been recovered by the HET”