BLOODY SUNDAY INQUIRY Week 15

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4 - 7 DECEMBER 2000

Most of this week was taken up with applications by the Home Secretary and the Secretary of State for public interest immunity (PII) to be granted to material relating to the Security Services and intelligence sources. This means that the Secretaries of State believe that certain material relating to Bloody Sunday should not be made public because of reasons of wider public interest. The lawyers for the soldiers and the families and wounded all argued that the material should be made public.

The Tribunal also heard evidence from five civilian witnesses.

Transcripts of the hearings can be found at the BSI website at http://www.bloody-sunday-inquiry.org.uk.

Michael McIvor was a newly ordained curate attached to St Mary's Church in Derry at the time of Bloody Sunday.

1.1 QUESTIONS ON BEHALF OF THE TRIBUNAL

1.1.1 Preparations and riots

There were three other priests attached to St Mary's Church, Fathers Rooney, McLaughlin and Carolan.

The security forces would ask Mr McIvor to ask him to go down to the riots to try and disperse the boys when riots were taking place on Saturdays. Mr McIvor said that he had never experienced the rioters being used as cover for gunmen.

Mr McIvor remembers giving details about the place and time that the march was to start at mass on Sunday. He remembers being unclear about where it would end because he knew that it would not be allowed to go the Guildhall.

1.1.2 William Street and the waste ground

Mr McIvor saw about 50 youths throwing stones and bottles at the soldiers on the GPO sorting office roof from the waste ground on the north side of William Street. He remembers a soldier making a gesture as if to fire his rifle at one of the youths.

He recalls that nothing happened for the next 5 or 6 minutes. Then he heard two shots ring out. He thinks he saw one person fall and remembers that Father Carolan was close him.

1.1.3 Glenfada Park

Mr McIvor made his way to Glenfada Park North and sheltered with a little girl who had been overcome by gas. He said that gunfire started soon after that. They were live shots and he could also hear rubber bullets. It was impossible to tell which direction the bullets were coming from.

He said that no soldiers came into Glenfada Park North during the time that he was there.

1.2 QUESTIONS ON BEHALF OF THE FAMILIES

1.2.1 Preparations

Mr McIvor said that the Church would never have encouraged people to attend the march if they thought that the IRA would use the march as an opportunity to shoot at soldiers.

He said that the parish priest carried out checks before the march. He had spoken to one individual in the Creggan but he could not recall his name. Mr McIvor said that Father Rooney had held a meeting about the march where the priests agreed to find out what was going on. He recalled that the information they received was that it was a civil rights march only.

1.2.2 William Street

Mr McIvor said that he had heard two shots whilst he was in William Street but there could have been more. The march had stopped by the stage that the shots were fired. The street was crowded with marchers. He said that he did not hear or see any petrol bombs or other devices.

1.3 QUESTIONS ON BEHALF OF THE SOLDIERS

1.3.1 Assurances

Mr McIvor said that it was necessary to seek an assurance that there would be no IRA involvement in the march because the parish in which he worked was a no-go area. He said that the 'law and order' in the area was the IRA.

He said that he did not know whether the individual he spoke to was in the IRA. He spoke to him as a parishioner.

Mr McIvor said that he had been present at riots were there were shootings. He said that he had no evidence of civilians clearing a path for a gunman.

1.3.1 William Street

Mr McIvor said that he did not think there was a lot of noise in William Street. He said there was a lot of apprehension in the crowd about what was happening at the bottom of the street. He is fairly certain that the only noise he heard was gas canisters and rubber bullets being fired from the end of William Street.

He said that he did not think that gas was being fired on the waste ground.

1.4 FURTHER QUESTIONS ON BEHALF OF THE TRIBUNAL

1.4.1 Assurances

Mr McIvor said that the individual he spoke to did not give him any assurances. He took on board what Mr McIvor had asked and said that he would get back to him later. He had not got back to him but the priests decided at their meeting that they could recommend the march to their parishioners. He said it was a collective decision within the parish and the priests would have discussed the march with other priests in the various parishes.

2.1 QUESTIONS ON BEHALF OF THE TRIBUNAL

2.1.1 William Street

Mr Curran was at the tail end of the march. He saw soldiers on the roof of the GPO and in the Abbey Taxis building. He saw two soldiers on the third floor of the Abbey Taxis building. He saw boys throwing stones at the soldiers on the GPO roof. He saw the soldiers move from the roof in the direction of Great James Street.

He saw the boys cross over the street and went into the waste ground. He heard shots and saw a rifle sticking out from the window of the third floor of the Abbey Taxis building pointing at Damien Donaghy. He saw Mr Donaghy lying on the ground at the edge of the laundry waste ground.

He thinks there were about two or three shots. The first shot hit Mr Donaghy and the others ricocheted. Mr Curran approached Mr Donaghy and glanced around to see John Johnston. Mr Curran called for help and Father Carolan and Mr Donaghy's friend helped him carry Mr Donaghy part of the way. Mr Curran went back to check on his wife.

Mr Curran said that they decided to go home but had to shelter in the Abbey Park area because of the firing. He saw a wounded man walk past holding his right hand to his right cheek.

2.2 QUESTIONS ON BEHALF OF THE FAMILIES

2.2.1 Damien Donaghy and John Johnston

Mr Curran said that Damien Donaghy had nothing in his hands when he was shot. It was only a matter of seconds between him walking across the road and getting shot.

He had not seen Mr Johnston get shot. He heard him cry out and put his hand to his shoulder and then hobble away.

2.3 QUESTIONS ON BEHALF OF THE SOLDIERS

2.3.1 William Street

Mr Curran said that he did not see any bottles being thrown by the boys on the waste ground. He does not remember rubber bullets being fired when the boys were throwing stones.

3.1 QUESTIONS ON BEHALF OF THE TRIBUNAL

3.1.1 William Street

Mrs Curran said that she did not see Damien Donaghy throwing stones but he had been in the company of boys who had.

Mrs Curran located the position that Mr Donaghy fell as in the laundry waste ground. She said that he had been walking across the road with nothing in his hand when he was shot. She heard two shots and saw a bullet bounce.

3.1.2 Fahan Street West

Mrs Curran was running towards Fahan Street West when she had to shelter behind a gable end because of the shooting. She saw a man running in the direction of the Little Diamond with his hands up to his face, which was covered with blood.

Mrs Curran said that the shots seemed to be coming from the direction of Free Derry Corner or the Derry Walls.

3.2 QUESTIONS ON BEHALF OF THE SOLDIERS

3.2.1 William Street

Mrs Curran said that she may have thought that Mr Donaghy had been hit by a ricochet bullet when she gave her statement in 1972. She thinks she may have seen the ricochet and then Mr Donaghy fall.

3.2.2 Fahan Street West

Mrs Curran said that she thought the bullets she heard where coming from Free Derry Corner because of the sound they made.

4.1 QUESTIONS ON BEHALF OF THE TRIBUNAL

4.1.1 William Street

Mr Doherty saw youths throwing stones at the Abbey Taxis building and the Presbyterian Church. He became aware of rubber bullets being fired by soldiers on the flat roofed building adjacent to the Presbyterian Church.

He heard a bullet and turned around to see a boy fall on the laundry waste ground. He looked at the Abbey Taxis building and saw two soldiers in the ground floor window nearest to William Street. He got the impression one of the soldiers had just fired. Mr Doherty said that the second soldier was dancing with his arms in the air.

Mr Doherty saw another man fall.

He walked down William Street and shouted to Dr McClean that two people had been shot.

4.1.2 Columbcille Court

Mr Doherty stayed at the junction of Rossville Street and William Street for 5 to 10 minutes. He then heard vehicles and ran into a house in Columbcille Court. He said that he saw William McKinney and indicated to him that he should come inside the house. Mr McKinney pointed to his camera. Mr Doherty said that there was shooting going on when this happened.

4.1.3 Assurances

Mr Doherty said that he had learned that the IRA would stay away from the march through common talk. He said that people thought that the IRA would stay in Creggan that day.

4.2 QUESTIONS ON BEHALF OF THE SOLDIERS

4.2.1 IRA

Mr Doherty said that he did not think there were many Provisionals in Derry before Bloody Sunday. Mr Glasgow asked him who had been shooting the soldiers and he said that one man can kill a lot of people.

4.2.2 1972 statement

Mr Doherty had not mentioned that the bullet that hit Damien Donaghy had whizzed past his head in his 1972 statement. Mr Doherty said that he was still in shock and that he had had to inform Barney McGuigan's wife and his own wife that Mr McGuigan had been shot. (Mr Doherty was Mr McGuigan's brother in law.)

Father George McLoughlin was the parish priest at St Mary's Church.

5.1 QUESTIONS ON BEHALF OF THE TRIBUNAL

5.1.1 Preparations

Father McLoughlin does not remember holding any consultations about the march. He said that his decision to recommend the march was an individual one. He was not aware of any general understanding that the IRA would stay away from the march.

Mr Clarke put Mr McIvor's evidence that the priests had carried out extensive checks before the march, to Father McLoughlin. He said that he had spoken to a few parishioners. They would have been leaders in the community and he did not know them to be involved in any organisations.

He said that priests at St Mary's would not have made any statement at mass to encourage people to go to the march. The parishioners were left to make their own minds up. He did not give out a time or place for when the march was due to start.

He had not received any type of assurance from the IRA. He said that the Derry Journal at the time had printed that statement from the IRA.

5.1.2 William Street

Father McLoughlin noticed soldiers on the roof of the GPO building and on the roof of the Presbyterian Church. When the march stopped, he began to move forward through the crowd towards barrier 12. He then retraced his steps back up William Street.

He saw youths throwing stones at the soldiers in the Presbyterian Church and GPO area. He moved away because of the effects of the gas and started to make his way to Columbcille Court when he heard live rifle fire. He saw Damien Donaghy who had fallen to the ground 6 or 7 yards from him.

He recalls an interval and then hearing two shots. He thinks that the shot that hit Damien Donaghy came from the Presbyterian Church.

5.1.3 Columbcille Court

He went to Mrs Shiels' house and stayed there for about 20 minutes. He recalls Dr McClean treating two people inside the house.

A message came through that a priest was needed in Kells Walk and Father McLoughlin went to the door of Mrs Shiels' house and saw 7 or 8 soldiers adjacent to her door. He said that the soldiers had said that if anyone came out of the house they would be shot. Father McLoughlin said that John McLaughlin's description of the soldiers' behaviour and language is accurate. (John McLoughlin said that he asked a soldier to let them out of the house because they needed to get an ambulance for two wounded people. The soldier said 'let the fucker bleed' and threatened to blow his brains out if he came out of the house.)

5.1.4 Kells Walk

Father McLoughlin reached a flat in Kells Walk. From the living room window he could see two APCs and a soldier firing towards the south end of Rossville Street.

5.1.5 Abbey Park/Glenfada Park

Father McLoughlin made his way to what he thought was Glenfada Park North. He saw two bodies and prayed over them. He believed that they may have been Gerard McKinney and Gerard Donaghy because that is what he was told later.

5.2 QUESTIONS ON BEHALF OF THE FAMILIES

5.2.1 Role of funerals

Mr Topolski asked Father McLoughlin whether it was possible that bodies may have been removed and buried in secret. Father McLoughlin said that it would be totally impossible. He said that the people in Derry have great regard for their dead and for burying the dead. He said that there is no way families would have tolerated a member being shepherded away and buried without the families' knowledge or without the participation of the church.

5.2.2 Jim Wray

Father McLoughlin administered the Last Rites to James Wray in 8 Abbey Park. He said that Mr Wray may have still been alive although by that time he was certainly dying.

5.3 QUESTIONS ON BEHALF OF THE SOLDIERS

5.3.1 Preparations and the IRA

Father McLoughlin said that the priests did not hold a meeting about the march. They held weekly meetings where they would discuss pastoral duties.

He said that Father Rooney would never have advised anyone to go on the march from the altar.

Father McLoughlin knew Father Bradley as they were from the same town. He disagreed with Father Bradley's statement that more confessions were heard on the street than in the confessional box.
Father McLoughlin said that he did not think that the parishes were densely populated with Provisionals. He did not know who was running the Provisionals or the Officials.

There was nothing unusual in Father McLoughlin carrying his holy oils to the march. He always carried holy oils.

5.3.2 Columbcille Court

Father McLaughlin said that there were lots of people in Mrs Shiels' house. He heard heavy fire from outside the house but has no recollection of hearing shooting coming from Mrs Shiels' house towards the soldiers.

When Father McLaughlin tried to leave Mrs Shiels' house he was threatened by a soldier. He said he is sure that the incident took place in Columbcille Court and that it took place after the heavy shooting. Mr Lawson asked him why Father Carolan had not mentioned having trouble with the soldiers when he left Mrs Shiels' house. Father McLoughlin suggested it may have been because they were going in different directions.

5.3.3 Rossville Street

Father McLoughlin said he had not seen gunmen on the roof of the Rossville flats. The only reason he looked in that direction was because he recalled in 1969 young people had used the roof of the flats as a place to launch petrol bombs. He had scanned the whole area of the waste ground and the Rossville flats.

Father McLaughlin's Eversheds statement said that in 1969 the roof of the flats had been used by republican snipers. Father McLoughlin said that he had overlooked that remark when he had signed the statement. It had not been in his original statement. He said that he had no knowledge of republican snipers operating from the roof of the Bogside flats.

5.4 FURTHER QUESTIONS ON BEHALF OF THE TRIBUNAL

Father McLoughlin said that Father Carolan would not have made an announcement about the march at mass. He said that Father Carolan had told him that he was not going on the march and had asked him not to go. He met Father Carolan later on the march and thinks that he changed his mind when Father McLoughlin had told him that he was going.

The Tribunal had to decide on two claims for PII for certain intelligence and Security Service material. The claims are made by the Home Secretary, Jack Straw and the Secretary of State for Defence, Geoffrey Hoon. Mr Clarke introduced the applications by explaining what PII is, the procedures adopted by courts and the nature of the two claims before the Tribunal.

6.1 GENERAL BACKGROUND TO PII

6.1.1 What is PII?

Mr Clarke explained that, sometimes, it is held to be in the public interest for documents not to be produced at court. He used the example of the NSPCC to show when this might happen. On occasions, the courts will not compel the NSPCC to reveal the identity of informants about child abuse even if that information could help someone defend himself or herself against a criminal charge. The court does this because it sees it as being in the public interest to protect the sources of information on abuse. (If the identity of an informant is not kept confidential then the supply of information can dry up.)

Mr Clarke explained that there is always a tension between:

· The person seeking the information - who will want the information in order to secure justice.
· The person who does not want the information to be made public - who is thinking about the wider implications for the general public if the information is revealed.

6.1.2 How do the courts resolve this matter?

The courts ask a series of questions:

· Is the material relevant to the case in hand?

In this instance both the Home Secretary and the Secretary of State for Defence accept that the material is relevant to Bloody Sunday.

· Is the material such that it is in the public interest that it should not be disclosed in public?

Sometimes it may be the case that the harm to the public interest has to be accepted because the importance of disclosure is sufficient to outweigh any harm, which would be done by disclosure.

· Who decides where the balance should lie?

The minister of state decides whether the harm of disclosure outweighs the public interest in disclosure. If he or she decides that it does, they issue a PII certificate.

The final decision is made by the court or tribunal who judge whether public interest in disclosure outweighs any public interest in non-disclosure.

6.1.3 Practice in criminal and civil proceedings

Usually a PII claim is made in criminal or civil proceedings.

In criminal proceedings, the courts tend to find in favour of disclosure whenever the material is needed for the defendant to defend himself against a criminal charge.

In civil proceedings, the courts are more willing to accept the claim for PII because there is no question of someone being wrongly convicted.

If the material is not disclosed then it is not used again in the proceedings.

6.1.4 Position of the BSI

The BSI is not a criminal or civil trial. Mr Clarke said that it would be possible for the Tribunal to consider the material even if it was not disclosed fully in public. However the Tribunal has made it clear that it is reluctant to withhold any material that is available to it. It will only decline to do this for compelling reasons.

The Tribunal has to decide:

· Whether there would be real harm to the public interest if the material is disclosed.
· Whether that harm to the public interest is sufficient to outweigh any countervailing public interest in favour of disclosure.

6.2 THE PII CERTIFICATES BEFORE BSI

Both of the certificates are divided into two parts, an open part and a sensitive schedule. All of the interested parties have a copy of the open parts. The sensitive schedules give further information on why the minister thinks the material cannot be disclosed. Only Mr Clarke and Mr Tate (solicitor to the BSI) have seen the sensitive schedules.

6.2.1 Claim by the Home Secretary

The material that the Home Secretary does not want to be disclosed falls into three categories.

· The 'Infliction' material

'Infliction' was a security service agent who, it is suggested, said in a de-briefing that Martin McGuinness was the first to open fire on Bloody Sunday. The material relates to what Martin McGuinness is said to have said.

The BSI has these documents in redacted form. There are two documents that the BSI does not have.

· The 'Observer B' material

'Observer B' was a security service agent who said that he saw IRA auxiliaries drilling in Glenfada Park before Bloody Sunday.

· Security Service Officers A, C, David, James and Julian

The Home Secretary wants to withhold information on the identities of these security service officers. (Officer A is the only serving officer.)

6.2.2 Claim by Secretary of State for Defence

The Secretary of State for Defence considers there is a continuing threat from terrorist organisations. He is asking that a report be withheld which would identify the intelligence source. He claims that the work of the Security Forces would be frustrated and serious damage could be caused to national security.

6.3 COMPETING INTERESTS

Mr Clarke outlined the competing interests the Tribunal would need to consider.

6.3.1 The public interest in favour of disclosure

· The public interest in the Tribunal's ability to investigate Bloody Sunday by reference to all the available material to enable it to make a fully informed findings of fact.
· Public interest in being fair to all the participants in the BSI.
· Public interest in transparency and openness to assist in securing public confidence in the eventual findings of the BSI.
· The public interest which informed the establishment of the BSI by a resolution of both Houses of Parliament.

6.3.2 Public interest against disclosure

The Home Secretary believes that if the material is disclosed to anyone beyond the Tribunal it will cause real harm to:

· The work of the Security Service because it relates to their methods, sources and operations.

The Secretary of State for Defence believes that if the material is disclosed to anyone beyond the Tribunal it will cause real harm because:

· It would be possible for terrorists to identify the intelligence source and take counter measures making the intelligence useless.
· It would undermine the process by which intelligence is acquired and would frustrate the work of the Security Forces and cause serious damage to national security.

6.4 PROCEDURE FOR THE APPLICATION

The Tribunal need to decide whether they have the authority to hear the PII applications.

If they decide they can hear the applications, they then hear legal arguments from the interested parties.

The Tribunal will then decide whether they should read the sensitive schedule in private.

The Secretaries of State have also asked that the Tribunal hear some of their arguments in private. They claim that to fully explain why the public interest would be harmed would in itself cause the harm that secrecy is trying to avoid. Only the Tribunal, Mr Clarke and Mr Tate (Solicitor to the BSI) would be allowed to attend. Mr Clarke said that the Tribunal would need very strong reasons to be persuaded to hold a private hearing.

6.5 SUBMISSIONS ON WHETHER THE TRIBUNAL HAS AUTHORITY TO HEAR A PII APPLICATION

6.5.1 On behalf of the McGuigan, Nash and Gillespie families

Mr Mansfield said that it is not clear whether the 1921 Tribunals of Inquiry Act (1921 Act) gave the Tribunal the authority to decide a PII application. He pointed to practical difficulties which could arise during the BSI such as the possibility that questions would be disallowed.

6.5.2 On behalf of the families represented by Madden & Finucane Solicitors

Mr Treacy supported Mr Mansfield's submission.

6.5.3 The Tribunal's Ruling

The Tribunal ruled that Mr Mansfield was right to raise a note of caution but they are firmly of the view that they do have authority under the 1921 Act.

The Act states that the Tribunal has the same powers, rights and privileges as vested in the High Court. These powers include the right to entertain PII applications.

6.6 HUMAN RIGHTS ARGUMENTS

All the lawyers used the Human Rights Act, which came into force in October 2000, in their submissions to the Tribunal. This legislation brings the European Convention on Human Rights into domestic law. All of the lawyers used the judgments of the European Court of Human Rights (ECtHR) to support their submissions.

Lawyers for the Secretaries of State argued that it would be unlawful for the BSI to require the release of information which it knew or ought to have known would create a 'real and immediate' risk to life (Article 2) or real risk of torture (Article 3) at the hands of terrorist organisations

Article 2 also imposes an obligation on the state to provide an effective, official investigation into deaths at the hands of the agents of the state. Mr Clarke noted that this right is of considerable and direct importance to the workings of the Tribunal.

6.7 SUBMISSIONS ON BEHALF OF THE HOME SECRETARY

Phillip Sales appeared on behalf of the Home Secretary, Jack Straw. He asked that the Tribunal not disclose the material that is covered by the PII certificate. He said that the Home Secretary acknowledged the importance of the BSI carrying out their role as transparently as possible.

6.7.1 The Tribunal's obligation in any balancing act

Mr Sales argued that the Tribunal is under the same obligation as domestic courts in that they have to take the human rights context into account in any balancing act. He said that ECtHR case law said that it is legitimate to take account of wider national security concerns in their overall assessment of the public interest.

6.7.2 Article 2 and Article 3 rights

Mr Sales said that the substantive rights in Article 2 and Article 3 are non-derogable. He said that the implied procedural rights in Article 2 could not outweigh the substantive Article 2 right.

6.7.3 ECtHR strikes a balance with other public interests

Mr Sales said that when dealing with procedural rights, the ECtHR will strike a balance with other public interests which includes national security.

He used the case of Fitt v UK as authority for showing that a non-derogable right to a fair trial (Article 6) can be qualified by interests such as national security. He said that the same reasoning could be applied to Article 2 procedural rights.

Mr Sales said that it is legitimate for the courts to take into account wider considerations of national security in performing the balancing exercise.

He suggested the Tribunal consider the procedures which are available within the context of the Tribunal proceedings to protect individuals and also have regard to the interests of family members.

6.7.4 Substantive and Procedural Article 2 rights

McCann v UK is the main authority on implied obligations under Article 2. PII certificates were used during the inquest into the deaths of the three people killed by security forces in Gibraltar. Material was excluded on national security grounds by the PII procedure. The ECtHR held that the inquest had satisfied the Article 2 procedural rights in that it was an adequate and sufficient investigation into the deaths. Mr Sales used this to argue that procedural Article 2 rights are similar to Article 6 rights in the sense that they can be qualified.

6.7.5 Basic principles

Mr Sales said that the basic principle underlying the whole European Convention of Human Rights is to try and strike a balance between the interests of the individual on the one hand and the general interest of the community at large on the other.

6.7.6 The Human Rights Act

The balancing exercise has to be read in the light of the Human Rights Act. Public authorities (including courts and Tribunals) now have a statutory obligation imposed on them by the Human Rights Act that they are not to act incompatibly with anyone's Convention rights.

Mr Sales said that it would be unlawful for a public body to release information into the public domain that would constitute a breach of the fundamental human rights of the person involved. In other words, the Tribunal cannot do anything to breach the substantive aspect of Article 2 and Article 3 rights.

6.8 SUBMISSIONS ON BEHALF OF THE SECRETARY OF STATE FOR DEFENCE

Ian Burnett QC appeared on behalf of Geoffrey Hoon, the Secretary of State for Defence who is applying for a single intelligence report to be withheld under PII.

Mr Burnett supported the submissions made by Mr Sales.

6.9 UNDERTAKINGS AND ASSURANCES FROM THE SECRETARIES OF STATE

Both Mr Sales and Mr Burnett gave the Tribunal an assurance that none of the material that is the subject of the PII claims has been supplied to any of the soldiers, either directly or indirectly. They also gave an undertaking that there would be no disclosure of the material unless or until the Tribunal directs.

6.10 SUBMISSIONS ON BEHALF OF THE FAMILIES AND WOUNDED REPRESENTED BY MADDEN AND FINUCANE SOLICITORS

Seamus Treacy QC argued that the material should be disclosed.

6.10.1 The United Nations Resolution

Mr Treacy pointed to a UN Resolution on investigations into suspected cases of extralegal, arbitrary and summary executions. Mr Treacy said that the standards outlined in the Resolution have influenced the ECtHR and should be used as a guide to interpreting Article 2.

6.10.2 Article 2 procedural rights

Mr Treacy said that without Article 2 procedural rights, Article 2 substantive rights would be meaningless. In McCann, the ECtHR emphasised the need for practical and effective safeguards because without them Article 2 would be meaningless.

He pointed to principle 16 of the UN Principles which states that
'The families of the deceased and their legal representatives shall be informed of and have access to any hearing as well as to all information relevant to the investigation.'
Mr Treacy said that this is the best description of an Article 2 procedural right.

He accepted that, in certain cases, it may be appropriate to take measures to protect the safety of witnesses. However that measure cannot deprive others of their Article 2 rights.

Mr Treacy cited the Supergrass Trials in Northern Ireland. He said that at no time was it suggested that the identity of the Supergrass should be withheld from those who were standing trial. The fact that the Supergrass was at risk could not have been allowed to subvert the entire trial process.

6.10.3 No interference with Article 2 for reasons of national security

Mr Treacy applied the reasoning of the case of Fitt v UK to argue that neither procedural or substantive Article 2 rights can be interfered with for reasons of national security. He said that Fitt made it clear that you cannot withhold relevant evidence from the defence, if it will interfere with the Article 6 right to a fair trial.

6.10.4 Level playing field

Mr Treacy said that the Secretary of State for Defence represents the interests of the Army and should not be considered to be a disinterested party.

He said that if the application by the security services succeeds, the Tribunal would have access to material that is central to Bloody Sunday. This would mean that the parties were not operating on a level playing field.

Lord Saville pointed to the 1921 Act which entitles the Tribunal to exclude the public if it considers it in the public interest. He said that this enables the Tribunal to take account of matters in reaching its conclusions, which the Public are not privy to.

6.11 SUBMISSIONS ON BEHALF OF THE McGUIGAN, NASH AND GILLESPIE FAMILY

Mr Mansfield said that if the Tribunal does decide that the substantive Article 2 rights prevail over the procedural rights then two matters would arise.

· If the Tribunal decides not to look at the material, it should play no part in the findings of the BSI.
· It would not be right for a public inquiry to reach conclusions based on material that only certain people knew about.

Lord Saville said that it did seem odd that the Tribunal would be asked to ignore what could, in effect, be the answer to the very inquiry it is conducting.

Mr Mansfield suggested that the Tribunal looked at the material to see if it matched the description given on the PII certificates.

6.12 SUBMISSIONS ON BEHALF OF THE WRAY FAMILY

Lord Gifford said that the Tribunal would have to balance the prejudice to the rights of the families with the prejudice to those who may be at risk. He said that national security as a concept can be grossly misused and used the Matrix-Churchill trial as an example of this.

Lord Gifford made the following points:

· The Tribunal must make an assessment of the degree of harm to individuals which is being claimed by the Secretaries of State.
· They have to assess whether that risk is real or fanciful.
· If the risk exists, the Tribunal have to take into account whether the risk can be averted or minimised by measures to be taken either by the authorities or the Tribunal.
· Even if there is a real risk to the lives of any individual from the disclosure of the material it still may be the Tribunal's duty to balance that risk against the requirements of openness or the need to publish the material because it is so compelling.

6.13 SUBMISSIONS ON BEHALF OF MICHAEL BRIDGE AND MICHAEL BRADLEY

Brian Kennedy supported Mr Treacy's submissions and said that the confidence and trust of his clients is a constantly fragile entity. He said that his clients are painfully conscious of any attempts by the Security Service and the Government agencies to cover up facts that could determine the truth of what happened on Bloody Sunday.

6.14 SUBMISSIONS ON BEHALF OF THE SOLDIERS REPRESENTED BY ANTHONY LAWTON

David Lloyd Jones QC argued that the material should be made public so that all the interested parties can test it with the other evidence. He said that it should also be made public as part of the process of building public confidence in the BSI's procedures and the final conclusions. He said that even if the Tribunal does decide not to make the material public, they should still take it into consideration when reaching their conclusions.

6.14.1 Criminal test should apply in balancing exercise

Mr Lloyd Jones argued that the Tribunal should apply the criminal test in deciding whether the material should be disclosed. He referred to the conclusions of the Scott Report which suggest that the deciding factor of a PII claim in a criminal case is whether the documents may be of assistance to the defence. Mr Lloyd Jones said that this has not been altered by the Human Rights Act.

6.14.2 BSI possesses features of criminal proceedings

Mr Lloyd Jones said that very serious allegations of criminal conduct are made against some of the soldiers. The issues that the Tribunal will at some stage have to rule include issues of criminal liability. A finding that a soldier fired and killed someone without justification would be a finding of murder. Mr Lloyd Jones said that, to the soldiers, it would be the same as a verdict of murder.

6.14.3 Tribunal should take full account of the material

The Tribunal should take full account of the material in its search for the truth, even if they decide not to make it available to the other parties. The Secretaries of State believe that the material goes to issues of central importance to Bloody Sunday.

The material relates to the activities of security service agents who claim that civilian gunmen were in the Bogside on Bloody Sunday. Mr Lloyd Jones said that the importance of this evidence is increased because the BSI is struggling to get direct evidence from members of the IRA. He said that it is likely that the material will include features which show that the material is genuine intelligence.

6.14.4 The function of the interested parties in the BSI

Mr Lloyd Jones said that the lawyers for all the interested parties have an important role to play in the BSI. They are present to ensure that the evidence placed before the BSI is fully tested. He said that in order to fulfil this function effectively, the lawyers must be provided with the same material as the Tribunal.

6.14.5 Operational Efficiency of the Security Service

The events of Bloody Sunday happened 29 years ago. Mr Lloyd Jones said that it is highly improbable that the operational efficiency of the Security Service would be impaired by the release of the material.

6.14.6 The duty to discover the truth

In setting up the BSI, the Government gave the Tribunal the duty to discover the truth about Bloody Sunday in order to restore public confidence. Mr Lloyd Jones said that the Government must have appreciated what that would involve. They must have appreciated that it would require a public investigation into the Security Service in Derry in 1972. He said that it would not be in accordance with the spirit in which the BSI was set up or with the fulfilment of its purpose if it withheld evidence from the interested parties.

6.15 SUBMISSIONS ON BEHALF OF REMAINING SOLDIERS

Gerard Elias QC and Sir Allan Green QC supported the submissions made by Mr Lloyd Jones.

6.16 SUBMISSIONS MADE BY MR CLARKE

6.16.1 Review of the case law

Mr Clarke reviewed the case law used by the lawyers in their submissions.

He noted that whilst the European Court is prepared to limit the production of certain material, there is no example of them doing this on the grounds of national security when it would mean an unfair trial.

Mr Clarke said that the state must do all that can reasonably be expected to avoid a real and immediate risk of life to an identified individual. (Osman)

The court must consider other public interests involved and strike a balance. An applicant has a substantive right to have all that can reasonably be expected of the public authority done to avoid a risk to life. Mr Clarke said that because the right to life is the most fundamental obligation of the Convention, any consideration that militates against taking a measure that would avoid or limit the risk to life, must be a compelling one.

Mr Clarke used the example of the Supergrass. He may well be at risk of life and limb. Would the state not receive his evidence because of that risk to his life?

Mr Clarke said that the procedural Article 2 right is the right to some form of effective official investigation when individuals have been killed as a result of the use of force by agents of the State. (This was outlined in McCann.) The ECtHR did not accept that a serious difference between the UN Principles on the investigation of extralegal and summary executions and the actual investigation meant that procedural Article 2 rights had been infringed.

The European Convention on Human Rights is more concerned with the rights of those who are still living than those who have died. In investigating a death, a public authority cannot avoid doing all that can be reasonably expected of them to avoid a real and immediate risk of another death. Mr Clarke said that if the Tribunal is persuaded that to publicise the material would create a real risk of death or torture, which the Tribunal could avoid by not publicising the information, it should not publish it. However the Tribunal also needs to consider whether there are other ways of avoiding the risks.

6.17.2 Matters for the Tribunal to consider

The Tribunal could decide to publish the material if they were satisfied they could not carry out an effective investigation without publishing it and if publishing it would not entail a risk to life which the Tribunal could reasonably be expected to avoid.

The Tribunal could postpone making a decision if they had any doubts about whether not publishing the material would render their investigation ineffective.

Mr Clarke noted Mr Lloyd Jones' submissions that the soldiers faced the next best thing to a criminal charge. The Tribunal should disclose anything that would help the soldiers rebut a criminal charge, unless to do so would imperil life or limb. Mr Clarke said that if the material might help the soldiers' defence it is a powerful factor in favour of disclosure.

6.18 PROCEDURE FOLLOWING SUBMISSIONS

6.18.1 Tribunal to inspect the material

Mr Clarke suggested the Tribunal look at the material. He said that some of the speculation about what information is in the documents might turn out to be unfounded.

6.18.2 Tribunal to consider a series of questions

The Tribunal will ask itself whether publishing the material would create an immediate risk to life of identified individuals.

If the answer is yes - the Tribunal need to consider whether non-disclosure is a measure which the state could reasonably be expected to take to avoid that risk.

If any of the material does not engage Article 2 rights, the Tribunal needs to ask whether the information is sufficiently important to the soldiers who face very serious allegations or to the search for the truth as to outweigh any considerations facing non-disclosure.

Mr Clarke suggested that the last resort would be disclosure only to the Tribunal members. It would be unsatisfactory to all the interested parties but Mr Clarke suggested that it may be the only option. The Tribunal would not be able to ignore this material because of their duty to seek the truth. However this would not resolve the issue of how much weight should be attached to the material. It would be untested - the Tribunal members could not ask any of the witnesses about it.

6.18.3 The search for the Truth

Lord Saville asked Mr Clarke what the position would be if the Tribunal concluded that there could be no effective investigation into the events of Bloody Sunday, without the production of the material.

Mr Clarke said that the ECtHR case law said that the material would have to be disclosed or the only other alternative would be for Parliament to stop the BSI. Mr Clarke noted that if Parliament did stop the BSI, it would be in breach of its treaty obligations.

The Tribunal retired to look at the documents with the sensitive schedules. Mr Clarke took out the sensitive submissions.

Lawyers for the Ministry of Defence were present at the Guildhall for the PII hearing. Lord Saville took the opportunity to ask them about the answers that are still awaited to questions that the families' lawyers asked in June.

Lord Saville said that not all of the questions had been answered and that those that had were in a very general nature. He asked the MoD to provide a list of all the questions with the answer to each printed directly underneath.

The MoD said that they hoped to provide answers within the next few days.

Monday 4 paras 1 - 5.1
Tuesday 5 PII hearing
Wednesday 6 paras 5.1 - 5.4 and PII hearing
Thursday 7 PII hearing

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