BLOODY SUNDAY INQUIRY Week 12

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13- 16 November 2000

The Bloody Sunday Inquiry (BSI) resumed this week after an extended break of five months. Mr John Toohey, formerly of the High Court of Australia, who replaces Sir Edward Somers, was welcomed as the new member of the Tribunal. Mr Justice William Esson, the former Chief Justice of British Colombia has been appointed as the reserve member of the Tribunal.

There have been changes in the legal teams over the summer. Ms Cathryn McGahey and Mr Bilal Rawat replace Mr Jacob Grierson as junior counsel to the BSI. Four lawyers representing the families have been replaced. Michael Quinn, one of the wounded, has been granted legal representation. Two new lawyers have joined the legal team representing the soldiers.

Christopher Clarke QC, counsel for the BSI, gave an overview of material which has emerged over the summer. The tribunal heard two applications for the right to have more extensive legal representation at the BSI. Most of the week was taken up with the opening statement of Arthur Harvey QC, counsel for the families of the dead and wounded represented by Madden and Finucane Solicitors.

Oral evidence is scheduled to begin on Tuesday 28th November. Transcripts of the hearings can be found at the BSI website at http://www.bloody-sunday-inquiry.org.uk.

1.1 POSITION OF SOLDIER 027

Soldier 027 was a radio operator in the Anti-tank platoon who gave a detailed account of his life as a soldier in Northern Ireland (see BIRW report week 9 para 9.24). His signed statement, which was circulated over the summer, confirms his account of Bloody Sunday but with qualifications on his memory especially regarding events in Glenfada Park North.

In September the BSI received a more complete version of Soldier 027's account of life as a soldier. In this account he describes an operation in the Divis Flats in Belfast by the Anti-tank platoon under the leadership of Lieutenant 119. He says that Soldiers G and F ran a man into the back of an armoured personnel carrier (APC), beat, electrocuted, castrated, sliced him in the face with a knife and then dumped him on the Shankill Road.

Lieutenant 119 and Soldier H have been asked to comment on this statement. Soldier H said that he had no knowledge of this incident.

1.2 STATEMENT FROM THE IRISH PARLIAMENT TRUST.

Mr Paddy McGarvey, the director of a charity called the Irish Parliament Trust took a statement from a man claiming to be an officer in the British Army.

The statement of the unidentified officer states that he was told by another more senior unidentified officer that General Ford interfered by giving direct orders to individual soldiers, apparently authorising retaliatory fire against the IRA, and that he encouraged soldiers to fire at individuals when he was at the barricades. Mr Clarke said that the statement contains a number of inaccuracies and he would not refer to it again until the BSI has found out who the unidentified officer is.

1.3 TAPE RECORDING OF TELEPHONE CALLS TO VICTORIA BARRACKS

The BSI have received a copy of a tape recording together with a transcript of what purports to be passages of telephone conversations to and from Victoria RUC Barracks, picked up by a bugging device.

Mr Clarke appealed for help in finding the original tape recording as the BSI only have a copy. Mr Clarke said that it might not be a copy of the whole of the original tape and suggested that it might be a compilation from different sources because it is broken into fifteen separate sections.

The BSI listened to the tape recording. Some names have been blanked out to protect anonymity.

1.3.1 Section two of the tape

Section two sounds like a conversation between two army officers:

Male voice: …I think it's gone badly wrong in the Rossville…the doctors just been up the hospital and they're pulling stiffs out there as fast as they can get them out.

Male voice: There's nothing wrong with that.

Male voice: Well there is because they're the wrong people…There's about 15 killed by the Parachute Regiment in the Rossville Street area. They're all women, children, fuck knows what and they're still going up there…I mean their pigs are just full of bodies…There's a 3 tonner up there with bodies in.

Male voice: …stiffs all over the place and…

Male voice: _______ involved is he?

Male voice: Well _______ was down there, yeah.

Male voice: Yeah.

Male voice: ….the padre's a bit upset he 's going off to see the Commander about all the ill treatment.

Male voice: General Ford.

Male voice: Yeah.

Male voice: He was lapping it up.

Male voice: Who was?

Male voice: Ford.

Male voice: Was he.

Male voice: Yeah…he said it was the best thing he'd seen for a long time.

Male voice: …Interesting isn't it.

Male voice: Well done, 1st Para, he said a look at them…24…million dollar

Male voice: Good, excellent.

Male voice: He said this is what should happen.

Male voice: Yeah.

Male voice: He said we're far too passive…and I'll tell you later.

Male voice: Yeah ok.

Male voice: Ciao.

1.3.2 Points to note about the rest of the tape

In section four a man complains that his radio set is on permanent send.

Patrick Clancy of the Daily Telegraph has confirmed that his is one of the voices that can be heard in section five of the tape.

Section eight records a conversation between Mrs Breen about a Foyle taxi that had been stopped in Little James Street. This incident is also noted in the Brigade log, suggesting that this part of the recording was taken on the day.

Section nine is a conversation between a journalist and an army press officer. The army officer says that he has just had a first hand report from "one of our chaps in Derry" and claims to read from that report. He states,

"The hooligan element… walking at the rear of the crowd turned down the side streets and managed to outflank the leaders and confront the soldiers at the barriers".

Mr Clarke pointed to a separate Army document which gave a scripted account of events. The document gave instructions to the Army press department to recite the account to journalists and suggested,

'This should be described casually as - one of the chaps in Derry has just telephoned the following.'

Mr Clarke pointed out that the account given by the army press officer in the recording appears word for word in the Army document.

Max Hastings of the BBC has confirmed that his voice can be heard on section fourteen of the tape.

1.4 SOLDIER 2003

Soldier 2003 has given conflicting accounts as to whether he was in Derry on Bloody Sunday and whether he fired the shot that killed Jack Duddy. (See BIRW report week 4 para 7.9.) He has told the BSI that he does not want to voluntarily provide a statement.

1.5 SOLDIERS' STATEMENTS

638 military witnesses have been interviewed. Of them 579 have signed statements and all but six have been redacted.

In his opening statement, Mr Harvey followed a similar structure to that adopted by Mr Clarke, counsel for the BSI. He spent this week examining the background to Bloody Sunday, military and political planning, the operation order and the arrests. Mr Harvey also spent a significant amount of time looking at the documents which related to the setting up and conduct of the Widgery Inquiry.

He compared Bloody Sunday to Sharpeville and Tiananmen Square because the name had passed from its ordinary meaning into a term defining a situation where the security forces of a state use unjustifiable and unacceptable, repressive violence against its own citizens.

2.1 THE WIDGERY INQUIRY

Whilst accepting that the BSI has not been set up to re-examine the Widgery Inquiry, Mr Harvey said that he would examine some aspects of it for the following reasons:

· The Widgery Inquiry forms part of the background to events.
· It is central to the hurt and pain that the families feel and they have worked tirelessly since the Widgery Inquiry to vindicate the names and reputations of the deceased.
· The families were persuaded to attend the Widgery Inquiry on the understanding that it was an open tribunal that would be properly conducted.
· The documents show that the Ministry of Defence (MoD) had central control of the procedures and the substance of the Widgery Inquiry.
· The Widgery Inquiry was never designed to uncover the truth. It was designed to ensure that there was a historical record which exonerated the military from their actions that day.

2.1.1 Meeting between Lord Widgery and Edward Heath on 31 January 1972

The minutes of the meeting between Lord Widgery and Sir Edward Heath held on the evening of 31st January 1972 show that Lord Widgery negotiated the terms of his appointment in such a way that meant he did not have to investigate the question of political responsibility for Bloody Sunday.

Whilst the Widgery Inquiry should have been carried out in an inquisitorial fashion it was handled in completely the opposite way - in an adversarial manner. The families had to establish their case.
The Prime Minister said that the matter should be dealt with quickly and reminded Lord Widgery that they were fighting a propaganda as well as a military war in Northern Ireland.

Lord Widgery did not correct the assertion that counsel for the tribunal would play a less important role than usual. He did not intervene when the families and wounded were referred to as 'the other side.'

2.1.2 Responsibility for law and order in Northern Ireland

Mr Harvey asked who had responsibility for law and order in Northern Ireland in 1972? He pointed to a case going through the courts in January 1972 which asked who had control of the Army.

The case was between John Hume and the Londonderry magistrates and asked whether the Stormont government had power to compel or empower the army to act under the Special Powers Act. The Court of Appeal decided that Stormont did not have powers over the Army.

The case is important because it shows that questions about who had control of the Army were going through the courts at the time of Bloody Sunday. Mr Harvey submitted that politicians must have been thinking about who had responsibility for the Army at the time that the operation was being planned.

2.1.3 Procedural arrangements for the Widgery Tribunal

Mr Harvey said that the procedural arrangements were negotiated between the Lord Chief Justice, the Attorney General and representatives of the Army in private. The legal representatives of the families were not informed about any of these negotiations.

2.1.4 Avoiding accusations of 'gagging' the press

Mr Harvey said that the Government did not want the journalists present on Bloody Sunday to express their opinions on what happened. It would have been politically embarrassing to allow the Attorney General (the principal legal adviser to the Government) to specify what would constitute contempt. To avoid any accusation of 'gagging', Lord Widgery gave a general warning against contempt.

2.1.5 Immunity for the soldiers

One of the most important matters for the Government was to establish an inquiry which would not lead to any prosecutions being brought against the soldiers. Mr Harvey pointed to the clever device used to ensure that soldiers would be granted immunity from prosecution without having to admit publicly that this had been arranged.

By ordering a soldier to give evidence the authorities ensured that anything he said could not be used against him in court (the soldier could not be said to have given his evidence voluntarily). Added to this, the soldiers were not cautioned before giving their statements (again this meant their evidence could not be used against them in a court).

2.1.6 Appointment of Lord Widgery and location of the Tribunal

In a document to the MoD, the Attorney General commented that the appointment of Lord Widgery as Chairman of the Tribunal was 'a good choice as far as the army was concerned.' He also indicated that the procedures used would be acceptable to the MoD.

The document also says that the soldiers would be informed that whatever they said in their statements would only be disclosed to the MoD. Mr Harvey said that this was an indication to the witnesses that Lord Widgery would decide whether their statement would be used.

The MoD was able to choose the venue for the Tribunal which was located in Coleraine rather than Derry.

2.1.7 MoD control over the Widgery Tribunal

Mr Harvey showed how the MoD took control of the procedures used during the Widgery Inquiry.

One document showed that Major General Morton suggested more extreme measures than simply screening witnesses should be taken because he thought that certain Roman Catholic firms of solicitors might pass on information about the identity of the witnesses. The document notes that the Attorney General said Lord Widgery would go to extreme lengths to safeguard witnesses. This extended to adjourning to a separate room to hear an Army witness attended only by counsel for the Tribunal and counsel for the Army.

2.1.8 Film footage and photographs

Mr Harvey said that the BSI is at a disadvantage because the footage filmed from the Army helicopter is incomplete. A minute from a meeting of the Army's legal team held on 2 February 1972 noted that the film was taken at the height of the engagement and was to be brought back to London for security processing. (The footage that the BSI has ends abruptly at the point that the Army enter the Bogside.)

The Army photographs have all disappeared. Lord Widgery did not make substantial use of those photographs. The fact that the photographs are missing can only lead to one inference: they confirmed the account of events that can be found in the documents.

2.1.9 Drafting Lord Widgery's Report

The Secretary to the Widgery Tribunal, William Smith, wrote a note to Lord Widgery setting out points still to be covered in his report. Mr Smith pointed out that:

· Journalists would spot discrepancies between their own and the soldiers evidence.
· The Report would be vulnerable if it did not acknowledge the 550 National Council for Civil Liberties (NCCL) statements.
· The question of whether the snatch operation was bungled still existed.
· Colonel Wilford's actions needed some explaining. The Secretary asked 'was it right for a Battalion Commander to be running all over the place instead of keeping control at his headquarters?'
· Mr McSparren (counsel for the families) had 'succeeded in throwing doubt on the significance of the paraffin swab tests.' When he cross-examined Dr Martin 'a large slice of the benefit of the doubt' had gone to the deceased.
· Lord Widgery would 'pile up the case against the deceased, including the forensic evidence or the willingness of local people to remove guns, but will conclude: we cannot find with certainty that any one of the 13 was gunmen.'

Mr Harvey said that this document proves that the Widgery Report was seriously tainted and tainted in a way that was known to those involved in the Inquiry. Lord Widgery had claimed that any conspiracy would have been revealed when the lawyers representing the families cross-examined witnesses. However the lawyers for the families never had access to the documents which showed the inconsistencies in the Army's evidence. In other words they did not have the material which would have enabled them to investigate any cover-up.

2.1.10 Conclusions on the Widgery Tribunal

The Widgery Tribunal was a screen designed to vindicate the Army. Mr Harvey said that the truth is that soldiers of 1 Para had opened fire on unarmed people, most of whom were in flight. 1 Para did this because of failures; misjudgements and wholly unacceptable policies made at the highest level both politically and militarily. When the consequences of the day became known to the MoD and the Government, they launched a cover-up in the name of a public, impartial investigation.

Mr Harvey said that the Government had indicated to the families in 1974 and 1992 that the deceased should be regarded as innocent. He said that the Government was happy enough to state that in 1972 - they were not, however, prepared to say that there was culpability for the deaths.

2.2 POLITICAL AND MILITARY BACKGROUND

Mr Harvey examined government and military documents to show the political and military background to Bloody Sunday.

2.2.1 The situation in Derry

Colonel Wilford has frequently said that the tragedy of Bloody Sunday occurred because the people of Derry did not understand a Belfast regiment. Mr Harvey said that in fact the reverse was true; it was the failure of those politically in command to understand Derry that led to the massacre.

Derry was a community apart. From the very beginning of the existence of Northern Ireland it saw its future within the island of Ireland. In 1922 the city was gerrymandered to convert the nationalist majority into an artificial minority. In 1934 when it appeared that the council was about to pass into nationalist hands once more, the boundaries were gerrymandered again.

Inward investment was discouraged because Derry was seen to present difficult political problems. The local unionist MP, Teddy Jones persuaded the Government not to send jobs to Derry because if they did it would lead to an improvement of the standards of the nationalists which in turn would lead to a difficulty maintaining unionist control of the city. The council was run by unionists who controlled employment and housing through political appointments. In 1965 the Lockwood Committee decided to site the new university of Ulster at Coleraine rather than Derry even though it was the second city of Ulster, denying Derry's citizens the employment and educational opportunities that would accompany the university.

Mr Harvey said that it was the inability of unionism to come to terms with the demands of the civil rights movement (to votes, jobs, education and housing) that sparked off a considerable part of the Troubles.

2.2.2 From 1969 to 1971

In May 1969 unionism was going through a crisis. Captain O'Neill's attempt at economic modernisation was met by a right wing to whom nothing was acceptable and who could not and did not wish to come up with a plan which would be acceptable to anyone other than themselves.

There were three Prime Ministers of Northern Ireland within a year. No go areas were established in late August 1969. The nationalist community was herded together in a ghetto into the Bogside, the Brandywell and the Creggan. Captain O'Neill was replaced by James Chichester-Clarke who was replaced by Brian Faulkner. Brian Faulkner's plan to involve all parties in a parliamentary committee system at Stormont came to nothing.

In Derry events changed in 1971 when the Army shot dead Seamus Cusack and Desmond Beatty. On 9th August Brian Faulkner introduced internment and within three days, 22 people had been killed in the worse violence since 1969. From August to December the violence continued to escalate.

2.2.3 September 1971

By September 1971, General Tuzo was resisting pressure from Brian Faulkner and John Taylor to occupy the no-go areas in Derry. This remained his position until the end of the year. Mr Harvey said that this is significant because at this stage the military had three objectives; to secure Belfast; to secure the borders and finally to secure Derry. The resident battalions in Derry understood that the Derry no-go areas did not form the immediate priority. In any case, the resident battalions did not have the manpower needed to deal with the no-go areas.

It is apparent that Sir Edward Heath was trying to persuade Brian Faulkner to open up his Cabinet to representatives of the minority community but the focus of the unionist Cabinet at Stormont was security. Security would have to come first. In other words once Catholic opposition was crushed then Stormont might be in a position to offer political change.

2.2.4 Factors contributing to tensions

Mr Harvey pointed to the factors creating tension in the political and military background to Bloody Sunday:

· Westminster was concerned that Stormont should be considering a genuine and purposeful programme for change to include the minority population of Northern Ireland. However they also acknowledged the difficulties that the Northern Ireland Prime Minister faced from right wing groups within his own party.
· Stormont want to convince Westminster that security should be their prime concern and political change can only be expected when the security situation had resolved.
· Stormont did not understand the international implications of taking extreme repressive measures or the legality of some of their domestic proposals.
· General Tuzo was appointed General Officer Commander in early 1971. He was an intelligent individual with what Mr Harvey described as a 'modern disposition.' At his first meeting with the Joint Security Committee (JSC), he said whilst the Army was in Northern Ireland to support the Stormont government, he would not allow his troops to be used for purely sectarian ends. He was resisting pressure from Stormont to go further in relation to Derry.
· General Ford arrived in July 1971 and aligns himself very closely with the Stormont regime and its view of how progress should be made.

2.2.5 Reminder of military chain of command

Working from the most senior downwards, the chain of command for the military in Northern Ireland at this time was as follows:

2.2.6 Status of the soldiers in Northern Ireland

One of the questions exercising the minds of the military at this time was the role of the soldiers in Northern Ireland. A memorandum dated 1 February 1972 suggested the following possibilities:

· They were acting on behalf of the civil power.
· They were acting in defence of the realm against the Queen's enemies.
· They were acting in self-defence.

Mr Harvey said that Westminster was content to leave security under the control of the JSC at Stormont. However they constantly spelt out that they would need to be informed if the Army was going to be embroiled in any operation of any significance.

2.3 PERSONALITIES AND POSITIONS

The documents reveal the different attitudes of General Tuzo and General Ford. Whilst General Tuzo was conscious that the Army could be placed in a difficult position, General Ford actively supported a firm and resolute programme for the reimpostion of the rule of law in Derry.

Mr Harvey criticised Professor Bew's assessment of Brian Faulkner. Mr Faulkner was not at this stage, as Professor Bew suggested, a politician striving for change. He was a hard-line, solid, official unionist and had undermined the reforms of Captain O'Neill.

Derry's part in the siege of 1690 meant that the city had a significant symbolic importance for the unionist tradition. The no-go areas were an anathema to the unionist background and heritage. As soon as General Ford decided that the Stormont Government had to be supported then Derry took on the same importance to him.

General Ford undermined General Tuzo's attitude that the army should not be drawn into the political arena. He began to make political decisions under the guise of law and order.

Mr Harvey said that from July 1971, the documents show that there is a pressure from within Stormont for the Army to take harsh and repressive measures.

A constant theme in the documents is that Westminster was beginning to suffer because of events in Northern Ireland. Edward Heath was experiencing problems with the economy and the EEC.

General Ford's position of Commander of Land Forces (CLF) was created to provide an interface between politicians, the police and the Army. Mr Harvey said that this is important because it meant that General Ford had more contact with the police than others in the Army. General Ford adopts the same view as the local unionist and police hierarchy. He took the view that about 90% of the Catholic population in Derry is in rebellion and openly supporting the campaign being conducted by the IRA.

General Carver, General Tuzo and Brigadier MacLellan wanted to soften security with political change. In contrast Brigadier General Kitson constantly chivvied General Ford with the taunt 'I have solved Belfast, what are you doing about Derry?'

2.4 THE TRAIL OF DOCUMENTS LEADING TO BLOODY SUNDAY

In his opening statement, counsel for the BSI suggested Bloody Sunday had not been envisaged or foreseen. Mr Harvey said that there was an indication that Bloody Sunday could end up in a shooting war at a meeting of the JSC on 27th January. He said that looking at all the documents and personalities involved, Bloody Sunday ought to have been foreseen by both Westminster and Stormont.

2.4.1 Meeting on 5 August 1971

Minutes of the meeting held on 5 August reveal a tension between Brian Faulkner and the Westminster cabinet on the desirability of internment. The UK ministers pointed out that neither General Carver nor General Tuzo believed that it was necessary for security and stressed the international implications of such a serious step.

The UK ministers insisted on a ban on all parades which was reluctantly accepted by Brian Faulkner.

2.4.2 Meeting 2 September 1971

At a JSC meeting on 2 September General Tuzo and the Stormont politicians disagreed about what action should be taken in Derry. The politicians wanted more oppressive action by the troops. General Tuzo said he did not have the resources and questioned the political wisdom of such a move. He told them that he would not allow the Army to be used as a tool to implement sectarian policies.

2.4.3 Meeting 7 October 1971

By 7 October both Stormont and Westminster governments were in danger. Security measures had failed. The British public was losing patience with what was happening in Northern Ireland.

Notes from a meeting held on that day show that Brian Faulkner still saw the key to progress as lying in a solution to the security programme. Edward Heath believed confidence would be restored if there were clear signs that both Governments were working towards a realistic political settlement which would satisfy the minority that their interests were being represented. Mr Faulkner rejected this suggestion and said that he could not contemplate leading a Government 'which included Republicans.'

2.4.4 Operation order 10 October 1971

On 10th October, Brigadier MacLellan sets out an operational order in which he said that the military profile should be lowered in Derry. In terms of an overall strategy, he recognised the need to bring the Catholic population with the Army and he traced the complete alienation of the Catholic community in Derry to the shooting of Seamus Cusack and Desmond Beatty in July 1971 and the introduction of internment. Throughout the order Brigadier MacLellan recognises there are political imperatives that lie behind law and order.

2.4.5 27 to 29 November 1971

The minutes of the GEN 47 meeting on 27th November reveal that Derry was considered as 'different' to Belfast and the border. The document notes any major military operation in Derry could have widespread political consequences.

The view that Derry is different to other areas is repeated at the next meeting held on 29th November.

2.4.6 14 December 1971

In a meeting held on 14 December, General Tuzo informed the Home Secretary, Reginald Maudling, that a choice had to be made about Derry. Either the authorities had to accept the Bogside and Creggan as areas where the Army could not go or a major operation could be mounted which would involve at some stage shooting unarmed civilians.

Reginald Maudling accepted the Army's preference for the first option and said that it would be wrong to provoke a major confrontation at this stage. Mr Harvey said that this shows General Tuzo resisting the advances of the Stormont policies to go in and shoot people.

Mr Harvey suggested that General Tuzo was pointing out that there was a military solution but the politicians needed to be aware that this would involve killing unarmed innocent civilians. Mr Harvey submitted that the politicians were aware of this but were prepared to leave the consequences to be faced by the individual soldiers on the ground.

Mr Harvey noted that there is no mention of the 'Derry Young Hooligans' (DYH) - who, within a very short time, are defined by General Ford as a major problem.

2.4.7 General Tuzo's opinion of Commander Anderson

Commander Anderson was the MP for Derry and had been appointed as a Permanent Private Secretary to the Minister of Home Affairs at Stormont. The senior officer of his constituency group was the member of Strand Trader's Association. It was Commander Anderson who asked for the meeting between General Tuzo and the traders.

A note of General Tuzo's discussion with Reginald Maudling on 14 December records General Tuzo's concerns about Commander Anderson. He said that Commander Anderson was 'proving an embarrassment' and that if given access to members of the force he would 'undoubtedly try to make mischief.' General Tuzo described him as 'both foolish and reactionary.'

Mr Harvey said that it is important to note, considering his opinion of Commander Anderson as someone who should not be given access to members of the force, that General Tuzo sent General Ford as his replacement to meet the traders.

2.4.8 General Ford's document dated 14 December

In a document dated 14 December, General Ford sent a document to General Tuzo , contradicting Brigadier MacLellan's assessment of Derry.

General Ford stresses the entirely hostile Catholic community. He estimates that there are a 'hard core of 250 hooligans.' He outlines three military options and concludes that the correct military solution is to go in and establish control of the Bogside and the Creggan. He accepts that this course will alienate Catholic opinion internationally, explaining,

'The risk of casualties is high and apart from gunmen or bombers, so called unarmed rioters, possibly teenagers are certain to be shot in the initial phases. Much will be made of the invasion of Derry and the slaughter of the innocent.'

General Ford acknowledges there will be political implications to such a policy, including the possibility of frequent cross-border battles and notes that these will 'require expert judgment at a higher level.'

Mr Harvey pointed to General Ford's definition of innocence - he sees anyone in a crowd as a rioter.

2.4.9 General Carver's visit 15 to 17 December 1971

General Carver's report into his visit and his assessment of the situation in Derry is that to change the no-go areas would need a major military operation which would mean huge implications for the stability of progress within Northern Ireland. He suggested adopting a policy of less provocative activity but higher than the 'low profile' attitude adopted in September and October. In other words, the policy that had already been adopted by General Tuzo and Brigadier MacLellan.

Mr Harvey said that this document shows a sensitivity, at least at that level of command, to the fact that the military solution cannot be seen in isolation but has to be considered in a political context. He added that the political context is one against which personalities such as Commander Anderson had been appointed.

At this stage there has been no change of policy.

2.4.10 Brian Faulkner's statement 4 January 1972

Brian Faulkner made a statement to the Times on 4th January in which he said that unless the security situation was improved there would be a Protestant backlash.

2.4.11 General Ford's report on his visit to the Strand Road Traders - 7 January 1972

General Ford said that he was 'disturbed by the attitude' of the Brigade Commander, Battalion Commander and Chief Superintendent Lagan. He disregards intelligence reports and writes that 'hooligan fringe activity is to be vigorously encountered.' This is the first time that 'hooligan' activity is mentioned in any of the documents. It has never been seen as the central problem facing Derry.

General Ford reports on the demands of the Strand Road Traders, who wanted

'…at minimum the Rossville Flats cleared (5,000 people live in them and a soldier has never entered them in the history of Londonderry) and ideally the Creggan and Bogside occupied. They also wanted curfews and shooting on sight.'

Mr Harvey said it is significant that General Ford was not disturbed by the suggestion that 5,000 people should be ethnically cleansed from the area in which they lived, that a military curfew should be imposed and that people should be shot on sight.

General Ford said that gunmen and bombers are not the immediate problem in Derry. Instead he focused on the 'DYH' who he described as 'groups of tough, teenaged youths, permanently unemployed, have developed sophisticated tactics of brick and stone throwing, destruction and arson.' He saw them as the chief problem and wrote,

'Against the DYH - described by the People's Democracy as 'Brave Fighters in the Republican cause' - the army in Londonderry is for the moment virtually incapable. This incapacity undermines our ability to deal with the gunmen and bombers and threatens what is left of law and order on the west bank of the River Foyle.'

General Ford concludes;

'I am coming to the conclusion that the minimum force necessary to achieve a restoration of law and order is to shoot selected ringleaders amongst the DYH, after clear warnings have been issued.'

Mr Harvey said that no one within a civilised society could contemplate that the proper punishment for stone throwing was summary execution.

2.4.12 Immediate consequences of General Ford's visit

Up until General Ford's visit to the Strand Road Traders, there had been no hint that the Parachute Regiment should be deployed in Derry. After the visit, General Ford decided to deploy 1 Para on the NICRA march despite the advice from Brigadier MacLellan and Chief Superintendent Lagan that there would be less damage if the march was just simply left to proceed.

Mr Harvey said that General Ford did not have the power to actually direct that battalions be deflected to Derry. (His function was to interface with politicians and the police.) The only way he could ensure that battalions would be in Derry would be if there was an operation already being conducted in Derry which had the approval of General Tuzo. Mr Harvey submitted that when General Ford saw there would be a brigade operation in relation to a march it provided him with the opportunity to teach Derry a lesson.

Mr Harvey asked about General Tuzo's involvement. How had General Ford managed to isolate Brigadier MacLellan within his own brigade area?

Mr Clarke suggested in his opening statement that there was no agenda behind the arrest operation because the media were there as part of the plan. Mr Harvey said that the media would be there anyway. He submitted that General Ford was in Derry so that he could be seen presenting what he saw as the fundamental change in policy in the Derry area.

2.4.13 Important points to take from the documents

Mr Harvey made the following points about the trail of documents:

· There was a policy, approved by General Carver and implemented by Brigadier MacLellan, which understood the situation in Derry.
· Brigadier MacLellan and Chief Superintendent Lagan shared the same view on the best method of dealing with the situation in Derry.
· Brigadier MacLellan and Chief Superintendent Lagan's recommendations were overborne by the military approach of General Ford and the use of 1 Para.
· When things went badly wrong. Brigadier MacLellan was left in the personally responsible position. He had to choose between telling the truth about what happened on Bloody Sunday or remaining loyal to his troops.
· The suggestion that Chief Superintendent Lagan was someone that nobody trusted only came from General Ford and grew when Brigadier MacLellan tried to distance himself after the events on Bloody Sunday.
· From the end of September through to the middle of December, Westminster had asked Stormont to produce a programme of meaningful reform which would involve the minority Catholic population in Government. Brian Faulkner refused to do this.

2.5 PREPARATION FOR THE MARCH

2.5.1 Security Assessments

A Special Branch report on 19 January 1972 said 'no trouble anticipated' at the NICRA march. Mr Harvey said that, as a Special Branch assessment was based on information from local contacts, it might have been expected to carry some weight with General Ford. However General Ford sent his own Director of Intelligence to Derry after his meeting with the Strand Traders. Mr Harvey pointed out that the BSI has not been given any of the assessments from that Director.

An intelligence summary dated 20 January gives no indication that gunmen would be operating at the march. Mr Harvey said that if any problems had been anticipated, they would have been included in that assessment.

2.5.2 Telephone conversation between General Ford and Brigadier MacLellan

Brigadier MacLellan made the following notes of his conversation with General Ford,

'Have told the CLF I certainly need two additional battalions, possibly three. There will be 1 KOB and 1 Para (plus possibly one from the UK). CLF sees 1 Para in reserve… to counterattack, i.e. go round the back, to arrest 300 to 400 rioters. Extra companies deployed possibly as follows.'

Mr Harvey said that it is difficult to know whether 'counterattack' was the word used by General Ford and whether Brigadier MacLellan interpreted that as meaning to go around the back. There has never been any suggestion of a plan to go around the back of the rioters.

In relation to the attempt to make 300 to 400 arrests. Mr Harvey noted that there were not even the facilities available to pick up the 50 individuals who were arrested. In fact extra vehicles had to be sent to transport the 50 people to Fort George.

2.5.3 Thinking of senior army officers at 24 January

Mr Harvey said that notes from a meeting held at headquarters in Northern Ireland suggested that what appeared to be differences in the approaches of Army Commanders towards Derry might in reality never have existed.

For the first time General Tuzo suggests that Catholic hostility to the Army is encouraged by priests and NICRA which he describes as the 'active ally of the IRA.' This is significant because up until this point, General Tuzo had been very careful in avoiding language which might be taken as an opportunity or excuse for anyone to use extreme action. Here, he is talking to General Ford who had already formed the impression that the Catholic population of Derry was beyond the approaches of reason and moderation.

The march and those involved in it are all characterised as 'active allies of the IRA.' Mr Harvey said that this marries neatly with General Ford's view that the stone throwers at William Street and Rossville Street were undermining the ability of the Army in Northern Ireland to come to terms with the IRA.

2.5.4 Meetings held on 27 January

There were three separate meetings on 27 January 1972.

A JSC meeting was chaired by John Taylor because Brian Faulkner was in London. The JSC confirmed that security in Derry would be primarily an Army operation. They set out the plan, which was to block William Street,

'It is planned to stifle the Shantallow march at source, but it would be pointless to attempt the same tactics in the Creggan area. The basic plan here will be to block all routes to William Street and to stop the march there. The operation might well develop into rioting and even a shooting war.'

Mr Harvey said that it was surprising that the statement about a 'shooting war' should be left hanging without any further discussion. It is not clear who said 'shooting war' but Mr Harvey suggested that it was General Tuzo because it is difficult to imagine anyone else saying that without him intervening.

At the GEN 47 meeting, General Carver confirmed the Army's intention to stop the Derry march on the edge of the nationalist areas. He said that 20 companies of troops and a water cannon would be used. Edward Heath stressed the need for maximum publicity on the arrests to counter Protestant criticism of the failure to enter the Bogside and Creggan. Mr Heath indicated that Westminster should support Stormont in its decisions.

Brian Faulkner attended a meeting at Downing Street on the same day. Mr Harvey said that the real thrust of the meeting with Edward Heath and Reginald Maudling was the possibility of constitutional change.

2.5.5 MoD document of 27 January 1972

Mr Harvey said that there had been a change in the military approach to this march compared with previous marches. The document refers to taking stronger military measures which will inevitably lead to further accusations of 'brutality and ill treatment.'

The document sets out the options under consideration, 'We must accept that current force level cannot be appreciably increased merely to impose a ban on marches. If we accept that the ban must continue we are left with two possible courses of action besides speeding up legal proceedings:

a) an extension of the ban to include all public meetings.
b) Additional measures for the physical control of crowds which threaten to march.

The only other additional measure left for physical control is the use of firearms i.e. 'Disperse or we fire.' Inevitably it would not be the gunmen who would be killed but 'innocent members of the crowd'. This would be a harsh and final step, tantamount to saying 'all else has failed' and for this reason must be rejected, except in extremis. It cannot, however, be ruled out.'

Mr Harvey noted that the classic colonial response of 'disperse or we fire' is not rejected because innocent people might be killed. That is simply regarded as 'harsh.' Instead it is rejected because it would reflect badly on other measures that have been tried and will be an admission to the public that everything else had failed.

Mr Harvey described this development as chilling because up to 7 January the stone throwers in William Street and Rossville Street were regarded as nothing more serious than a constant irritant. However by 27th January a JSC document mentions the possibility of a shooting war.

Mr Harvey pointed to the Government's desire to ensure that a co-ordinated and consistent line was being taken before 27th January. He asked why this seems to disappear after that date and bald statements are left unchallenged.

2.5.6 Preparing for the fallout

Mr Harvey said that the preparation for this march was noticeably different to previous marches at Magilligan, Armagh and Lurgan.

The Secretary of State for Foreign Affairs, Sir Alec Douglas-Home, asked the UK representative to suggest to Brian Faulkner that a public statement be issued from Stormont before the march. Mr Harvey said that the primary purpose of such a statement was to prepare public opinion for violent scenes on television following the march. The fact that the Foreign Office was involved suggests that preparations were made for an international fallout.

2.6 THE OPERATION ORDER

The operation order for the march stated:

· 'we expect the hooligan element to accompany the marchers and anticipate an intensification of normal levels of rioting during and after the march.'
· 'Almost certainly snipers and petrol bombers and nail bombers will support the rioters.'

Mr Harvey said that there is nothing in any of the intelligence documents to suggest this degree of rioting. However this information has obviously been relayed to Brigadier MacLellan because he has incorporated into his operational order.

As of 27 January, Brigadier MacLellan's view was that the march should be dealt with in as low a key as possible. He suggested photographing anyone who could not be arrested on the spot so that they could be dealt with later.

Mr Harvey submitted that Brigadier MacLellan envisaged arrests being made no further than William Street/Rossville Street junction. Brigadier MacLellan understood the 'scoop-up' operation as scooping up anyone rioting at barriers 12 and 14.

The order made it clear that the arrest operation was:

· To arrest those assailing the containment line.
· To be carried out on foot.
· Could not be carried out without Brigadier MacLellan's orders.

Mr Harvey said that the order also reflects a concern that the prominent liberal figures attending the march should not participate in the march but should simply make their way to the speakers' platform directly from their hotel. Mr Harvey said that this is significant because it indicated that there might be trouble.

Mr Harvey pointed to the documents (prepared after Bloody Sunday), repeatedly indicating that the security situation in Derry had been deteriorating before the march. In fact all the indications prior to Bloody Sunday did not show any escalation in violence. The pattern of violence was relatively typical and Mr Harvey said that on occasions there had been a modest fall on certain days.

Mr Harvey submitted that part of the plan for Bloody Sunday involved damage limitation by overstating what had happened in Derry in the build-up to the march and by elevating the stone throwers to the position of nail bombers. It also involved undermining Chief Superintendent Lagan because of his fundamental differences with the way the march should have been handled.

Mr Harvey submitted that the factor that had most influence on events was General Ford's decision to deploy 1 Para. 1 Para was primarily an attack force designed for war and not for policing.

Mr Harvey spoke about how unsuited 1 Para was to use as an arrest force and explained that 1 Para could not readily identify rioters from their position behind the containment line.

He submitted that General Ford was aware that 1 Para had a reputation for behaving in an exceptionally harsh way towards anyone they had been ordered to attack.

4.1 CONCERN FROM SECTIONS OF THE ARMY

Officer 1347, a Brigade Commander in 8th Brigade, said that he was surprised he was not consulted about the plan beforehand since he was the longest serving Commanding Officer in Derry. He wondered who had thought out the plan to use 1 Para and noted that 'it reflected a change of policy and emphasis on future operations in Londonderry.'

Officer 1347 had spoken to Brigadier MacLellan about the use of 1 Para but was told that the decision to use 1 Para was made 'at the highest level.' He took that to mean the decision was made at Government level because he did not believe that a military commander would place a battalion in a situation where they did not know the ground. Lord Saville interrupted to say that the documents suggested that it was General Ford's decision to use 1 Para. Mr Harvey said that this did not mean that the decision was not known and approved by the Government.

4.2 MISUNDERSTANDING THE SITUATION IN DERRY

Mr Harvey said that when Colonel Wilford said that his troops would never behave like Aunt Sallies he showed a fundamental misunderstanding of the role of the Army in Derry, to the function of the Army in dealing with riots and to their limitations in manpower. This had also given rise to a much more aggressive attitude by the Paras.

Adjutant Jackson revealed the mentality of the Paras when he described their previous visit to Derry, Operation Hailstone, in July 1971. He said that the idea behind that operation was to get the gunmen into the streets but the IRA would not play. The 'bloody thing' had 'never got off the ground' and since then the Battalion had 'always wanted to sweep through the no-go areas of Derry.'

Operation Hailstone was an arrest operation mounted in the Creggan. Mr Harvey read out the operation order and pointed to the degree of detail the order covered. It dealt with method of withdrawal, summary of timings, deployment and locations. Mr Harvey said this was in contrast to documents in relation to Bloody Sunday, the order for Operation Hailstone set out all the matters which would be expected from a well-planned operation to carry out arrests.

4.3 ATTITUDES TOWARDS THE PEOPLE OF DERRY

Mr Harvey asked the Tribunal to keep an open mind to the suggestion that what really lay behind the arrest operation was an attempt to draw gunmen into confrontation with the Army to provide the Army with the justification for inflicting additional damage.

He pointed to the attitudes of people in authority towards the people of Derry. A document drafted in June 1972 by a policy body within the Foreign Office stated,

'As you know, I have always been in favour of encouraging the no-go areas to rot from within. There is no reason why we should not encourage the breakdown of essential services and the spread of disease…'

Mr Harvey said that if the plan was to carry out arrests then it was fraught with difficulties that would have been obvious to anyone.

5.1 COLONEL WILFORD'S INSPECTION

The Thursday before the march, Colonel Wilford carried out an inspection of the area by helicopter and car. He concluded that the operation should be mounted by placing soldiers in the Presbyterian Church. Once the march had passed, his troops would deploy from the area of the Presbyterian Church and close off the rioters in a pincer movement somewhere in the junction of Rossville Street/William Street/Little James Street. Mr Harvey pointed out that the wall of the Presbyterian Church was15 to 20 feet high.

5.2 THE OPERATION ORDER

The order stated,

'An arrest force is to be held centrally behind the checkpoints, and launched in a scoop-up operation to arrest as many hooligans and rioters as possible.'

Mr Harvey said that the troops were not held centrally behind a checkpoint. The soldiers could not see from their location in the area of the Presbyterian Church - they would never be able to identify any person rioting.

Mr Harvey said that the operation was conducted as a scoop-up of civilians rather than an arrest operation. The film footage taken from the Army helicopter reveals that when the Army vehicles move into Rossville Street there is no one in the vicinity of barrier 12.

5.3 THE ARRESTS

Mr Harvey showed photographs of the arrests taking place and film footage of those arrested at the gable end of Glenfada Park being marched towards the GPO compound. He read out the reasons for arrest given on the arrest forms to show that the photographic evidence contradicted the accounts given by the soldiers. Mr Harvey also noted that all of the people who tried to take the dead and injured to hospital were arrested as 'stone throwers.'

5.3.1 Arrests at Glenfada Park North

Film footage was shown of a group being marched by the soldiers from under the stairs at Kells Walk to the end of William Street. The group are made to march with their hands on their heads. The footage shows that it is the same group of people who had been photographed taking shelter at the gable end of Glenfada Park North. Father Bradley, 12 year old Myles O'Hagan, Hugh O'Boyle, Christopher Doherty and Barry Liddy can be seen on the film footage. Mr Harvey said that the arrest forms for this group of people indicate that they were arrested in Rossville Street.

5.3.2 Arrests at 33 Chamberlain Street

Those arrested at 33 Chamberlain Street included Otto Schlinwein, the chemist attending to Peggy Deery's injury and the people who had brought Michael Bridge to the house after he had been shot. Throughout most of the arrest forms, the reason for arrest is given as 'arrested for riotous behaviour.' However some do not even give that as the reason, they simply state 'he was in a group in a house.'

5.3.3 Arrests on the waste ground at Rossville Street

Mr Harvey listed the arrests made on the waste ground at Rossville Street. The arrest form for William John Dillon states that he was arrested for assaulting a soldier. Mr Harvey pointed to the evidence from the Daily Mail's photographer, Mr Morris. He had seen the arrest and said that it was the soldier who was assaulting Mr Dillon. Again the reasons on the arrest forms for those arrested in this area are either 'riotous behaviour' or 'throwing stones at the military.'

5.3.4 Barry Liddy's interview

Mr Harvey played a tape recording of an interview conducted with Barry Liddy after he had been released from Fort George and before he was taken to hospital for treatment to the injuries he received during his detention. Mr Liddy can be seen in the photographs of the group at the gable end of Glenfada Park North.

Barry Liddy was a 45-year-old ex-member of the Royal Navy and the British Army and was an uncle of Michael Kelly's.

Mr Liddy describes seeing Father Bradley administering the last rites to Michael Kelly whilst the Army continued firing. When the soldiers came to the gable end, Mr Liddy describes how the people gathered there were ordered to put their hands on the wall and were kicked and beaten by the soldiers. The group were taken to an Army lorry and were continually beaten with rifle butts. Once inside the lorry the group were told to sit on the floor facing the back of the lorry. The soldiers suddenly changed their minds and told the group to face the other direction. Anyone who was slow was beaten. When the lorry arrived at Fort George, Mr Liddy describes running the gauntlet. He was then taken into the shed, kicked and made to clutch the barbed wire which lined the wall.

At the detention centre, Mr Liddy was processed as someone who was arrested for having thrown stones on Rossville Street.

5.3.5 Legitimacy of the arrest operation

Mr Harvey raised the following points in connection with the arrest operation.

· It was so badly planned that within the plan was the contemplation that most of those who would be arrested would be arrested simply because they were in the vicinity of stone throwers.
· Those in charge of the soldiers contemplated a massive campaign of perjury to persuade local magistrates that the people arrested should be convicted.
· There was not sufficient transport to take 50 people to Fort George and the Army had to send for more transport. Mr Harvey asked what hope the Army had of legitimately arresting 300 to 400 rioters. (See para 2.5.2 above.)
· Mr Harvey suggested that the operation was designed to teach the people of Derry a lesson.

5.4 COMMUNICATIONS

During Army operations, communications should be directed through headquarters which ensures that the commander has a complete picture of what everyone on the ground is doing and can maintain command of the troops. In turn the commander would have a duty to keep Headquarters Northern Ireland (HQNI) informed. Brigadier MacLellan's knowledge of what was happening on the ground was dependent on Colonel Welsh's description of events from the helicopter and 1 Para's communications from the ground.

Mr Harvey examined the communication logs to see what Brigadier MacLellan and 8th Brigade believed was happening on the ground. He said that as far as Brigadier MacLellan could tell, the arrest operation was taking place according to his instructions. The fact that the troops are not centrally behind a checkpoint is never relayed to him. 1 Para do not tell him precisely what it is they are doing.

5.4.1 Information relayed to HQNI from 8th Brigade

HQNI are not told that an arrest operation had been authorised. Up until 16:17 they are simply kept informed as to the developments in relation to the crowd and what is happening at the respective barriers.

At 16:17 they are told that the crowd at Free Derry Corner went 'rapidly southwest when 1 Para went in on lift op.' There is no mention of any arrests which might suggest that either 1 Para had stopped or they had been ordered to withdraw.

At 16:26 HQNI are told that there had been an arrest operation but it had been called off and that two civilians had been injured. The log notes that three civilians were dead but that they had not been shot by the Security Forces.

It is not until 17:29 that HQNI are told that the operation had resulted in a 'fire-fight.'

5.4.2 Deficiencies in the Army log and attempts to circumvent Brigadier MacLellan at Brigade HQ

Mr Porter's tape reveals the gaps in the Army logs and Mr Harvey submitted, attempts to circumvent Brigadier MacLellan at Brigade HQ.

Mr Harvey said that Brigade HQ is not put on alert to the fact that anything would go wrong. He also pointed to a series of conversations which excluded Brigade HQ.

At 15:38 a message is passed from 1 Para to 22nd Light Air Defence Regiment (22nd LADR) to be ready to lift barriers 12 and 14. Mr Harvey noted that Brigade HQ is not told about the lifting of the barrier.

Mr Harvey said at this stage, Brigadier MacLellan had no idea that Colonel Wilford and Major Loden have now got Support Company in the Presbyterian Church.

1 Para do not give their exact whereabouts to Brigade HQ. They are unspecific and simply say that they have deployed units 'slightly forward from their original positions in preparation for orders which you may have.'

At 15:55 1 Para ask Brigade HQ for permission to move C Company through barrier 14. They do not tell Brigade HQ that they have already moved Support Company beyond the agreed line of containment.

At 16:09 there is no indication that 1 Para were going to go in or that circumstances made it necessary for them to go in. However the Brigade log states that at 16:07 Brigadier MacLellan gave the instruction to go in. Mr Harvey said that this is peculiar because two minutes later, 22nd LADR ask when they will be going in and are told to just leave it.

Mr Harvey said that if Brigade HQ had given the order to go through barrier 14 then you would have expected Brigade to have contacted the 22nd LADR to order them to lift the barrier.

5.4.3 Brigade HQ's knowledge of events on the ground

By the time that Jack Duddy has been killed, Brigade HQ is simply told that 1 Para are in the area of William Street.

By 16:26 Support Company have shot Jack Duddy, William Nash, John Young, Michael McDaid, Hugh Gilmour, Kevin McElhinney and probably by that time also William McKinney, Jim Wray, Gerard Donaghy, Gerard McKinney and possibly by this time Bernard McGuigan and Patrick Doherty. However all that Brigade HQ have been told is that two civilians are lying wounded or dead in the area of Chamberlain Street.

At 16:36 Brigade HQ are trying to locate C Company and are told by 1 Para that C Company are at William Street/Rossville Street. Brigade HQ are not told that C Company had moved further down.

It is not until 16:54 that Brigade HQ is told where Support Company is. At 17:03 they are told that Support Company fired two rounds. Mr Harvey said that at this time the tactical HQ of 1 Para (responsible for relaying messages to Brigade HQ) would have known that Support Company had discharged over 100 rounds and killed 13 people.

5.4.4 Questions relating to the communications log

Mr Harvey raised the following questions:

· Was the operation carried out in accordance with the plan for 27 January?
· Was an order to go in ever given?
· If an order was given - How was it transmitted?
- What time was it given at?
- On what terms was it given?

Mr Harvey will continue with the rest of his opening statement next week.

The BSI heard two applications this week. Both were for extensions to the extent of legal representation they have been granted.

6.1 Application on behalf of members of the 1972 NICRA executive

The members of the 1972 executive of the Northern Ireland Civil Rights Association (NICRA) currently have legal representation on a limited number of issues in the BSI. They applied to have this representation extended to give them representation throughout the entire inquiry.

They submitted that they would need representation because there are allegations that NICRA is responsible for the deaths.

The Tribunal ruled that, at present, legal representation would be confined to the limited number of issues which it had already been granted. However NICRA have been given the right to have an extra counsel. They are now represented by two barristers.

6.2 Application by Michael Quinn (one of the wounded)

The Tribunal has granted Mr Quinn representation limited to sector four because they believe his participation in the events of the day is limited to this sector. Mr Quinn applied for full representation throughout the entire inquiry.

The Tribunal refused to extend Mr Quinn's representation.

Paragraphs 1 to 2.24 and 6 Mon 13
Paragraphs 2.25 to 2.4.12 Tues 14
Paragraphs 2.4.13 to 4.1 Weds 15
Paragraphs 4.2 to 5.4.4 Thurs 16

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