BLOODY SUNDAY INQUIRY Week 118

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7 - 16 JUNE 2004

JUNE HEARINGS

The primary purpose of the June 2004 hearings was to consider arguments from lawyers representing the various interested parties.  However in addition the Inquiry also heard evidence from two final witnesses: Daniel McGilloway and Brendan Duddy.

Summary of Hearings

Monday                7             June 2004         Submissions

Tuesday                8             June 2004         Submissions

Wednesday          9            June 2004         Submissions

Monday                 14         June 2004          Submissions, Daniel McGilloway

Wednesday          16         June 2004          Submissions, Brendan Duddy

A full transcript of the proceedings is available at www.bloody-sunday-inquiry.org

Numbers in square brackets [] refer to the code given to a particular document by the Inquiry.  These also appear on the BSI website.

Schedule of Lawyers and Interested Parties 

Many other barristers and solicitors also represent the various interested parties but only those who spoke at these hearings are listed above.

INTRODUCTION

The Inquiry finished hearing oral evidence in February 2004 (although two additional witnesses were heard in Week 119).  Since then lawyers for the interested parties (i.e. the families of the deceased and wounded, the military, etc.) have filed final submissions and replies to other parties’ submissions.  These run to many thousands of pages and will appear on the Inquiry’s website.  The Inquiry sat in June 2004 to hear from the parties’ barristers on matters where the Tribunal required clarification or further information.

This report details the oral submissions made to the Tribunal as a result of its questions to the lawyers representing the interested parties.  Each team of lawyers was given an opportunity to address the Tribunal on any matter they felt required further elaboration.  They were also asked to specifically address a series of issues/questions circulated in the Inquiry’s letter to the parties of 28 May 2004.  This report adopts the framework of that letter and the oral submissions are therefore summarised below by reference to particular issues.

The evidence of Daniel McGilloway and Brendan Duddy appears at the end of the report.

SUBMISSIONS

Standard of Proof

Counsel to the Inquiry

Christopher Clarke QC, counsel to the Inquiry, began the hearings by giving his own response to submissions made, principally by those representing many of the military witnesses (specifically the Lawton team), that the Tribunal should not make any findings which implied criminal misconduct unless it is satisfied as to what happened to a criminal standard of proof.

Mr. Clarke said that since the Tribunal is not a court it was not bound to operate as a criminal court.  It was set up by the Secretary of State to inquire into the events that occurred on 30 January 1972 and that in doing so the Secretary of State and Parliament must have foreseen the inevitable difficulties associated with examining events which occurred some 30 years ago.  Mr. Clarke’s view was that the Tribunal was entitled to reach such conclusions as it considers appropriate and in so doing it should say as to the degree of assuredness with which it reached those conclusions.  It was entirely within the Tribunal’s remit to conclude some matters beyond doubt (i.e. to a criminal standard) but to say other conclusions were probabilities or merely likely.  Whilst it should exercise caution in coming to conclusions which it could only say amounted to possibilities it must have been within the contemplation of Parliament and the Secretary of State that this could occur.  Mr. Clarke pointed out that were Tribunal to be restricted to only publishing such findings about which it could be sure (criminal standard of proof) then the outcome would be most unsatisfactory.  The people of Derry, Secretary of State and taxpayers would rightly question the purpose of an Inquiry that resulted in a report which said it had reached views as to what may have happened but since there was insufficient proof it could not or would not say what those views were.  Other Tribunals have adopted various approaches to the standard of proof required to assert their conclusions and this demonstrated that it was a matter for the Tribunal itself to determine what standard to adopt according to the particular issue it was seeking to resolve.

Arthur Harvey QC, representing many of the families of the deceased and injured, adopted Mr. Clarke’s submission on standard of proof.

Sir Louis Blom-Cooper, acting on behalf of the Northern Ireland Civil Rights Association (NICRA), also accepted Mr. Clarke’s submissions.  He referred the Tribunal to two authorities: Mahon v Air New Zealand PC 1984 (AC 808) and Lichniak 2003 (1 AC 903).  He contended the comments of Lord Diplock and Lord Bingham established that standards of proof applicable to civil or criminal proceedings were not relevant to an administrative tribunal.

Mr. Lloyd-Jones QC, representing many of the military witnesses (Lawton Team) made lengthy submissions regarding the standard of proof to be adopted.  He relied on authorities (Re H per Nicholls, L; B v Chief Constable of Avon and Somerset; Gough v Chief Constable of Derbyshire CA; and the House of Lords in case of McCann, per Steyn, L and Hope, L.) [full references for the authorities were not given] for the proposition that in so far as any finding might imply an individual had committed a criminal offence then such a finding could only be made if the Tribunal were satisfied to the criminal standard of proof.  Only if there was evidence sufficient to satisfy the Tribunal that it is sure should it declare that it believed a named individual had committed an offence.  In so far as allegations concern conduct less than criminal then the appropriate standard was a sliding scale where the minimum was the civil standard of ‘balance of probabilities’ and the higher end was similar to the criminal ‘beyond reasonable doubt’.

Mr. Toohey asked as to the relevance of authorities concerning anti-social behaviour orders and the like to a Tribunal such as this created under the 1921 Tribunal of Inquiries Act.  Mr. Lloyd-Jones then referred to a series of decisions relating to Inquest proceedings conducted by Coroners Court which he said where analogous in so far as the Coroner is tasked to determine facts in an inquisitorial manner, without parties.  There the courts have consistently said that so far as a finding of suicide or unlawful killing is concerned the coroner’s jury must be satisfied beyond reasonable doubt (Ex Parte Grey, per Watkins, LJ; McCurbin, per Woolf, LJ).

Mr. Lloyd-Jones distinguished the authority referred to by Sir Louis Blom-Cooper (Mahon v Air New Zealand) on the basis that there Lord Diplock found there was no evidential basis to support the earlier tribunal’s finding of a conspiracy by airline directors to lie to it.  Mr. Lloyd-Jones argued therefore that Lord Diplock’s comments regarding natural justice were not asserting that civil or criminal standards of proof were inappropriate to tribunals of inquiry.  He also relied on the approaches Lord Scarman and Mr. Justice McPherson adopted in their respective inquiries in 1972 (Northern Ireland shootings and rioting) and 1999 (Stephen Lawrence murder investigation).  He said the reference to ‘probable’ criminal conduct in the McPherson report was simply an error.  He also referred to Michael Mansfield QC’s replies [FR2.16] in this Inquiry where Mr. Mansfield accepts the criminal standard is the appropriate one for allegations of criminal conduct.

Mr. Lloyd-Jones said Christopher Clarke QC was wrong to assert that since the Tribunal was not a court it could depart from established principals of law.  Any finding of criminal conduct he said would have extremely serious consequences for his clients.  It was wrong to suppose just because there might be a paucity of evidence the Tribunal should lower the standard of proof required to make a finding.  The passage of time was not a sound basis to avoid principles of fairness.  If there was insufficient evidence to support a finding to the requisite standard then no such finding should be made.  If the Tribunal were unable to discharge its duty to establish the truth then it must say so.

There then followed a discussion between the Tribunal and Mr. Lloyd-Jones regarding the findings it could make to a lesser standard.  Mr. Lloyd-Jones submitted that reasonable doubt did not preclude the Tribunal from finding that a particular soldier had shot a particular individual so long as that in itself did not necessarily imply the shooting was unjustified and therefore unlawful.  However he also contended that whilst the Tribunal would require the same standard of proof to conclude a civilian had committed a crime, e.g. was in possession of a gun, the same was not true when considering the veracity of a soldier’s belief that the person he shot at had a weapon.  Mr. Lloyd-Jones claimed it was possible to conclude a soldier may have been right in believing a civilian was armed even if not satisfied beyond reasonable doubt.  He suggested although this might imply a criminal offence had been committed by a civilian the Tribunal was not finding that to be the case if it suggested a soldier’s belief may have been correct.  Lord Saville and Mr. Toohey said this was contradictory.

Gerard Elias QC, representing many of the military witnesses (Aitken Team), said this particular contradiction would not arise in practice since the Tribunal could report its findings regarding the soldiers’ claims to have fired at armed civilians without stating which civilians were concerned.  Christopher Clarke QC said this was absurd since the whole purpose was to determine issues of fact and the Tribunal could not on the one hand say it believed a soldier in relation to a civilian being armed yet avoid identifying or commenting on the individual concerned.

Mr. Elias referred to the North Wales Tribunal Report into allegations of sexual abuse which he said was misquoted by Madden & Finucane in their replies [FR1.313].  They referred to its findings of criminal conduct but they did not mention that that tribunal only found this to be so in instances where people were already convicted in criminal proceedings.  The report specifically states that the tribunal avoided making conclusions on other allegations of criminality because they were so long ago and there was no corroborating evidence.

Sir Alan Green QC and Rosemund Horwood-Smart QC, also representing military witnesses, adopted Mr. Lloyd-Jones and Mr. Elias’ submissions regarding standard of proof.  Sir Alan added that the question regarding a soldier’s belief in relation to self-defence was one of honesty not reasonableness.

Mr. Clarke replied.  He said the authorities regarding civil proceedings were not analogous and even those concerning coroners’ inquests were distinguishable.  Coroner’s verdicts are restricted to specific findings (e.g. suicide, unlawfully killing, open, etc.) and these findings are not accompanied by reasons.  It was because coroner’s verdicts were unreasoned that the criminal standard had to apply.  Mr. Clarke said the genesis of this Inquiry was entirely different to a coroner’s inquest.  Parliament intended that the Tribunal determine what happened on Bloody Sunday.  The Secretary of State did not order a police investigation to consider possible criminal proceedings, he appointed the Tribunal to tell the world what had happened.  Such unfairness as might result from a finding to a lesser standard of proof had to be weighed against fairness to the families of the deceased and injured to know what occurred.

Lord Gifford QC, representing the family of James Wray, said that he agreed with Christopher Clarke’s submissions.  He said that since Mr. Lloyd-Jones’ clients had anonymity the issue of prejudice did not arise.  Only if a soldier were found to the criminal standard to have acted improperly would his name be revealed.  Consequently the Tribunal was free to make findings against unnamed soldiers to a lesser standard.  Since the soldiers had anonymity the issue of fairness had to be weighed against the public interest to determine the truth.

Michael Mansfield QC, representing the Nash, McGuigan and Gillespie families, submitted that the Inquiry was neither a criminal nor civil proceeding but that the civil sliding scale standard was appropriate.  This meant the Tribunal could make findings where it was only satisfied that something was more likely than not, i.e. on the balance of probabilities.  However where it came to serious allegations the standard rises and in the case of serious criminal allegations the Tribunal could only make an adverse finding if it were sure.  It could not therefore find that anyone was probably guilty of murder.  However it could say X probably shot Y and that there was no objective or subjective justification for doing so.  Lord Saville thought this a semantic distinction.  He did not see why they could not say X probably murdered Y.   Mr. Mansfield said it was also possible to conclude an unidentified soldier was guilty of murder, i.e. one of a defined group or simply a member of Support Company.

Joint Enterprise

Mr. Harvey conceded the references in his submissions to joint enterprise were inappropriate for this Tribunal.  His clients do allege criminal conduct on the part of soldiers but the use of the term was not helpful.

History of Violence in Derry

Mr. Harvey said the Tribunal could only derive limited assistance from the information concerning the history of violence in Derry prior to Bloody Sunday as outlined by the Aitken Team (representing many of the military witnesses).  This was because 1 Para were not resident in Derry and their knowledge of the city came only from impressions which had filtered through to them.

Sir Louis Blom-Cooper on behalf of NICRA said that whilst he did not disagree with the Aitken Team’s analysis of violence in Derry prior to Bloody Sunday what mattered was General Ford’s perception particularly after his visit to the city on 7 January 1972.  To this end he referred to the minutes of the JSC meeting of 13 January 1972 and General Tuzo’s assertion than no defiance of the ban on processions should be tolerated.

Richard Harvey, making submissions on behalf of the family of James Wray, said that the Aitken Team’s summary was partial in that it was both incomplete and one sided.  It did not reflect the violence from the security forces towards the people of Derry.  He said that the unlawful shooting of Cusack and Beatty on 8 July 1971 changed everything.  This was followed by the introduction of internment without trial on 9 August 1971 when 68 people were detained.  Another 84 were arrested and interned later so that about 1 in 50 of the adult population of the Bogside had been imprisoned without trial.  In addition on 24 July 1971 9 year old Damien Harkin was killed when hit by an army vehicle and on 9 August 4 year old Gary Gormely was also run over.  On 6 August 1971 9 year old Annette Magavagan was shot and on 14 September 1971 Billy McGiven was also shot.  Then on 6 November 1971 Kathleen Thompson was shot whilst banging a dust bin lid.  Later the same month the Inquiry into the Cusack and Beatty killings determined that they were shot without legal justification and the Compton Report found internees had been brutalised.

Unique Problems of Derry

Mr. Harvey was asked by the Tribunal to elaborate on what was meant by the reference in Madden & Finucane’s submissions to the ‘unique problems’ of Derry and what assistance they should derive from this.  Mr. Harvey explained  that Derry had specific issues of political disenfranchisement resulting from the way the city had been historically managed to ensure a Unionist Council even though the majority of residents were and voted Nationalist.  This was why there was an alienated class in Derry willing to fight the Unionist minority dictatorship.  It was the refusal to address this political problem and instead impose a military solution, in the form of the Operation Forecast arrest operation, that led to the events of Bloody Sunday.

Mr. Edwin Glasgow QC, representing many of the military witnesses (Lawton Team), submitted there were no special problems in Derry.

“Certain Measures” - Joint Security Committee (JSC) meeting of 13 January 1972

The Tribunal asked all of the parties to comment on what conclusions it should draw from the reference in the minutes of the JSC meeting of 13 January 1972 to ‘certain measures’ planned for the march in Derry on 30 January 1972.

Arthur Harvey said that this had to be read in conjunction with the General Ford memorandum a few days earlier where he referred to shooting selected ringleaders of the Derry Young Hooligans.  He said certain measures did not necessarily mean an endorsement of Ford’s shooting ringleaders suggestion but the earlier memo demonstrated Ford was concerned by the army’s failure to control rioting in Derry.  It also showed his lack of appreciation of the situation in Derry, such as 8^th Brigade’s lack of troops, and his determination to adopt a more aggressive military solution.  Certain measures did not necessarily mean shooting rioters but it did show a determination to be more aggressive.  This he said was also illustrated by references in the Operation Forecast notes to dispersing the march.  This is repeated by Colonel Dalziel-Payne and even Colonel Wilford in a radio broadcast immediately before 1 Para deployed.  All of which is important for the Tribunal to consider because attitudes of aggression at senior levels were inevitably reflected in less measured and sophisticated ways by soldiers on the ground.  It was inevitable that soldiers would feel that they should be given greater licence to be more forceful and in so doing they believed they could resolve a situation.

Sir Louis said that the Tribunal could properly draw the inference that the measures contemplated were those to facilitate the arrest of ‘hooligans’.  He relied heavily on the next sentence in the minutes, i.e. “a very difficult problem to resolve within the law”.  This reflected General Tuzo’s awareness of the hearing at the High Court in Belfast the day before (12 January 1972) of NICRA’s challenge to the army’s powers of arrest (Hulme v Londonderry Justices).  General Ford resolved the problem by pursuing an unlawful arrest operation.  The army had no lawful authority to arrest anyone on 30 January 1972.

Mr. Bradley, representing many of the military witnesses (Lawton Team), submitted that since the phrase certain measures appeared in a paragraph entitled Schedule of Incidents rather than the paragraph entitled ‘Forthcoming Events’ it was unlikely to be referring to the planned march in Derry.  He also said it was clear General Tuzo was indicating the rioting in Derry had to dealt with within the constraints of the law.

Lord Gifford QC, representing the family of James Wray, said ‘certain measures’ was a reference to the proposals made by General Ford in his earlier memorandum.  He did not contend that the measures, i.e. shooting rioters, were adopted but he said the attitude was revealing.

Mr. Mansfield said ‘certain measures’ had to refer to General Ford’s memo.  This demonstrated the military mindset, even if shooting ringleaders was not authorised.  General Ford used the opportunity of the march to attempt to control the Derry rioters.  The intention was to go in hard and engage in a shooting war if necessary.  Although the JSC meeting was on 13 January 1972, before the march was postponed from 16 January 1972 to 30 January 1972 it was clear General Ford was formulating a policy in relation to the weekly riots.  He then decided to combine his anti-rioter strategy with the policing of the march.  Lord Saville asked why if the intention had been to arrest as many people as possible, irrespective of whether or not they were actually rioting, was the arrest operation not launched earlier than 16:10.  Mr. Mansfield replied it was clear Colonel Wilford did want to launch the operation much earlier but was prevented from doing so by the reluctance of 8 Brigade to give the order to go in.  Separation was never part of the plan.  Brigadier McLellan was dubious about the plan but was forced to allow a non-resident battalion to go in.

Infiltration of NICRA by the IRA

Sir Louis referred the Tribunal to his written responses to the submissions of the military lawyers.  Their suggestion that NICRA was influenced by the IRA was based on a lack of understanding of either the Civil Rights Movement or NICRA’s role in it.

Kevin O’Donovan, representing former members of the Official IRA, submitted that the assertion that NICRA had been infiltrated was merely a bald assertion unsupported by evidence.  The Aitken submissions [FS8.194] say the Official IRA were “no doubt aware of the nature and detail of NICRA’s planning” (for the march) but give no evidence or particulars.  They do not say what inside knowledge is alleged, who had it, when or how it was acquired.  Most importantly they do not say what advantage was taken by the Official IRA as a result.  In his submission it was an assertion without foundation and it should be ignored.

Gerard Elias QC (Aitken Team) said there was no doubt that NICRA had been infiltrated by the Official IRA because it was known Billy Macmillan was on the executive.  He was also the officer commanding the Official IRA in Belfast.  Mr. Elias accused the Official IRA secretly gaining positions of influence within NICRA.  He conceded the majority within NICRA did not know of Mr. MacMillan’s role in the IRA or of Official IRA infiltration.  However he said that two days after a NICRA executive meeting at which Mr. MacMillan was present the Official IRA in Belfast murdered a British soldier (Lost Lives – Corporal Robert Blankey).  He also said the Official IRA’s precise motive for infiltrating NICRA remained unclear.  But claims its relevance was:

it justified the suspicion of NICRA as expressed in some army documents;

it demonstrated why the security forces were concerned by NICRA’s tactic of big public marches during the ban on processions since these were likely to result in violence.  He argued some NICRA events could have been influenced by the Official IRA to create confrontations with the security forces and thereby alienate the people from the army;

it demonstrated that the Official IRA were duplicitous;

the Official IRA knew the plan for the march even though the route was not published in advance, because OIRA 1 fired from a concealed position near to the march and the rioting.  He asked how and why Official IRA snipers came to be where they were.

it explained why the army did not liase with NICRA over policing the march.  There was a daily risk of Official IRA snipers firing on soldiers at barriers.

Perceived Risk

The Tribunal asked the parties to comment as to the risk the army, government and march organisers should have perceived prior to Bloody Sunday and whether these perceptions should have differed.

Arthur Harvey said that so far as the government was concerned the provisions of Article 2 of the European Convention of Human Rights (a government’s duty to protect the life of its citizens) were the appropriate starting point.  It was not just a question of looking back with hindsight but Article 2 requires governments to be aware of risks and to act to avoid them.  Applying such a principal enabled the Tribunal to look back at failures of those who did have responsibilities to have acted differently.  Brigadier McLellan and General Ford should have appreciated that IRA gunfire was a possibility and to have considered the consequences of any army response for innocent civilians on the march.  This meant the arrest operation should have been tightly controlled but it was not.  They ought to have foreseen the risk to civilian life of any army response to gunfire.  These risks should have resulted in an awareness of the dangers of deploying assault troops like 1 Para and a decision to use one of the resident battalions instead.

Sir Louis said he could not comment on the issue of what risk was or should have been perceived by the government but that the risk of violence was not the only risk perceived by the army and NICRA.  He said both the army and NICRA also recognised political risks of being seen to fail; the army in enforcing the ban on marches and NICRA in commanding the support of those in the Civil Rights Movement.  Both were alert to the risks each faced in their exercise of political power.

So far as the risk of violence was concerned NICRA took the calculated risk to proceed with the march on the basis that the best course would be for the army and police to permit the march to proceed to the Guildhall.  This was based on an analysis of the situation which was shared by Chief Superintendent Lagan the chief of police in Derry and with whom NICRA were in contact via Bridget Bond.  It was only on the morning of the march that NICRA became aware of the decision to stop the march from reaching the Guildhall and this was only because people saw barrier 14 being constructed across William Street.  NICRA knew nothing of the army plan to stop the march, mount an arrest operation or deploy paratroopers.  However on realising the march could not get through NICRA re-routed it to Free Derry Corner. Chief Superintendent Lagan, and through him Brigadier McLellan, was advised of this intention by 14:00.

Sir Louis said the army’s failure to communicate its intentions to the organisers of the march was a failure by them to act appropriately “in aid of the civil power” whereas NICRA were in contact with the civil power in the person of Mr. Lagan.  Furthermore the army gave no effect to the order of 19 January 1972 [G0140.0935] that in preventing marches the army should communicate with organisers.  This was never done.

Mr. Glasgow QC, representing many of the military witnesses (Lawton Team), submitted there was no failure on the part of his clients (i.e. General Ford, Brigadier McLellan and Colonel Wilford) to appreciate risks.  He said they foresaw that if the march went ahead young hooligans backed up by gunmen would take over at an early stage.

Mr. Mansfield said his submissions regarding Lord Carver had been misunderstood.  He submitted that the risk of death to civilians was foreseeable and that it had arisen in the minds of the military.  However they overlooked intelligence which showed Civil Rights marches were not disrupted by IRA violence.  They were grossly negligent and failed to exercise their duty of care.  This required that the senior military officers and politicians do nothing to exacerbate the situation regarding the risk to civilians.  The existing policy on banning marches was conditional on not putting civilian lives at risk.  However by embarking on a scoop up operation during the Civil Rights march that policy was abandoned.  This required the highest level of authority.  David Ramsbottom’s evidence confirmed that everyone knew about the plan for a scoop up operation.  The risk was foreseeable.  What is more it was known that the Paras had used excessive force the week before at Magilligan.  This was referred to in Sir Burke Trend’s briefing notes.  It was apparent that the right questions were asked but nothing was done or said by those with the duty of care.  The results were inevitable once the Paras were unleashed.  Lord Carver said he was surprised there were not more casualties.

If IRA activity was inevitable, as Edward Heath said to the Irish PM Jack Lynch after the event, why on earth was an arrest operation launched during a huge Civil Rights march?  The risk was known.  The fact that the Government approved the operation is demonstrated by the fact that there was never any suggestions after it all went wrong that they did not know of the arrest plan.  They never said it was unauthorised.

Barrier 14

The Tribunal asked those representing NICRA to explain the sequence of photographs and video clips annexed to their submissions.

Patrick O’Hanlan, junior counsel for NICRA, illustrated the events from the march reaching the junction of William Street and Rossville Street to the use of the water cannon at barrier 14 by reference to dozens of photographs and the video clips.  He began by showing the line of stewards attempting and failing to persuade everyone to turn south down Rossville Street [EP2.1 and EP22.7].  Although the majority of marchers did go down Rossville Street the wide area of waste ground at the junction made it impossible for the stewards to avoid being outflanked by a breakaway group [P0372, P0373, Video 25 at 2 minutes].  There was a momentary loss of control as a small group ran down William Street followed by some stragglers.

The group initially stopped short of Chamberlain Street at Quinn’s Lane (Macari’s Lane) [EP4.9, EP4.10].  A few missile were thrown towards barrier 14 but at first the crowd did not confront the soldiers at the barrier.  Stewards arrived and formed a line between the crowd and the barrier still west of Chamberlain Street some distance from the soldiers [EP4.12, EP4.13].  After some time the Civil Rights banner, which had been on the lorry which turned down Rossville Street, arrived in William Street whilst the crowd remained west of Chamberlain Street [EP4.14].  The number of stewards constantly increased and they regained control.  The crowd edged towards Chamberlain Street [EP4.15, P1033, P1034] with stewards trying to halt it.  Stewards attempted to control those intent on confrontation [P1105, EP5.8].  Eventually stewards linked arms and formed a line across part of William Street [EP5.5, EP4.17, P1035, P0888].

The crowd gradually approached the barrier and some missiles were thrown as Inspector Junkin announced that the march will not be allowed to proceed [P1028, P1040, P1038, P1039].  On television footage [Video 48 at 1 minute 20 seconds] Ivor McElhinney is seen to approach the barrier to speak to the Inspector.  There is still open ground between the crowd and the barrier [EP4.21, P0889].  Although missiles were thrown when the announcement was made, Inspector Junkin was hit, there still follows a period of calm in which the crowd, soldiers and stewards all appear relaxed in their body language [P0373, P375.3, P375.4].  Some members of the crowd, which has now reached the barrier are seen pointing at the soldiers [P375.5, P841].  Still the stewards can be seen between the crowd and the barrier with their backs to the soldiers exercising some control [P890, P891].  Finally the Civil Rights banner is pictured collapsing as the water cannon approaches from behind the barrier [P0583, EP4.25].

As the water cannon sprays the crowd, timed at 15:44, people can be seen talking and not rioting [P587, P586, P585].  Relatively few stones can be seen on the ground behind the barrier [P0400] and the scene is comparable to that in an earlier photograph [P1040] when Inspector Jurkin made his announcement (timed at 15:39).  Even on the brief edited clip of television footage [Video 48 at 1 minute 35 seconds] there is no sign of any stone throwing and the officer commanding barrier 14 is seen to walk away past the camera.  As the water cannon forces the packed crowd to run [P395, P394, P393] James Wray is seen sitting in front of the barrier [P0787].

On the basis of the above evidence NICRA submit that the use of the water cannon was precipitous and ended any control stewards could exercise.  Those dispersed by it included those who then went south via Chamberlain Street to Free Derry Corner and others who later rioted at barriers 14 and 12.  Even at barrier 12 soldiers are shown firing CS gas towards a small group on the waste ground carrying a banner  [Video 25 at 2 minutes].  Mr. O’Hanlon said the Aitken Team’s closing submissions misinterpret evidence regarding events at barrier 14 to suggest there was a riot going on before the water cannon was deployed.  In fact the use of the water cannon ended the only effective policing of the crowd which was up to that point being done by stewards.  The army then fired 65 CS gas cartridges and 64 CS gas grenades.  The army was following General Ford’s decree that the march should be stopped at all costs.  This was how they intended “the battle would go” [G0082A.0521.0001].  There was no attempt at containment to permit the march to make its way to Free Derry Corner.  General Ford wanted it stopped.  The barriers were there to keep the public out and let the Paras in.

Gerard Elias QC for the Aitken Team said they did not accept Mr. O’Hanlan’s analysis which, he said, was undermined by Colonel Tugwell’s photographs.

1 Para’s Orders

The Tribunal asked the parties to comment on what orders it should conclude were communicated to 1 Para before they deployed.

Mr. Harvey said the only possibilities were that there was no order communicated at all or that the order was that as detailed in the 8 Brigade Log.  He said it was highly probable that it was the latter, i.e. an order restricting 1 Para to deploying only one company, only to the area of William Street and Rossville Street, that they were to be on foot (not in vehicles) and that they were not to enter the Bogside.  The order was breached in every respect when Support Company drove down Rossville Street.  It was Support Company who were responsible for all the army gunfire and therefore the deaths.  Mr. Hoyt asked did that not mean that the last minute decision (presumably by Colonel Wilford) to deploy Support Company (in addition to the authorised deployment of C Company through barrier 14) was the totality of the responsibility for what happened.  Mr. Harvey replied it was not because the entire plan was inadequate.

Mr. Bradley, (Lawton Team), submitted that Brigadier McLellan’s evidence to the Widgery Tribunal should be preferred over his evidence to this Inquiry in relation to the order he passed, via the Brigade Major (Major Steele).  He claimed the order was given over the secure radio net and it was the order reflected in the Brigade and 1 Para Logs.  He said the order did not limit either the number of Companies to be deployed nor the area of operation.  These were matters for Colonel Wilford as the commander on the ground.  He said there was no contravention of the order by 1 Para although it was accepted that Sergeant O’s pig went further south than was intended.

Lord Gifford said it was the lack of clarity in General Ford’s orders for Operation Forecast that created the problem because Colonel Wilford considered himself responsible to Ford rather than Brigadier McLellan.  The Operation Forecast orders were too wide, inviting Colonel Wilford to invade the Bogside.  Colonel Wilford and General Ford acted together and Colonel Wilford did not observe Brigadier McLellan’s restrictions.

Support Company Armed with SLRs not Batons

The Tribunal asked the parties to comment on why it was that Support Company deployed armed with rifles and only a few baton guns whereas C Company deployed with batons, baton guns and only a few rifles.

Mr. Harvey conceded that the shot which hit the drainpipe on the Presbyterian Church above where Support Company were waiting may have been the reason for them deploying with rifles.  However he said the evidence also suggested they had cocked their rifles before debussing in contravention of the Yellow Card and had fired rubber bullets before they debussed.  All of which suggested the NCOs and officers were not in control.  That Support Company deployed with rifles cocked as if going into war was completely incompatible with their having been deployed in a purported arrest operation.

Mr. Bradley relied on the evidence of Sergeant O to explain why members of motor platoon changed their batons for SLRs after the shot struck the drainpipe on the Presbyterian Church.  He said 5 members of C Company also swapped batons for rifles after they heard gunfire or saw gunmen after deploying through barrier 14.

Civilian Reaction to Paratroopers

The Tribunal asked the parties to comment on what if anything it should conclude from the fact that some civilians in Derry stood and confronted the Paras whereas in Belfast they turned and ran.

In reply to a direct question from Lord Saville Mr. Harvey said that there was no evidence before the Tribunal to suggest any soldiers believed any civilian was armed because he did not run away.  Mr. Harvey said the only significance which might be attached to the fact that some in Derry stood their ground was in relation to General Ford’s comment that had they run away they would not have been shot.

Mr. Glasgow (Lawton Team), submitted that there was evidence that civilians confronted soldiers on the waste ground and others charged from the rubble barricade.  He claimed that although this could not justify a trained soldier believing those rioting were armed with firearms it did create confusion and increase the likelihood of mistake.  He said this contrasted with the simplification which he said many still believed, i.e. that the soldiers fired on a fleeing crowd.

Accountability of Soldiers

The Tribunal asked a series of questions directed at those representing the military witnesses concerning the continued uncertainty as to who shot the deceased and wounded.

In addressing these questions Mr. Glasgow began by saying it was unfair to suggest he and his team had “engaged in a strategy of obfuscation” [as alleged by those representing Michael Bridge and Michael Bradley at FR5.1].  He said the criticism was wholly unjustified and was resented.  He added it came from a firm who had engaged Paul Mahon whose research he alleged had been systematically withheld from the Inquiry.  Mr. Glasgow claimed he could only represent those from whom he took his instructions and denied he or they could provide explanations other than the evidence they had given.  He said he had not attempted to make that evidence fit to account for matters which the Tribunal was tasked to investigate.  He said it was a matter for the Tribunal as to whether it accepted the evidence of his clients but he submitted that they had told the truth.  They had given accounts and taken responsibility for their action but some were unable to say whether or not the people they shot were or were not one of the identified casualties.  He said it was not surprising in the circumstances that none of the soldiers who claim to have fired at men crawling from the rubble barricade could say whether or not they hit Kevin McElhinney.  He added that he was reluctant to depart from the written form of his submissions since they had been approved in detail by his many clients.  If he tried to explain them whilst on his feet there was a risk that he would not fairly reflect his instructions.

In direct response to the Tribunal’s question Mr. Glasgow said it was not accepted that there was evidence to support the contention that four of those shot on Bloody Sunday were shot by soldiers of 1 Para (1^st Battalion Parachute Regiment).  ‘Red’ Mickey Doherty was known to have been shot by Soldier AA.  So far as those shot in the Bogside are concerned (i.e. in Sectors 1 to 5) he claimed the evidence did not allow the Tribunal to say three were shot by 1 Para.  Regarding Peggy Deery he said the timing of her shooting and the discrepancies in the civilian evidence as to who shot her suggested she may not have been shot by a soldier [written submission at FS7.1553 and FR7.483].  He also relied on the evidence of Kieran Gill to support the soldiers’ claim that Alexander Nash was shot by a civilian gunman from the doorway of Block 1 of the Rossville Flats.  Finally he relied on expert evidence to contend Patrick McDaid was not shot by an army rubber bullet [FS7.1611 and FR7.497].  He submitted therefore that the Tribunal cannot conclude who shot Peggy Deery, it should not conclude any soldier shot Peggy Deery, Alexander Nash or Patrick McDaid.  He said it should conclude Mr. Nash was shot by an IRA gunman but only say who if it was sure.

Mr. Glasgow argued that the fact that Mickey Doherty was now known to have been shot on Bloody Sunday and this fact had been known but not disclosed to the Inquiry demonstrated that truthful accounts of the shootings had not been given.  He claimed a number of people must have known of other casualties. 

Mr. Glasgow declined to offer any further assistance to the Tribunal as to which soldier shot which victim.  He said it was not his clients’ responsibility to explain what had happened.  He said he had looked at the evidence of each soldier and the position of each victim.  It was proper for him to submit a soldier did not shoot a victim where the evidence suggested that was the case.  He contended that the soldiers accounts of their firing where honest although some may be mistaken.  If it were the case that it was not possible to explain even how most of the casualties where shot then that was regrettable but not surprising.  He said he could not make submissions on behalf of the army, he did not represent the army.

In answer to questions from Lord Saville and Mr. Toohey Mr. Glasgow first disputed that no explanation had been given for the shootings.  He said his clients had given explanations for what they did.  That did not mean there was no explanation.  However when pressed by Lord Saville he conceded that it was right that no explanation has been given as to how the majority of those who died met their fate.

Finally Mr. Glasgow contended the army’s claim that only 108 live rounds were fired should be accepted by the Tribunal despite evidence of two soldiers (INQ 449 and David Longstaff) who claim to have fired but are not recorded as having done so.  He said the two soldiers were wrong.

Shooting from the City Walls

The Tribunal asked the parties to comment on whether or not any now contended that any of those who had been shot was shot from the city walls.

Mr. Harvey said none of his clients now claimed any of those shot or injured were shot by anyone other than Support Company.

Kieran Mallon added on behalf of the Nash family that they do not contend either Alexander Nash or William Nash was shot from the city walls.

Sector 3 – Bullet Holes in window in Block 1 of the Rossville Flats

The Tribunal asked the parties to comment on the likely cause of the 6 bullet holes in the window to the flat occupied by the photographer Fulvio Grimaldi.

Mr. Harvey said it was his contention that the shots were those fired by Soldiers F and G.  Although Soldiers C and D also claim to have fired at the window it was probable that they were fired by F and G from Rossville Street and that they were amongst the last shots fired by the army in the Bogside.

Mr. Glasgow agreed the holes in the window must have been caused by the 7 shots fired by Soldiers F and G and or the 5 fired by Soldiers C and D.  However he added that the absence of any photographs showing damage to any other window in Block 1 did not mean that there was no other gunman or window hit there.

Major Loden’s Order to Cease firing

The Tribunal asked the parties to comment on what shots can be heard on the television footage before and after Major Loden is heard to order a cease fire.

Mr. Harvey submitted several outgoing shots from the army can be heard then Major Loden is heard to shout “cease firing”.  More shots can then be heard and Major Loden shouts “do not fire back for the moment unless you have an identified target”.  Mr. Harvey said these shots were consistent with the shots Soldiers F and G admitted firing at the window in Block 1 and that this was after the dead and wounded had all been shot.

Mr. Glasgow accepted the voice on the video was probably that of Major Loden but said there were two distinct clips which although obviously close in time could appear in the incorrect sequence.  He accepted the noises that could be heard were those of SLRs (army rifles) being fired but since the sequence of the video clips was unclear one could not say whether or not they were before or after the ceasefire order was given.  He said the shots were likely to be some of those fired by Soldiers C, D, F and G at Block 1 towards the end of the shooting.

Stone Throwing in Glenfada Park North

The Tribunal asked the parties to comment on what it should conclude regarding the contradictory evidence of stone throwing at soldiers in Glenfada Park North.

Seamus Tracey QC answered this question on behalf of Madden & Finucane’s clients.  He said the only evidence of any stone throwing in Glenfada Park North came from soldiers or two civilian witnesses.  The evidence of the soldiers was in his submission wholly unreliable.  Furthermore the overwhelming body of civilian evidence, as detailed in Madden & Finucane’s written submissions [FR1.595, paragraph 5.7.4.9.6], suggested no stones were thrown because the Paras began firing as soon as they entered Glenfada Park North.  The only exceptions were Danny Gillespie (one of the wounded, represented by McDermott & McGurk) and PIRA 25.  Lord Saville interjected to say the reference to stone throwing in Glenfada Park had appeared in PIRA 25’s draft Evershed’s statement but was removed from the final draft.  In correspondence Mr. Peter Madden of Madden & Finucane had said that the issue of stone throwing in Glenfada Park was uncontroversial.  Lord Saville wanted to clarify if Madden & Finucane were contending the issue is disputed.  Mr. Tracey confirmed it was and relied on the absence of any debris on the ground in photograph P0439 (taken after Joe Mahon, William McKinney and James Wray were shot) to demonstrate nothing was thrown.

Mr. Mallon said on behalf of Mr. Gillespie that his client had never said he saw anything thrown but that he had seen 2 youths enter Glenfada Park North from Abbey Park carrying broken pieces of flagstone.

Mr. Glasgow accepted there was no evidence to suggest stones were thrown in Glenfada Park North.  His written submissions [FR7.748] were directed at showing what happened to rebut the claim that soldiers fired on an isolated group of three men who were running away.

Sector 5 – the Shooting of Patrick Campbell, Danny McGowan, Patrick Doherty and Bernard McGuigan

The Tribunal asked the parties to comment on the events behind Block 2 of the Rossville Flats and in particular: the order in which Patrick Campbell, Danny McGowan, Patrick Doherty and Bernard McGuigan were shot; how many soldiers were involved in the shootings and how each was shot.

Mr. Harvey said the events in Sector 5 were hard to piece together but that the sequence could be illustrated by reference to photographs and civilian evidence.  The first relevant photograph was that showing Hugh Gilmore lying behind Block 1 being tended to by Danny McGowan [P0709].  Bernard McGuigan can also be seen near the telephone box.  The end of the sequence of photographs shows Patrick Doherty lying dead with Patrick Walsh in close attendance [P1721].  When considered in conjunction with the civilian evidence it was possible to establish that Patrick Campbell was shot first, followed by Danny McGowan (who had gone to help him), followed by Patrick Doherty and finally Bernard McGuigan.  This sequence is suggested by the fact that Mr. McGowan makes no mention of seeing Patrick Doherty who, had he been shot at the time, would have been lying in his path as he helped Patrick Campbell towards Joseph Place.  The sequence also accords with evidence suggesting Mr. McGuigan heard Mr. Doherty calling for help, having been shot, and left the safety of Block 1 to go and assist when he was shot.  Mr. Walsh’s evidence was also that he saw Patrick Campbell and Danny McGowan shot before Patrick Doherty was shot.

Mr. Harvey said that although it was theoretically possible Patrick Campbell or Bernard McGuigan could have been shot by Soldier S, through the gap between Blocks 1 and 2 it was almost certain all four men were shot by soldiers from the entrance to Glenfada Park North.  Since Soldier F is the only soldier who admits firing from that position he is an obvious candidate and the evidence suggests he probably killed Patrick Doherty and Bernard McGuigan.  However he has failed to explain how Patrick Campbell and Danny McGowan were shot.  Soldier F has either concealed the number of shots and people he shot from this position or has refused to tell who else he was with who was also shooting from the south east corner of Glenfada Park North.

Lord Saville asked if there was evidence which could confirm or deny that any of the four could have been hit by bullets fired recklessly from the hip.  In that regard he referred to Mr. Doherty having been hit whilst crawling along the ground whereas Mr. McGuigan was hit in the head whilst standing.  Mr. Harvey said the evidence suggested the shots which killed both men were deliberate and aimed.  It also suggested considerably more than four shots were fired in this area and that there was a delay between each of the four men being shot.

Eilis McDermott QC, representing the family of Patrick Doherty, added that Edward Dillon, Edmund McLaugh and Paul McLaughlin all assist in establishing that the sequence is as Mr. Harvey had indicated.  She had summarised the evidence in detail in page 53 of her submissions at FS6.59.  The evidence was that Mr. Walsh was fired on repeatedly as he tried to reach Mr. Doherty and therefore considerably more than four shots were fired.

Mr. Glasgow accepted there were undoubtedly a substantial number of shots fired across Block 2.  He accepted Mr. Harvey’s analysis of the sequence and that Soldier F was the last to fire.  He said Soldier F fired only two shots and one of these killed Bernard McGuigan.

The Loden Shot List [B2283.0020]

The Tribunal asked the parties to comment on the significance of the document which has become known as the Loden shot list (so named because Major Loden claims to have written it although the only manuscript version the Tribunal has is in the hand of Captain, now General, Jackson).

Mr. Harvey said he would leave Michael Mansfield QC to deal with the primary submissions on this issue since he had developed this issue.  However Mr. Harvey did say that whatever the list was Major Loden must have known from the very outset that 3 people had been killed on the rubble barricade (because he  was present when the bodies were loaded into Sergeant O’s pig) and therefore he must have known the version of events he received from his soldiers was far from complete or frank.  In the first instance, i.e. on 30 January 1972, no soldier admitted to having fired towards the rubble barricade.  Major Loden must therefore have known that the information he recorded in his shot list did not account for either the number of people shot or the number of rounds fired.  He must therefore have known what happened was not justified because soldiers had not admitted what he knew to have happened.  Major Loden failed to assert his authority and demand an explanation from his men.

Mr. Mansfield said that the analysis of the evidence concerning the Shot List established that the exercise Major Loden claims to have done, noting details in the back of his pig (armoured vehicle) immediately after the withdrawal from the Bogside, did not happen.  Major Loden had witnessed murder and the Shot List was not an attempt to establish the truth of what happened.  In fact the purpose of the List was not internal to the army at all.  It was not, so far as can be established, shown to or used in either the Royal Military Police investigation or Lord Widgery’s inquiry.  It was constructed in recognition of the fact that there were a large number of civilian casualties and no military casualties.  Its purpose was to provide a basis for the army to claim they had shot terrorists.  It allowed the Government to give a detailed account of what allegedly took place and this was why it ended up being recorded in Hansard (the official record of proceedings in the House of Commons).  It supported the claim which was being maintained in 1972 that the army came under a barrage of assaults in Rossville Street.  It specifically sought to tie the dead to terrorism.

The discrepancies between the List and the RMP statements demonstrate that it was not part of a search for truth.  This is clearest in the final two items on the List.  Items 14 and 15 are identical and both refer to people shot at the rubble barricade and bodies being recovered.  However the grid references are nonsense.  So inaccurate are they that Major Loden said in evidence “this is not my list”.  Furthermore known shots from known locations do not appear anywhere.  An analysis of the List [OS0002.0034] shows that 4 people are said to have been killed and a further 9 ‘hit’.  Since soldiers are trained to kill a ‘hit’ implies a probable death therefore the List accounts for 13 dead.  Thus the known 13 dead are linked to terrorism by the claim in the List that those shot were armed.  Once it was recognised that the soldiers accounts, given to the Royal Military Police, could not be reconciled with the List the List was put on the back burner.  Major Loden did not even mention it in evidence to Lord Widgery.  It was dumped because it had served it public relations purpose.

Mr. Mansfield referred to the comments of Brian Hutton QC (now Lord Hutton) when representing the Ministry of Defence at the Inquest into the deaths in 1973.  Lord Hutton is reported as having said the deceased were firing at the army [Derry Journal 24 August 1973 - L0220.0001].  The military cannot now maintain the claim that it was the deceased and injured who fired on them but still they claim they shot at terrorists.

The List had nothing to do with the truth.  It cannot be determined exactly how or when it was created because the only original now available is that written by General Jackson (Captain Jackson in 1972).  Major Loden’s original list has been lost and it is unclear as to how, when or why General Jackson came to re-write it.  All that can be said is that at some point an account was cobbled together.

“Heli Teli” Cine Film

The Tribunal asked the Madden & Finucane to clarify their submissions regarding the heli teli footage.

Brian Macdonald QC dealt with this issue and explained that their submission was that the footage was incomplete or edited.  That view was based upon the evidence of the photographer INQ 2030 who said he was in the air for between 2 ½ and 3 hours but the film the Inquiry has lasts only 3 minutes 43 seconds and ends abruptly as the Paras debus on the waste ground.  INQ 2030 said he landed possibly to reload the camera and that he believes there were two loads of film sent to HQ.  He said he believed his camera only had a 100 foot spool but the film is said to be 135 feet long (according to the Inquiry) or 167 feet long (according to Mr. Harvey, one of the experts [E0028.0004]).  The Public Records Office said the film was 200 feet long.

Mr. Macdonald said the film looks cut to the non-expert eye because it shifts so abruptly and INQ 2030 said in evidence he thought some of the film was missing.  Colin Wallace, to whom the film was supposed to be delivered, said in evidence it was “obviously a cut version”.  It is known the film was taken directly to London by a Major General (INQ 2144) and handed to a public relations man at the Ministry of Defence (PR5).  This was said to be for “security processing” a phrase which has not been explained.  Mr. Macdonald submitted this may be a euphemism for editing.  There is no documentation to explain what happened to the original film although all 3 of the Inquiry’s experts assert the copy available is a copy of the original.  Madden & Finucane were refused permission to instruct their own expert to resolve these anomalies.  They therefore assert the film the Inquiry has is an incomplete, edited copy.

Paul Mahon

Mr. Glasgow submitted that the Paul Mahon interviews of civilian witnesses demonstrated that they had shown a lack of candour in their evidence to the Inquiry.

Brian Kennedy, instructed by Brendan Kearney, Kelly & Co. Solicitors on behalf of Michael Bridge and Michael Bradley, was asked by the Tribunal to deal with the evidence of Paul Mahon.  Specifically he was asked to explain the circumstances in which Brendan Kearney, Kelly & Co. Solicitors (hereafter BKK) came to submit their Response to Counsel (to the Inquiry)’s Report Number 1 without the approval of their clients.  Mr. Kennedy explained that when the Response was sent to the Inquiry in January 2000 BKK understood Messers Bridge and Bradley had approved it.  The Response had been written by Paul Mahon during his employment by BKK.  It postulated that it was possible to determine that the first shot fired prior to the Paras entering the Bogside was fired by OIRA 1 and that this preceded the shots from machine gun platoon which injured Damien Donaghy and John Johnston.  Mr. Mahon based his conclusions on his own interpretation of the noises on an audio tape recorded on 30 January 1972 by David Capper.  Mr. Mahon has no particular expertise in such matters.  When it was submitted to the Inquiry in January 2000 BKK said the Response had been approved by their clients.  However Mr. Bridge and Mr. Bradley have recently made additional statements denying this.  Mr. Kennedy explained that BKK were told by Mr. Mahon that the clients had seen and approved the document.  Lord Saville asked therefore why he, Mr. Kennedy, had not questioned Mr. Mahon about this when Mr. Mahon gave evidence.  Mr. Kennedy accepted that he should have done so.

BKK have also recently submitted to the Inquiry a tape recording made by Mr. Bridge of a conversation he had with Mr. Mahon about the Response.  Lord Saville asked why this had not been disclosed before and Mr. Kennedy said BKK were only recently made aware of its existence.  Lord Saville also asked about BKK’s letter to the Inquiry of 29 April 2004 detailing the circumstances of an alleged threat made to Mr. Mahon by ‘Red’ Mickey Doherty and communicated to him by Brendan Kearney.  Lord Saville said the Inquiry was minded to publish the letter and Mr. Kennedy confirmed they had no objections.

Mr. Kennedy also made submissions regarding suggestions by the Lawton Team [FR0007.0491] that photographic evidence [P0740] suggested Jackie Duddy was still on his front when Michael Bridge went to confront the soldiers who had shot him.  Mr. Kennedy said this was contradicted by Father Daly’s evidence.  Mr. Kennedy also disputed the Lawton submission that photograph P0741 was taken sometime before Michael Bridge was shot in the leg.

Submissions by Madden & Finucane (Representing many Families)

Arthur Harvey QC began by saying that so far as his clients were concerned they came to the Inquiry with a number of certainties:

1. those shot on Bloody Sunday were innocent;

2. there was no justification for any of the 27 people having been shot whether by reference to their own behaviour or that of anyone else;

3. they were shot deliberately, not by accident or mistake.

However these certainties only gave rise to questions, not answers and those questions could only be answered by the soldiers who fired the shots and those who commanded the shooters and planned the operation.  Although that has not happened, because soldiers and officers have chosen not to tell the truth, a substantial amount of the truth has come out.

Lord Widgery had concluded in 1972 that there was “a strong suspicion that a number of the people shot at the rubble barricade were armed or close to others who were armed”.  Lord Widgery had come to that conclusion on the basis of forensic evidence which this Inquiry has shown to be flawed.  Mr. Harvey said the discrediting of the evidence which purported to blame the victims was of itself justification for the new Inquiry.

What the search for the truth required was clarity, accountability and attributability on the part of the military and politicians concerned.  However again this has been entirely unforthcoming.  It was obviously in the shooters’ own interests to avoid any of the above but that denial has extended all the way up to the Government in Westminster.  In sending troops to Northern Ireland without any proper legal or constitutional basis the Westminster Government created the potential for what occurred on Bloody Sunday.  The Stormont Government had no control over the army even though it had responsibility for law and order in Northern Ireland.  The lack of clarity as to the army’s role created a vacuum.  In the absence of proper political control the army had an autonomy which it should never have had.  This was allowed to happen because the Government in Westminster saw no electoral advantage to resolving political problems in Northern Ireland.

The consequence of the above so far as Bloody Sunday is concerned was that the Government claimed it was not responsible for what occurred, it was a military matter.  The military at Head Quarters Northern Ireland (i.e. General Ford and General Tuzo) said they were not responsible because they only devised the overall plan, it was up to 8^th Infantry Brigade to implement it.  Brigadier McLellan at 8^th Brigade said it was not his responsibility because it was HQNI and not he who chose the Parachute Regiment.  Colonel Wilford, who commanded 1 Para, said he was not responsible because once the operation was underway it was down to his officers and NCOs.  The officers and NCOs say it is down to those who fired to justify their firing and explain why they did so.  The lack of clarity in the entire hierarchy serves everyone involved but not the search for the truth.

Mr. Harvey said the soldiers’ case before this Inquiry was that responsibility for what happened lies with unknown, unidentified, alleged civilian gunmen who have remained completely untraced for over 30 years.  Not one of the civilian witnesses who has given evidence to the Inquiry was alleged to have hidden evidence of such gunmen whose actions many must presumably have seen.  So far as his clients are concerned such IRA activity as there was on Bloody Sunday played no part in the deaths or injuries of those who were shot.  Those who had made complaints within the military before Bloody Sunday, e.g. General Welsh and Colonel Roy Jackson, were ignored.

Mr. Harvey said the soldiers case had changed with the decades.  In 1972 they claimed they had not shot the 13 who died and the 14 injured.  Then they blamed the IRA for many of the shootings and claimed those the army had shot were engaged in terrorism.  Now they claim they did shoot not only the known 27 dead and injured but also many more unidentified people and that there has been a conspiracy to conceal those others deaths.  The fact is the soldiers have chosen not to tell the truth.  None of them admits to shooting Jackie Duddy, Peggy Deery, Michael Bridge or Michael Bradley.  None admits to seeing Soldier H firing 19 shots.  None of the officers or soldiers has told the truth.  Even Soldier 027 failed to disclose what he knew.

Mr. Harvey said the responsibility rested in Westminster.  The Ministry of Defence should not have allowed senior officers to have absorbed the attitudes of the Stormont Government.  General Ford should not have been allowed to impose a military solution to the political problems in Derry where the majority Catholic population was denied any political voice by Unionist gerrymandering.  General Ford himself was in Derry supposedly to observe the operation but he left his position as soon as the shooting started and claims to have unfortunately not arrived on the Embassy Ballroom roof, from where he intended to observe from above, until it was all over.  8 Brigade failed to insist on a proper arrest plan and failed to control 1 Para.  Colonel Wilford failed to control his men on the ground as did Major Loden.  Neither men saw or controlled anything during the operation.  All the other officers in 1 Para neither saw nor heard anything of the shootings.  It was no wonder therefore that individual soldiers saw no reason to take responsibility themselves.

Submissions on behalf of Martin McGuinness

Barra McGrory, representing Martin McGuinness, had no comments to make on the Tribunal’s list of questions but identified a number of matters where he took issue with the Lawton Team’s replies [FR7.30] to his submissions regarding Mr. McGuinness’ movements on the day.  These concerned the interpretation of the evidence of Sheila Ingram, Willy Breslin and Martin Shields.  Although relied upon by the Lawton Team as evidence of people contradicting Mr. McGuinness’ account in fact they do not.  Mr. McGrory also referred to the surveillance photographs Martin Ingram said he had seen of Martin McGuinness on Bloody Sunday.  These have never been produced.  In relation to Infliction and intelligence material generally Mr. McGrory said it was unreliable, unchecked and unsourced.  He made mention of the recent fiasco over intelligence regarding weapons of mass destruction in Iraq to reinforce the dangers of giving credence to intelligence as evidence.

Submissions by Aitken Team

Gerard Elias QC submitted that the case for the families was unyielding and black and white.  He accused their lawyers of dismissing the evidence of the RUC, Special Investigations Bureau (SIB) and soldiers on block whilst at the same time calling for civilian evidence not to be viewed as homogenous.  He said he did not assert that all the civilian evidence of sighting gunmen was accurate but accused Madden & Finucane of dismissing almost all of it because it did not fit their pre-ordained view.

In response to suggestions that his submissions were speculative and based on little evidence he said this was because the IRA had failed to provide it.  However he said he was relying on the evidence which was before the Tribunal.  He accused McCartney & Casey and Madden & Finucane of discounting photographic evidence because each say a photograph relied upon by the Aitken Team does not show what is claimed.  He submitted that both an image of a man crossing Glenfada Park North [P0428] and one of Jackie Duddy lying in the Rossville Flats car park [EP25.6] show men carrying items which could be weapons.  He accused the families’ lawyers of rubbishing the spectre of the unexplained.

Mr. Elias said it may not be possible to establish the truth.  He said it was impossible to dismiss the significance of what was known of IRA gunmen on the day because it could not be known what else those gunmen did or where they were.  He said Madden & Finucane’s acceptance that Father O’Gara did see a gunman on Kells Walk was of itself significant because that gunman has not been explained by the IRA and nothing is known of where else he may have been, what weapon he had, how many shots he may have fired and whether or not he was wounded.  He said the same was true of the gunman Monica Barr has said she saw.

He said he had never disputed that some soldiers lost their fire discipline.  This was evident from the fact that of the 108 rounds they fired fifty percent were fired by only 4 soldiers.  He said many of those who had fired had never fired before in Northern Ireland and had not done so since.  He said there were many unanswered questions and the Tribunal cannot arrive at the whole truth.

Soldier H

Sir Alan Green QC made submissions specifically in relation to Soldier H.  He accepted that Soldier H was wrong in claiming to have fired 19 bullets through a window in Glenfada Park North.  The only damaged window was at 57 Glenfada Park North where a single bullet went through a window and lodged in the wall.  Sir Alan said this therefore left 18 of the 19 shots unaccounted for.  He urged the Tribunal not to conclude the Soldier H was lying when he said he could not say where he had fired but to find he genuinely did not know.  He said Soldier H was very young and frightened at the time.  He said it was a traumatic day and the events may have obliterated his memory.

Sir Alan said there was no evidence to suggest Soldier H was the tall soldier seen firing from the hip in a southerly direction from the mouth of Glenfada Park North.  Nor was there evidence to suggest he had been in Abbey Park, where Gerard Donaghy and Gerard McKinney were killed.  He said Soldier H had been at the low wall at Kells Walk but no one said he had fired from there.  He suggested the accounts of a soldier on the waste ground firing wildly from the hip [INQ 444’s evidence] could account for some of Soldier H’s rounds.  He also claimed it was possible that some of the shots fired at the window in Block 1 of the Rossville Flats (12 Garden Place) could have been Soldier H’s.

Soldier H claimed his other three shots were fired at a nail bomber and someone who ran to pick up a nail bomb after Soldier H had shot the first man.  Sir Alan accepted this account was not supported by the civilian evidence however it was possible Soldier H mistakenly believed he was firing at people with nail bombs.  Soldier H specifically rejected this when Christopher Clarke QC asked him if this were possible.  Sir Alan said the Tribunal could not be sure Soldier H was not mistaken given he was wearing a respirator and had two other soldiers, including a corporal near him who were also firing.

Lord Carver

Rosemund Horwood-Smart QC had nothing to add to her written submissions other than to announce that she now represented the late Lord Carver (Chief of the General Staff of the Army in 1972) and had made some written submissions on his behalf.

Submissions on Behalf of Family of James Wray

Richard Harvey addressed the Tribunal in relation to the evidence of Dr. Martin.  In their closing submissions [FS5.148] the Wray family’s lawyers allege Dr. Martin had been negligent and unscientific in concluding there were ‘strong suspicions’ that some of the deceased had handled firearms.  Dr. Martin had said this in his evidence to Lord Widgery in 1972 but conceded in his evidence before Lord Saville that he had not followed the usual procedure.  He had assumed the deceased had handled explosives but denied he had been pressurised into making the findings he did.  He just said they were ‘extraordinary times’.  He accepted there was no scientific foundation for concluding there were ‘strong suspicions’, he could not explain why he had said this.  Mr. Harvey submitted that Dr. Martin had been dishonest in his evidence.  Lord Saville interjected to ask why this allegation had not been put to Mr. Martin when he was giving evidence.  Mr. Harvey said he had tried to do so but Lord Saville had stopped him.

Lord Gifford then made further submissions regarding the shooting of James Wray.  He said James Wray was shot in the back as he fled across Glenfada Park and shot again in the back whilst he lay helpless on the ground.  It was an atrocity; he was murdered by a death squad who fired on unarmed men as they ran away.  He said the accounts of Soldiers E, F, G and H were contradictory and false.  He said there was no stone throwing in Glenfada Park.  This was demonstrated by the photographs [P0437, P0436, P0438, P0439] and the evidence of those who carried Michael Kelly across Glenfada Park.  The group carrying Michael Kelly’s body had not managed to get out of the south west corner of Glenfada Park North before the soldiers arrived and started shooting.

Lord Gifford alleged all 4 of the soldiers were to blame since all were part of a common purpose.  They had come to the area with the intention of firing unlawfully if the opportunity arose.  They acted together running into Glenfada Park and all opening fire.  Lord Gifford said were this a case of an underworld hit team they would all be charged with murder.  The soldiers were angry that the Derry youths had got away with rioting and they intended to teach them a lesson.  The evidence for common purpose is generally inferred but in this case there was also the evidence of Soldier 027 who recalls Soldier F and Soldier G saying at the briefing “we want some kills”.  This was wholly believable particularly in the light of what the Inquiry has heard of Soldier F’s personality.  The inference was inescapable that all 4 decided to unleash unlawful violence.  History showed occupying forces develop hatred towards those they are tasked to control and some go on to commit atrocities.  Once inside the enclosed and private area of Glenfada Park North the ‘brick’ of 4 soldiers put into action their common purpose by each committing acts of murder or attempted murder.  The comment from Soldier G on his return from Abbey Park, “I’ve got another one”, demonstrated the collective effort.  All 4 were guilty of murdering James Wray.

The second shot which was fired at James Wray whilst he was helpless on ther ground was merciless and inhuman.  Lord Gifford rejected Mr. Glasgow’s suggestion that this was merely Derry Folklore.  The witnesses in Abbey Park, in the Glenfada Park gardens, in the alleyway and Joe Mahon himself all dovetail with Soldier 27’s diary entry: ‘third man hit in leg by Soldier H.  He then went and finished him off.’  Since Soldier 27 cannot now remember seeing Soldier H ‘finish off’ James Wray it is impossible to say it was Soldier H but his inability to explain where he had fired 19 shots meant it may be true.

Lord Gifford also argued the Tribunal should reject attacks made on James Wray’s political affiliations by the Lawton Team [FR7.696].  They accuse James Wray of a “propensity for violence”, being heavily into Sinn Fein” and “defiant” towards the British army.  In fact James Wray was a hero who used principled disobedience without returning evil for evil.

Lord Gifford also argued that Sir Edward Heath, Prime Minister in 1972, had taken a close interest in Northern Ireland policy.  The documents show his close personal supervision.  From October 1971 the documents all emanate from the PM’s private office.  He chaired the GEN 47 special cabinet meetings and changed them from once a month to once a week.  He specifically urged prosecution of Civil Rights march organisers be speedy.  The PM chose to pursue a policy designed to support Brian Faulkner, PM at Stormont, by enforcing the ban on Civil Rights marches.  He chose to see the law as inflexible and failed to prioritise safety even in light of being briefed on the complaints about Paras violence at Magilligan.  He chose to confront those he saw as lawbreakers rather than act to diffuse the situation.  He accepted the prejudiced and incorrect perception that the march was in support of the IRA.  He accepted Brian Faulkner’s view that they were not genuine Civil Rights marchers.

Lord Gifford said choosing to stop the march and pitch 20 Companies of soldiers against 12,000 demonstrators was fraught with danger.  The march should never have been stopped.  Mr. Heath should have known the Paras would use excessive violence as they had done at Magilligan.  Lord Gifford said the decision to stop the march was reckless in the extreme.  Lord Saville then intervened to ask if it was really the decision to prevent the march going to the Guildhall that should be criticised.  There had been many confrontations and the events at barrier 14 before the Paras deployed were not much more than stone throwing and tear gas.  However Lord Gifford replied that General Tuzo had spoken of the risk of a shooting war developing and this demonstrated that the consequences were foreseen.  He insisted Edward Heath knew enough to be held responsible even if he did not know of the planned arrest operation.  He knew the use of weapons was likely and this created the risk of civilian deaths.  He should have instructed that the march not be interfered with or at least that nothing be done to exacerbate an obviously volatile situation.

Chief Superintendent Lagan, the senior police officer in Derry, said the march should have been allowed to proceed.  He said Brigadier McLellan agreed.

Submissions on Behalf of the Nash and McGuigan Families

Michael Mansfield QC referred to the Inquiry’s terms of reference:

“To enquire into …the events which led to the loss of life on 30 January 1972..”

and to the key questions he had set out in his opening address:

1. Was the use of lethal force unlawful, i.e. in excess of the minimum required in order to support the civil power?

2. If unlawful how did it come to be used?

He then referred to the gulf between what was said on behalf of the army in 1972 and what the soldiers are saying now.  That gulf gave rise to certain inferences.  Since no soldier accepts responsibility for any of the deaths or injuries, they say they shot terrorists, the question arises as to who did shoot them.  It has now been conceded that none of those shot could have been a legitimate target and no soldier claims to have shot any of them by mistake.  Therefore whoever did shoot them was guilty of murder.  This is why none of the soldiers or officers will answer the crucial question as to who shot who. 

There then followed a discussion between Mr. Mansfield and Lord Saville regarding Soldier F and the killing of Bernard McGuigan.  Mr. Mansfield submitted that the evidence clearly showed Soldier F was responsible and this has now been conceded by his barrister Mr. Glasgow.  However Lord Saville said he was not constrained by concessions and that there was other evidence to suggest others were firing behind Block 2.  Mr. Mansfield agreed there was such evidence but this should not lead the Inquiry to disregard the inevitable consequence of the evidence, principally that of Lieutenant 227 who saw a paratrooper kneeling where Soldier F said he was in the mouth of Glenfada Park and shoot a man near the telephone box with his arms in the air.  The evidence showed Soldier F shot Mr. McGuigan.  There was no objective basis for believing him to have been any threat and Soldier F has not offered any subjective justification for the shooting.  Lord Saville again intervened to say that Lieutenant 227 had apparently not seen Patrick Doherty, Patrick Campbell or Danny McGowan shot just before Bernard McGuigan.  Mr. Mansfield said this should not undermine the Tribunal’s confidence in his evidence regarding Mr. McGuigan’s death.  People focused on particular events and their recollection of these was not diminished by the fact that they may not have witnessed other things.  But Lord Saville indicated that it might still be possible that another soldier, such as the one described as firing from the hip close to Soldier F, had killed Mr. McGuigan.

In relation to William Nash Mr. Mansfield said he was shot by one of an identifiable group.  It was probably Soldier P but could possibly have been Soldier L.  He submitted that on the basis of the evidence the Tribunal could be sure it was either Soldier P or Soldier L and that it was murder.  There was no basis objectively or subjectively for believing William Nash to have been a threat.  Soldier P knows the truth but has refused to assist the Tribunal.  This entitled inferences to be drawn.

So far as Alexander Nash was concerned Mr. Mansfield said the Tribunal should reject the suggestion that he may have been shot by a civilian from the doorway of Block 1.  Soldier U who claimed to have seen this was totally discredited in cross-examination.  He said nothing of the alleged shooting in his first RMP statement but was prompted to lie after being shown the television interview Alexander Nash gave from his hospital bed.  The journalists evidence was contradictory and Kieran Gill could not be relied upon.  Mr. Nash always said he was shot by a paratrooper advancing down Rossville Street as he waved for help.  The paratrooper cannot be identified but the Tribunal was driven to conclude a soldier from Support Company had attempted to murder or at least seriously wound Mr. Nash.

Submissions on Behalf of Paddy Ward

Tony Jennings QC submitted that it was only after his client gave evidence to the Inquiry that any witnesses from the Provisional IRA came forward.  He said that was significant.

FINAL WITNESS EVIDENCE

Daniel McGilloway

Made Statement to the Inquiry on 16 October 2003 [AM237.0001]

Mr. McGilloway had been subpoenaed to attend the Inquiry.  He was at home on Bloody Sunday looking after his handicapped daughter.  His daughter Tina was going out with Paddy Ward at the time and they were married later.

Mr. McGilloway was called to deal with Paddy Ward’s suggestion that he had entered the McGilloway household armed with a rifle and had shot at an army helicopter from the back garden.  Mr. McGilloway said this was untrue and that he had not seen Paddy Ward at all on Bloody Sunday.  Paddy Ward  was not in the house that day and he had never seen him armed.

He agreed Eddie Dobbins lived behind him, their gardens backed onto each other.  However he denied any knowledge of any shooting incident in the neighbourhood at any time.  Mr. Dobbins evidence was that an incident had occurred in the back gardens but not on Bloody Sunday.  Mr. McGilloway also denied his son Martin was close to Martin McGuinness.

Brendan Duddy

Made Statement to the Inquiry in June 2004 [AD0199.0001]

Brendan Duddy only came forward to give evidence very recently.  He said he was in a dilemma because his evidence contradicted some of that given by former Chief Superintendent Frank Lagan for whom he had a high regard.  He said he recently discussed the matter with a Sister in Holy Orders and she advised him to give a statement.  He had attended some of the early hearings of the Inquiry but had become ill as a result.  He said he always intended to give evidence but could not face doing so.

Mr. Duddy is a businessman.  He used to own the fish shop on William Street next to barrier 14 and another in the Creggan.  Police officers used to visit the shop in the Creggan before the Troubles.  This is how he came to know Peter Gilgunn, one of the two RUC officers killed on 27 January 1972. Mr. Duddy described himself as a pacifist and said he once acted as Ivan Cooper’s deputy.  He was not involved in NICRA and did not go to marches.

Before the march on 30 January 1972 Mr. Duddy claims to have spoken to a number of people about what was to happen.  He says he spoke to Superintendent Lagan who he knew from his involvement in the City Centre Police Liaison Committee.  This was set up by the police to encourage businessmen to co-operate with the police.  Trade had virtually ceased at the time because of all the bombings.  The army was also represented by a senior officer from Ebrington Barracks.  Mr. Duddy was not part of the Strand Traders Association.

Mr. Duddy said he got to know Frank Lagan very well and described him as the most honourable man he had ever met.  He said he always got the balance right between policing and moving the community away from conflict.  They met almost every day.

Mr. Duddy said Mr. Lagan came to his house on or about 20 or 21 January 1972.  He said he was very worried about the march and the possibility of armed paramilitaries being involved.  Mr. Duddy claims Mr. Lagan asked him if he could do anything to get assurances that the IRA would not be on the march and all weapons would be kept away.  Although it was generally accepted that neither wing of the IRA used weapons on marches Mr. Lagan wanted assurances.  Mr. Duddy said he was clearly concerned but gave no specific reason for being troubled.

Mr. Duddy said that at that time the IRA were still greatly influenced by the community and shooting during a civilian march would be an unacceptable risk to civilians lives.  The IRA confined themselves to riot situations.  He said he did not particularly want to interface with the IRA but felt he had to do what he could.  A few days later he went to see Nell McCafferty in the knowledge that Malachy McGurran was a frequent visitor there.  He knew Mr. McGurran reasonably well and knew him to be an Official Republican.  He did not know his role and did not want to but knew he had some influence.

The two men spoke privately and Mr. Duddy says Mr. McGurran said there was no need for any assurance.  He was confident there would be no shooting, no one considered that anyone might be killed.  Mr. Duddy agreed but said he had been asked by Frank Lagan to seek an assurance.  He says Mr. McGurran replied to the effect that arms would not be on the march but anyone who wanted to would march.  Mr. Duddy said the assurance that there would be no weapons was immediate an unequivocal.  Mr. McGurran had no difficulty providing the guarantee himself without speaking to others.

Mr. Duddy said making a similar approach to the Provisionals was much more difficult and dangerous for someone in his position.  However he said he knew Ruari O’Bradaigh the President of Sinn Fein.  He says they met at his home in Roscommon.  Mr. Duddy says the discussion with Mr. O’Bradaigh was very similar to that with Mr. McGurran, Mr. O’Bradaigh saying there was no need for any assurance.  However Mr. Duddy pressed for an undertaking regarding weapons and Mr. O’Bradaigh said he would get back to him.

Mr. Duddy said he informed Mr. Lagan about the conversations he had had.  However he did not receive a message from Mr. O’Bradaigh until the Thursday before the march.  He says he cannot recall now how he got the message but he was told the Provisionals would not have weapons on the march.  He was certain he did receive such a message and that this was on the day Peter Gilgunn and David Montgomery were shot dead.  He passed on the message to Frank Lagan.

Mr. Duddy says he also had a chance meeting with Bridget Bond on 29 January 1972.  She told him she was still trying to get agreement with the march organisers to route the march down Rossville Street.  He says she asked him not to mention this to anyone.

On the day itself Mr. Duddy did not go on