BLOODY SUNDAY INQUIRY Week 9

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12 - 15 June 2000

This week Christopher Clarke QC completed sector four, the shooting in Glenfada Park and Abbey Park. Most of the week was taken up by interlocutory hearings, where the Tribunal makes decisions on how the Inquiry should be conducted, after hearing arguments from the lawyers. Administrative matters are also dealt with at these hearings. At the end of the week a series of videos were shown.

9.21.1 Discrepancies in the evidence of Soldier H

Mr Clarke pointed out the following discrepancies in Soldier H's evidence;

· The position of his third target.
· The number of gunmen he saw behind the barricade.
· The number of nailbombs he saw when he fired at his first target.
· Whether his second target was about to throw a nailbomb when he fired at him.

9.21.2 Soldier H's statement to the BSI

Soldier H worked in a group with Soldiers E, F and G. He was paired with Soldier E. He said that one civilian threw a nailbomb from the south of the courtyard. It did not explode. He then saw a youth holding a smoking object who looked as if he was about to throw it. He fired two shots and hit the youth. He cannot recall what F, G and E were doing.

He said that another youth ran out, picked up the bomb and ran. Soldier H fired one shot and hit him in the shoulder. He did not fall and carried on running.

He became aware that Soldier F and G had moved forward into the open area of the courtyard. He had a respirator on so he could only see clearly straight ahead of him. He said he saw the muzzle of the rifle poking out of the window on the southern block of Glenfada Park North. He could see a shape moving behind the window. He thought it was a sniper who would shoot F and G. He fired at the window. He fired 19 shots and his magazine ran out. He clipped a new magazine on and fired at the gunman again. He does not remember seeing the rounds hit the windowpane. He does not remember seeing Soldiers F and G firing or any soldier going through the gaps in the southeast or southwest corners.

9.21.3 Evidence of Corporal E

Corporal E said that he moved from the low wall at Kells Walk into Glenfada Park. He said there was a crowd of 40 people throwing rocks, stones and a nailbomb. He said a petrol bomb landed 10 metres in front of him. He fired 2 shots at a man in the southeast corner who was holding a nailbomb. The man fell to the ground and Corporal E said the nailbomb exploded. He saw three people, including the man he shot, fall. He said that after the man fell, the crowd were still aggressive, some remained and some ran.

9.21.4 Discrepancies and questions raised by Corporal E's evidence

· Who did Corporal E hit in the southeast corner? There are two candidates, Mr O'Donnell was hit in the shoulder. During the Widgery Inquiry, Soldier E denied remembering Mr O'Donnell who had been forced to march to Kells Walk with his hands over his head after he had been shot. Mr Gillespie had a bullet graze to his scalp but this does not tally with Corporal E's description of his second target.
· What happened to the man Corporal E shot?
· Corporal E's evidence contains no reference to Soldier H's 19 shots at the window.
· Whether he saw his target light the nailbomb.
· Originally he thought that he shot Michael Kelly in Glenfada Park and later said that it was Gerard Donaghy.

9.21.5 Evidence of Lieutenant 119

Lieutenant 119 was the officer in command of the Anti-tank platoon. He said that he sent Soldiers E and F into Glenfada Park to cut off a gunman in the southeast corner. He followed Soldiers E, F and G. He saw Soldier F fire two rounds down the east side of Glenfada Park North but did not see who or what he was firing at.

He saw three civilians lying in the southwest corner. He did not see Soldiers E or G fire. He said when the order to withdraw came, his platoon took 20 or 30 people from the gable end and handed them to the Composite platoon.

The APCs pulled up in line with the north of block 1 and the north of Glenfada Park North. When he reached the command vehicle, Soldier F was in front at the right-hand side and Soldier G was on the left-hand side. He heard firing from north of block 1 and saw Soldier F fire two rounds.

9.21.6 Points arising from Lieutenant 119's evidence

· Whether he ordered Soldiers E and F to go into Glenfada Park. (Soldier E said he went in on his own initiative.)
· He did not see Soldiers E or G fire.
· No mention of Soldier H's 19 shots.
· He recalls Soldier J in Glenfada Park.

In his statement to the BSI, Soldier 119 says he does not remember shots fired by any of his men.

9.21.7 Evidence of Lance Corporal J

Lance Corporal J said that after he had fired at a man at the south of block 1 of the Rossville flats, a Platoon Commander ordered him to move into Glenfada Park to arrest people. He saw Soldiers F and G fire at two men in the southwest corner of Glenfada Park, both men fell. He said the men had been carrying metallic objects which he thought were nailbombs. In his BSI statement he can no longer remember anything that happened after he had fired at his second target.

9.21.8 Private 023

Private 023 was not called to give evidence at the Widgery Inquiry although he says he fired a live round on Bloody Sunday. He said he was behind Lance Corporal F and Private G. His memory is only of firing in the general area of Glenfada Park. His shot was not in Glenfada Park North.

9.22.1 Gunner 030

Gunner 030 was on the platform on the walls. He told the Widgery Inquiry that he saw a youth through the gap between blocks 2 and 3 kneeling behind a wall in the southeast corner of the Rossville flats. He said the youth was firing in the direction of William Street. Gunner 030 was going to shoot the youth but decided not to because there were too many people around.

Gunner 030 also saw a body lying near the telephone box at the corner of block 1 and 2 which is probably Bernard McGuigan. He said he heard a burst of low velocity automatic fire which he took to be a Thompson submachine gun.

He saw a gunman with what looked like a Thompson submachine gun in the alleyway leading towards Abbey Park. The gunman fired a burst in a northerly direction. Soldier 030 saw a soldier run to the central reservation in Glenfada Park and fired three shots towards the gunman.

There were single shots being fired from a position below him on the wall. The soldier at the central reservation turned and fired a single shot in Gunner 030's direction. He said that he could not look down but he could see a body by the trees in front of block 2. He also saw a body on the forecourt of the Rossville flats. Mr Clarke suggested that these two bodies were Patrick Doherty and Jack Duddy.

Mr Clarke noted that the soldiers in Glenfada Park only reported seeing civilians carrying weapons. None of them said that they were actually fired on by civilians in this area.

Soldier 030's account to the BSI is different from his 1972 account. In his account to the BSI, he said he saw a gunman fire two or three shots through the gap between blocks 2 and 3 of the Rossville flats in a northerly direction.

He saw a second gunman on the southeast side of Joseph Place. He was wearing combat kit and had long, straight black hair and was carrying a rifle. He said it was definitely a civilian gunman and he believes the gunman fired two shots to the city walls.

He says that he did not see any soldiers firing live rounds that day. He did not hear any machine gun fire, or any explosions of nailbombs, blast bombs or petrol bombs.

9.22.2 Soldier 227

Soldier 227 was at the Charlie Observation Post (OP) on the city walls. He said he heard two bursts of automatic fire when the arrest operation was going on. He could not see anyone using a machine gun. He heard firing at the rubble barricade. When the arrest was being made in the Glenfada Park area, he heard three or four pistol shots from the area of the Rossville flats.

He said that he did not see a civilian with a gun or petrol bomb that afternoon. He heard a nailbomb. He saw a soldier kneeling by a lamppost at the southeast of Glenfada Park North fire two shots at the bottom of block 1 by the telephone kiosk.

The evidence from civilians and soldiers conflicts. Below is a summary of the soldiers' accounts, the outcome which would be expected from those accounts and what the actual outcome of events was.

9.23.1 Substance of soldiers' evidence

On the evidence before the Widgery Inquiry, Soldiers F and G came into the northeast corner of Glenfada Park North and found two men facing them in the southwest corner. Soldier G said that the two men had M1 carbines. Soldier F said that one had a fizzing nailbomb. Soldier E said that a crowd were throwing various missiles.

Soldier H said that Soldier G fired three shots and hit one of the riflemen. Soldier F said that he fired two shots hitting the nailbomber in the arm and chest. At least two men fell, perhaps three. Soldier H said that he fired two shots at a youth throwing a fizzing object and hit him with the second shot.

Soldier F said that a crowd ran past the two riflemen into the southwest alley and the rifles disappeared. A youth in blue denim ran over and picked up the nailbomb. Soldier H said that he shot the youth in the arm and the shoulder. Soldier E fired two shots at a man in the southeast corner who had thrown a petrol bomb and was about to throw a nailbomb.

Soldier G went west and Soldier F went east. Soldier F fired two shots from the southeast corner at a man with a pistol at the far end of block 2. According to Soldier H, he fired 19 shots into 57 Glenfada Park.

There was a recall and arrests of the people at the southeast gable end.

9.23.2 What the soldiers' accounts would mean

On the soldiers' account, Mr Clarke said at least four or five people would be dead with the following characteristics;

In the southwest corner:

· Someone shot by Soldier G facing towards him or the barricade.
· Someone shot in the right arm and chest by soldier F.
· Someone shot whilst throwing a nailbomb by Soldier H, facing north or to the side.
· A youth in blue denim shot in the arm or shoulder by Soldier H.

In the southeast corner:

· A man shot in the front or side by Soldier E.

9.23.3 The known dead and wounded in Glenfada Park

Of the known dead in Glenfada Park:

· James Wray was shot in the back.
· William McKinney was shot in the right side of the back.

Of the known wounded in the southwest corner:

· Joseph Friel was wounded by a near miss bullet which passed across his chest from left to right.
· Joseph Mahon had an entry wound above the right side of the pelvis.
· These injuries are consistent with a shot coming from right to left. Only Mr Mahon fell in Glenfada Park North.

Of the known wounded in the southeast corner:

· Daniel Gillespie had a bullet graze to the top of his head.
· Patrick O'Donnell had a wound in the right shoulder.

Mr Clarke said that these wounds do not tally with the wounds to be expected from Soldier E's evidence.

9.23.4 Of the known dead in Abbey Park

Gerard McKinney and Gerard Donaghy may well have been shot in Abbey Park so they can be ruled out as candidates for those who sustained injuries in Glenfada Park.

· Gerard McKinney was shot below the left armpit from left to right.
· Gerard Donaghy was shot in the left side of his abdomen.

9.23.5 Other points relating to soldiers' evidence

None of the soldiers account for the deaths of anyone in Abbey Park. Even though Soldier G's bullet killed Gerard Donaghy, his evidence does not account for Mr Donaghy's death.

It is difficult to account for the death of James Wray by reference to the soldiers' evidence.

No one confirms Soldier H's account of the 19 shots to the window.

· Number of people killed and wounded

The number of people killed or wounded does not tally with the number of bullets fired.

· Number of hits according to soldiers' evidence

9.23.6 Points the BSI will have to consider

· That the soldiers' account is correct and they hit who they say they were firing at.
· The soldiers shot at the people they described but missed and hit the dead and wounded instead.
· That it was a mixture of the first two possibilities.
· That something radically different happened.
· That the dead and injured were not shot by soldiers (although of all the soldiers' accounts, only Soldier H said there was firing from civilians in Glenfada Park).
· That the soldiers shot the riflemen and nailbombers as well as the dead and wounded (although that would mean the soldiers fired more shots than they described).

A radically different account of events from a soldier in sector four has been found in a document submitted to the BSI as part of the Irish Government dossier. The BSI does not know where the document containing this account came from but Mr Clarke suggested it appears to be a newspaper archive. References to tape distortion suggest that it is a transcript of a tape-recorded interview.

The document is titled as an interview dated 9 November 1975 which appears to have been held in New York. It deals with Soldier 027's time in Northern Ireland, from his arrival in Belfast in 1971. Mr Clarke read the section relating to Bloody Sunday in full.

The RMP and Widgery Inquiry statements of Soldier 027 give a different account of the day to the one that is given in the document.

9.24.1 Soldier 027's November 1975 account

Soldier 027 was a radio operator in the Anti-Tank platoon. He said that he and his colleagues were told they would be going to Derry, the evening before the march. The soldiers greeted the news with 'high spirits'. When their Lieutenant said
'let us teach these buggers a lesson - we want some kills tomorrow,'
it was taken as an order and the soldiers understood that they would not be held responsible for their actions.

Soldier 027 said that the purpose of the trip was in anticipation of trouble during a 'massive pro-IRA rally' which had been publicised for some days. He believed several top IRA leaders had travelled from the Republic to attend the march.

When the soldiers arrived in Derry, they debussed and took up a position in a churchyard. He said that messages coming over the radio suggested that the resident troops were at their 'wits end, trying to contain the violence.' He said that adrenaline was running amongst his colleagues and there was excitement in the air. He said that speaking for the majority of soldiers, the common feeling was 'please let us be called in, we will go nuts if we miss a chance like this.'

When Major Loden gave the order to move, he moved down the right side of Rossville Street. He said there were several strikes in the road next to him. He reached the small garden at the corner of Kells Walk and saw Soldier F fire at the centre of the crowd from the wall running around the garden. Soldier G jumped down beside him and also opened fire. Soldier 635 started firing from the pavement.

Soldier 027 saw two bodies fall at the rubble barricade. He raised his rifle but lowered it when he could see no one with a weapon. He said he was amazed and looking at his colleagues, wondered whether they knew something that he did not. He did not understand what they were firing at. Members of the Mortar Platoon were also firing. In the first 30 seconds, 100 rounds were fired at the crowd.

He saw several people drop and bodies being dragged away. Some people were crawling along the pavement in front of the Rossville flats to get away.

Major Loden's voice came over the radio, ordering a ceasefire. Soldier 027 said,
'I know the blokes were getting in while the going was good, as people with gleeful expressions were running up from the rear and elbowing their way through to get into the firing line.'

Soldier 027 said that he went into Glenfada Park North with Soldiers H, E, G and F. A group of 40 civilians were running to get away and he saw Soldier H fire from the hip at a distance of ten yards. The bullet passed through one man and into another, both men fell, one dead and one injured. Soldier H moved forward, fired again and killed the wounded man. Soldier E shot another man at the entrance of the car park. A fourth man was killed by either Soldier G or F. The incident happened in seconds and whilst he could not remember the order of fire, the crowd stopped in their tracks and turned to face the soldiers holding their hands up.

Soldier 027 saw a priest clubbed with rifle butts and a woman beaten and then kicked when she was on the ground. He saw four men, wearing donkey jackets and flat caps, pick up two of the bodies and carry them out of the car park.

Soldier 027 went to where the prisoners had been taken and directed a reporter to Glenfada Park. A lot of the prisoners had been beaten and were bleeding from head wounds. He saw Major Loden smack a prisoner on the head with a baton.

When the soldiers returned to the APC, they were laughing and joking as they worked out how many rounds they had fired. Several of the soldiers had fired their own personal supply of dumdum bullets. Soldier 635 fired ten dumdums into the crowd but as he still had his official quota of ammunition, he claimed that he had not fired at all in the subsequent investigations. Soldier H fired 22 rounds but was overheard boasting about it before he had a chance to spread them out amongst the other soldiers.

He said that the soldiers were interviewed by the Special Investigation Branch (SIB) which is part of the RMP before attending the Widgery Inquiry. One morning he was asked, with other soldiers, to plot the direction of their shots on an aerial photograph. He said the soldiers treated it as a farce and drew lines haphazardly all over the place.

He was interviewed by two lawyers from the Widgery Inquiry. He said that he told the truth but one of the lawyers, 'a doddering gentleman', said
'Dear me, Private 027, you make it sound as though shots were being fired at the crowd, we cannot have that, can we?'
The lawyer tore up his statement and returned with one that bore no relation to Private 027's account.

9.24.2 Soldier 027's RMP statement

In his RMP statement, Soldier 027 said that he was at the Kells Walk wall when he heard someone shout 'sniper'. Almost immediately, soldiers fired at the barricade at a man who was possibly carrying a rifle. The man fell.

He saw two soldiers at the northeast corner of the Rossville flats who also appeared to be firing at the barricade.

When he heard the order to ceasefire he became aware of shots to his right and followed Soldiers E, F, G and H into Glenfada Park North. He was at the back and the soldiers were out of his view when he heard several shots.

He saw a crowd of 40 civilians trying to get through the alleyway. He then saw a man lighting something in his hand. As the man tried to throw the object, either Soldiers E or F fired at him. The man fell to the ground and the petrol bomb exploded.

The order came through to withdraw. As Glenfada Park emptied he saw three bodies and then watched men, dressed in donkey jackets and flat caps, remove them.

9.24.3 Soldier 027's Widgery Statement

Soldier 027 said that he saw soldiers firing at a man at the barricade who appeared to have a weapon. He saw a group of soldiers around an APC at the corner of block 1 of the Rossville flats, firing at the barricade. By this time, most of the crowd at the barricade had run away.

He saw people crawling down the side of block 1 of the Rossville flats and shots from the soldiers hitting the centre of the barricade.

He said that his attention was diverted to the Rossville flats on a number of occasions, which meant that he did not see the civilians falling at the barricade. He did not see any civilians with weapons.

He moved into Glenfada Park with Soldiers E, F, G and H but they were out of his view when he heard the shots. He saw a man with something in his hands and as he was about to throw the object, Soldier E shot him. The petrol bomb exploded.

He saw the men in donkey jackets carry the three bodies away.

9.24.4 Statement of Mr John Heritage

Mr John Heritage was the 'doddering gentleman' who took Soldier 027's Widgery statement. Mr Heritage was a senior legal assistant at the Treasury Solicitors department and had been involved in the Scarman Inquiry in Belfast and Edward Compton's Inquiry into allegations of brutality to detainees.

He does not recall the interview with Soldier 027. He said that he would have taken Soldier 027 through the SIB statement and would have asked for further details. He said the final Widgery Statement would have been a combination of his SIB statement and the additional details.

He denies tearing up a statement or substituting it for another. He pointed out that Soldier 027's Widgery statement was not compiled in order to exonerate the Army, citing the reference to soldiers firing at civilians who were running away.

Mr Heritage said that, as a relatively junior officer with the Treasury Solicitors staff, it would have been impossible to fabricate evidence without the knowledge of others working on the Widgery Inquiry.

9.24.5 Soldier 635's statement

According to Soldier 027, Soldier 635 fired ten dumdum bullets into the crowd but got away with it because he still had his original quota of ammunition.

Soldier 635 said that he was behind the Kells Walk wall and that he did not fire any bullets on the day.

Most of this week was taken up by short hearings where the Tribunal makes decisions on how the Inquiry will be conducted, after hearing arguments from the lawyers. Administrative matters were also dealt with.

Private 042 was a soldier of the Royal Anglian Regiment who was on duty at barrier 20 in Barrack Street. Between 4:40pm and 4:45pm he said that three shots were fired from some wasteground to his position. One shot hit a doorway, the bullet ricocheted and went through the left side of his flak jacket.

The next day he went to swap his flak jacket for a new one. The Battalion photographer took photographs of Private 042 pointing to bullet holes in his flak jacket.

The BSI have two photographs of Private 042. At the moment, a white square has been put across the soldier's face. All other details relating to damage to the jacket can be seen. Arguments were heard on whether Private 042's face should be concealed in the photographs.

9.25.1 The arguments in favour of concealing Private 042's face in the photographs

Mr Lloyd Jones represented Private 042 and said that these two photographs could be considered separately from all of the other photographs relating to Bloody Sunday. The purpose of Private 042's photographs was simply to show that there was bullet damage to his flak jacket.

Mr Lloyd Jones said that there is no suggestion that Private 042 is to be criticised for his conduct that day. He did not fire a weapon. The only reason that the two photographs are important is that they show there was bullet damage to his flak jacket. His facial features are not relevant to any issue that the BSI has to investigate.

Lord Saville asked the soldiers' lawyers whether any other soldiers would be asking to have their faces concealed on photographs if he allowed Private 042's face to be concealed. The lawyers told Lord Saville that, as far as they knew, the other soldiers would not be making a similar application.

Mr Lloyd Jones said that if the complete photograph of Private 042 was released it would place him in a more vulnerable position because it would be placed on the BSI web site. Anybody, including people who want to kill a soldier could print the photograph.

Lord Saville said that he had difficulty seeing how publishing a 28-year old photograph of Private 042 could put him in danger. He asked Mr Lloyd Jones what a terrorist would do with the photographs. Mr Lloyd Jones said that a photograph would help anyone who wanted to kill a soldier because it was a permanent record of his features.

9.25.2 Arguments in favour of releasing the complete photographs

Lawyers for the families of the dead and the wounded objected to the application to have the soldier's face blanked out.

Mr Finnegan said that if the Tribunal agreed that Private 042's 1972 appearance placed him at risk from terrorists, then when the time comes for him to give oral evidence he will argue that he should give evidence behind screens. He feared that this argument would be raised by all the soldiers in support of their applications for screening.

Lord Saville asked whether the soldiers' intended to use this argument in support of arguments for screening. Mr Lloyd Jones separated Private 042's application from the issue of screening. He said a photograph provides a permanent record of someone, whereas screening relates to someone making a temporary public appearance in the witness box.

Mr Mansfield asked whether this issue would be raised again when the soldiers give oral evidence. He showed a series of photographs of soldiers taken during Bloody Sunday and said that at some stage he will ask witnesses whether they recognise the soldiers in the photographs. He warned against any future applications by soldiers asking to have their faces blanked out of photographs. He said it is important that he can ask questions without the soldiers objecting to them on the basis that the answer would provide a permanent image of them.

He asked whether the soldiers would be applying for screening when they gave oral evidence.

Lord Gifford said that because the facial features of Private 042 were not relevant there was no argument for anonymity. He said that the application should be refused because Mr Lloyd Jones had not been able to answer how Private 042's 1972 photograph placed him in danger.

9.25.3 The decision on Private 042's photograph

The Tribunal agreed to blank out Private 042's face from the 1972 photograph because his facial features had nothing to do with the issue that the photograph proved (that his flak jacket was damaged by a ricocheting bullet).

Lord Saville said that the decision had nothing to do with anonymity. Mr Lloyd Jones had not produced any material to show that by publishing the photograph, Private 042's identity would be discovered.

Lord Saville attached importance to the reassurance from Mr Lloyd Jones that Private 042's application would not be used by soldiers in support of future applications. The decision on Private 042's photograph can be looked at again if it becomes clear his facial features are relevant to any issues that arise during the Inquiry.

Some members of the public, through perfectly proper means, know the names of some of the soldiers. This creates problems because of the ruling that the soldiers are entitled to anonymity. The codes that are used instead of names can be broken by people who know the actions of certain soldiers. Currently the Tribunal has blanked out these codes to protect the soldiers anonymity. However it has to decide how to deal with these cases because it is impossible to make sense of witness statements when the code is blanked out.

The evidence of Joseph Mahon illustrates this problem. Mr Mahon said that when he was lying on the ground in Glenfada Park, he heard a soldier call another soldier by his first name. (See BIRW report week 8 para 9.3.4.) The Tribunal and lawyers will need to find out who the soldier, referred to by that name, is. If a code was published then the anonymity of the named soldier in Mr Mahon's statement would be weakened.

Another example can be found in the evidence of arrests. Some of the people who were taken to Fort George learned the name of the soldier who arrested them. If the codes given to these soldiers were put in the documents, then people could put a name to the code and effectively break the code.

9.26.1 Suggestions from the soldiers' representatives

Mr Lloyd Jones said that the code should be blanked out if the information it relates to is not relevant. He suggested that the Tribunal consider each case individually to see whether the information in it is relevant.

Mr Elias suggested that the Tribunal give any document to the soldiers' lawyers before distributing it to the other interested parties. Then the soldiers could make submissions to the Tribunal on a case by case basis.

9.26.2 Suggestions from the representatives of the families of the dead and the wounded

Lord Gifford said that if a soldier stands in danger because he is known to have served on Bloody Sunday, then the damage is not going to increase because people know which role he played.

Lord Gifford said that it was important that he knew the codes of soldiers before they give oral evidence. He used the example of the soldier who is alleged to have been abusive to George Nelis in 33 Chamberlain Street. (See BIRW report week 5 para 7.30.4.) At the moment Lord Gifford cannot be told what the code of that soldier is. It will be crucial to know who that soldier is because Lord Gifford will want to ask the soldier about his attitudes and prejudices towards Derry people.

To be able to prepare properly for examination of witnesses, Lord Gifford said that he would need to know the identity (code) of soldiers in advance. He suggested the Tribunal draw up a list of the codes which they intend to publish. He warned that events that may not appear to be of relevance by themselves may be of importance in other areas.

9.26.3 The decision on procedures to be followed in substituting codes for names

The Tribunal decided that to withhold codes where the material is relevant would compromise the openness of the BSI and would hinder the Tribunal's ability to get at the truth. It would put the public at a disadvantage because they will not be able to understand the documents fully.

They agreed with Mr Lloyd Jones and decided that a code should be left out if it is irrelevant. Each case will be examined on its own facts. The Tribunal will make an initial assessment of any document which identifies a soldier. Copies of that document will be sent to the soldiers' lawyers and they will have a time limit to make representations.

9.26.4 Request to reconsider the Tribunal's decision on documents held in the Public Record Office

Lord Saville refused a request by Mr Lloyd Jones to reconsider the October 1999 ruling which held that the documents in the Public Record Office were in the public domain. He said that there was no reason to re-open this decision.

The lawyers for the families of the dead and the wounded asked for military experts to be appointed.

Mr Harvey said that the Tribunal could benefit from an independent expert in their investigation into the following three crucial issues;

· The true nature of the decision to deploy 1 Para.
· How the Paras were deployed.
· Why the Paras were deployed at that time and in that way.

Whilst competing interpretations of these three issues could be identified and isolated it would be impossible for a person without military expertise to decide whether the decisions made were reasonable or wise. A military witness has an advantage against people without military knowledge.

Mr Harvey said that the expert could provide information on the Command Structure of the Army, who had input into decisions, the relationship between what happened on the ground and political orders, regimental history and psychological pressures. These areas are outside the experience of civilians.

Lord Saville saw two problems with appointing a military expert;

· In finding an expert with the width of knowledge required.
· If the expert was asked for his or her view on an issue, there was a risk that he or she could take over the role of the Tribunal.

Lord Saville agreed that an independent military expert would be useful.

Mr Magee agreed with Mr Harvey and added that the higher echelons of the army were a mystery to anyone who had not had direct experience of them. He said it would be useful to ask a military expert how the chain of command on the ground could collapse.

Lord Gifford asked that the facilities of an expert witness be extended to all the families. He said that it was difficult to prepare questions for the soldiers without having expert knowledge.

Mr Morgan said an expert could help the Inquiry in investigating whether the arrest operation could have been carried out on an east-west axis (as originally planned).

Lord Saville asked how the Tribunal would find a military expert with such a wide range of knowledge. Lord Gifford said that he would expect any expert with military knowledge to hold views about army tactics in Northern Ireland. It was something that the lawyers for the families and the wounded would have to live with.

Mr Burnett, representing the Ministry of Defence (MoD), was asked how the Tribunal could find an expert. He said that more than one expert would be needed to deal with such wide areas. For example a senior officer who could give evidence on the command structure would not have detailed knowledge of radio nets.

9.27.1 The decision on appointing a military expert

Lord Saville said that the decision on whether to appoint a military expert would be made at a later date. In the meantime he asked the interested parties to compile a list of the type of questions they would want to ask a military expert.

The historical and political expert instructed by Madden and Finucane Solicitors who represent some of the families and the wounded asked for a time extension in submitting questions to the BSI experts.

9.28.1 The decision on the time extension

Pin 437 is a witness who is applying for anonymity, screening and for a journalist's document relating to him to be withheld in its entirety. He believes he is at risk from republican and loyalist paramilitaries. Alan Roxburgh, junior counsel to the BSI, said that he is likely to be able to give evidence about non-Army firing. Pin 437 has so far refused to give a witness statement to the BSI even though he has indicated that he is concerned about the reliability of the journalist's document.

Mr Roxburgh said that the Tribunal would need to consider whether Pin 437 has a genuine and reasonable fear for his safety. He suggested two reasons why Pin 437 is not at risk;

· Pin 437 is well known in Derry and in the context of the firing.
· Bishop Daly has given evidence of someone firing in the past and he has not been criticised for doing so.

Pin 437 is saying that the release of this document will lead to his identity being revealed. However, if the Tribunal agrees to withhold the document, it would make it impossible to question him or other witnesses on the truth of the document's contents. It would mean that the Tribunal could not use the document because they would not have had the chance to investigate whether the document is correct or not. Equally, Mr Roxburgh said that it is difficult to see what questions will be put to Pin 437 if he gives evidence anonymously and behind a screen, as any questions are likely to reveal his identity.

9.29.1 Arguments on behalf of Pin 437

Mr Brian Fee appeared on behalf of Pin 437 and made the following applications;

· For the document to be withheld in its entirety.
· If the Tribunal refused to withhold the document, for the document to be redacted, taking out any factors which could lead to Pin 437's identity being revealed.
· For anonymity. Mr Fee argued that Pin 437 has genuine and reasonable fears for his safety if he is identified. He believes he would be at risk from dissident republican and loyalists.

9.29.2 Ruling on the application by Pin 437

The Tribunal refused all three applications. Lord Saville said that the Tribunal members had examined the journalist's document and believed that they would be in breach of their duty if they withheld it. The document contains matters of central importance to the BSI and there are compelling reasons why it should be published. He noted that Pin 437 did not feel that the option of the witness protection scheme was open to him.

They refused to allow redactions to be made to the document because it would make the document meaningless and would be the same as withholding the document completely.

In publishing the document, Pin 437's identity will be revealed and so the Tribunal decided there was no point in granting him anonymity.

Lord Saville agreed to withhold the document for 24 hours to give Pin 437 the chance to give a witness statement. This would mean the document would be published at the same time as his witness statement.

Pin 437 is considering a judicial review (a request for the ruling to be reconsidered) and the Tribunal extended the 24-hour deadline to 4pm on 23rd June. If judicial review is launched then time will be extended again.

The BSI compiled a list of the witnesses who will be called to give oral evidence. The interested parties have had the chance to check the list. The list can be revised as more is discovered.

Lord Saville said that if a witness is not called then it does not mean that his evidence has been ignored. Their accounts will still be treated as evidence and will either be read out or taken account of. Witnesses will be called if it is felt that more could be discovered through asking them more questions.

Lord Saville asked interested parties for a summary of the opening statements which they will make in September. This is to ensure that all parties are given the chance to answer allegations made against them.

The Tribunal said that the opening statement by Mr Clarke and the reports compiled by his team should be taken as an indication of potential criticisms and allegations.

Interested parties are to give the Tribunal a summary of their opening statements by 25 July.

This hearing dealt with the search for the army and RUC photographs which were taken on Bloody Sunday and have still not been found. (See BIRW report week 1 para 2.6.)

McCartney and Casey Solicitors, representing the family of James Wray want to investigate whether the photographs were held by the Widgery Inquiry. A 1972 report by Colonel Overbury said that over 1,000 photographs were produced for use by the Widgery Inquiry and the lawyers for the Army. McCartney and Casey Solicitors want anyone involved in the Widgery Inquiry to be asked about the photographs at a specially arranged oral hearing.

9.32.1 Army photographs

Mr Roxburgh said that it is not clear that these photographs came into the hands of the Widgery Inquiry. It is not clear from Colonel Overbury's report that he is referring to the missing photographs.

The lawyers and Inquiry Staff to the Widgery Inquiry are being asked about the photographs. The BSI team will inspect the files of the SIB.

9.32.2 The helicopter cine film

There is still a question over whether the cine film taken from the Army helicopter is complete. The BSI obtained their copy of the film from the National Film and TV archive. Whilst Network International have examined this copy of the cine film and said that, as it stands, it appears to be unedited. The question remains whether this is all the film that was taken. (The copy of the cine film stops abruptly at the point when the Army vehicles go into the Bogside.)

Two copies of the helicopter cine film were taken. The BSI has written to the MoD and the Home Office to try and find the other copy.

The transcript of the Widgery Inquiry shows that four separate films were shown to Lord Widgery in one showing. There is still confusion over whether one of these was the cine film taken from the helicopter.

9.32.3 RUC photographs

Police Sergeant Penny of the RUC was in the photographic branch of the RUC. He said that the RUC took three rolls of film of the march but they only showed riots. The RUC said that this film was sent to Kodak for processing and cannot be traced.

9.32.4 Arguments raised by the families and the wounded

Mr MacDonald said that ten Army photographers were positioned along the containment line and were ordered to get maximum coverage, moving as required. He said that there was no reason to think that the photographers did not follow this order. The MoD have not produced any of these photographs.

Colonel Overbury's report suggested that the photographs were produced to the Widgery Inquiry. The fact that the existence of the army photographs was withheld from the families suggests that they undermined the Army's case. Colonel Overbury had said that not one of the photographs showed a gunman or nailbomber.

The original cine film has not been supplied and whilst he accepted Network International's finding that it had not been spliced that is not to say that the original had not been spliced. He pointed out that the copy of the film that is available ends abruptly at the critical point when the troops debus from APCs 1 and 2.

Mr MacDonald said that it is difficult to believe that all the individuals who had seen the photographs had suffered a memory loss. He suggested that witnesses should be called and questioned on the photographs.

An Army historian said that the photographs had probably been destroyed. Mr MacDonald suggested that there was either a ruthless policy of destroying all the photographs of the event or a deliberate policy of withholding the photographs because they are too damaging.

Mr MacDonald said it would be unfair to call civilian witnesses in September before the photographs have been found. The ten Army photographers had been operating in a forward position, they are bound to have photographed the true scene that the soldiers met when they entered the Bogside.

Mr Treacy agreed with Mr MacDonald and said that he was surprised that no photographs had been produced, considering they were taken for intelligence purposes.

He was also surprised that the MoD had not provided a single piece of paper about the whereabouts of the photographs. He expected any large organisation to have some form of system which logged the movement of documents such as photographs.

Mr Treacy said that the ten Army photographers should be traced so that they can give evidence about what they saw on the day.

9.32.5 Answers from the MoD

Lord Saville suggested that the MoD had not been as helpful as they could be. He asked Mr Burnett, who represents the MoD, about the search for the photographers and photographs.

Mr Burnett said that the MoD had been unable to trace the photographers. They have no record of who the photographers were on the day. The Army in 1972 did not have a dedicated team of photographers, different soldiers would be asked at various times.

Mr Burnett said that an enormous amount of time and effort had gone into the search for the photographs. He said that the BSI team had been encouraged to make visits and checks at the MoD.

He suggested that one way of finding the photographs would be to place newspaper adverts for anyone holding the photographs to come forward.

9.32.6 The Tribunal's decision on the search for the photographs

Lord Saville agreed that further searches had to be carried out for the photographs. He said that the Tribunal is not satisfied that they have been given a full explanation of why the photographs have not been produced.

He asked the lawyers for the families of the dead and the wounded to compile a list of their questions which he would pass to the MoD and he said he would expect answers without delay.

Officers F, G and H are retired members of Special Branch. They interviewed a suspect on 10th September 1972 and claim that the suspect gave information about the events of Bloody Sunday. The suspect denies making the comments. The officers applied for screens to be erected when they give oral evidence so that only the Tribunal and the lawyers can see them.

9.33.1 Arguments on behalf of the officers

Mr Ritchie said that Special Branch officers are 'prestige targets' for terrorists, all have reason to visit Derry, all have been targeted or attacked in the past. The officers will be giving controversial evidence which will attract significant media attention. Mr Ritchie said that a threat assessment by the security services said that the threat to the officers had increased.

He said that public confidence in the BSI should not be undermined as the officers names would be known. They will be heard giving evidence in public. There was no danger that the credibility of the officers would not be tested. He said that restriction on open justice would be minimal. Only the officers' appearance will be concealed.

Mr Ritchie said that if the Tribunal did not allow the officers to be screened, the threat to their lives would increase.

9.33.2 Arguments against screening Officers F, G and H

The lawyers for the families of the dead and the wounded argued against allowing the officers to give evidence behind screens.

Mr Finnegan described screening as a running sore for public confidence in the BSI. He warned that further applications would follow on from this. He said that the open and public nature of the Inquiry should override the anxieties of the officers.

Mr Mallon said it is vitally important that the witnesses are seen as well as heard when they give evidence. There needs to be powerful reasons for the Tribunal to grant screening.

He said that when screening is allowed in courts in Northern Ireland it is usually to protect the operational effectiveness of a police officer. In this case, Officers F, G and H are all retired so operational effectiveness is not at issue.

Lord Gifford said that it was wrong to make a decision on screens when the officers' BSI statements have not been circulated. The impact of what the officers have to say might tip the balance in favour of open justice. It may make it important for the public to see the officers in case they have useful evidence about these officers.

He asked for the decision on screening to be delayed until nearer the time that the officers are called to give evidence.

9.33.2 The decision on whether Officers F, G and H can give evidence behind screens

The Tribunal decided that the officers can be screened when they give oral evidence.

Lord Saville said that he had no doubt that the officers had reasonable and genuine fears for their safety. The fact that they had retired was not relevant.

He did not agree that the decision should be delayed until before the officers give evidence but said, as with all the rulings, the decision could be looked at again if there is a change of circumstances.

Observer B is a former agent who gave information about Bloody Sunday to the Security Services. The Tribunal has previously agreed to allow him to give evidence by video link because he is in poor health. He is applying for,

· Anonymity.
· Redactions of witness statement and further documents.
· Screening which would mean he would give evidence by audio rather than video link.

Observer B considers himself to be under a threat because there is the potential for him to be located and singled out for attack, the threat assessment is moderate and depending on what comes out in the Inquiry, there could be a rise in the threat to him.

Observer B has given a statement to the BSI, which deals with information he gathered before and after Bloody Sunday. Mr Roxburgh read out this and the statements of his handlers, James and Julian. All of these statements have been redacted. Six documents have been attached to Observer B's statement. The Security Services will have to justify the redactions they made to these documents to the Tribunal.

9.34.1 Observer B's Statement

Observer B initially had contacts with two army intelligence officers I01 and I02 (who are both dead). He was then introduced to two Security Service Agents known as James and Julian. His main contacts were I01 and I02. From his statement he appears to have four contacts in Derry, known as X, A, B and C, who the BSI have not been able to contact. Their names are concealed for the moment to protect Observer B's anonymity.

Observer B says that on 25 January 1972 he saw 40 civilians, who he believed to be IRA auxiliaries drilling in Glenfada Park. He said that the auxiliaries marched into the Rossville flats and spread out along the three landings of block 2. They positioned themselves in a way that would obscure them from the sight of the observation posts on the city walls.

Observer B said that X told him the auxiliaries had been practising every day for Sunday (the day of the march). He said that he and X discussed the possibility that the Fianna (IRA youth wing) were planning to draw the Army into the area and then fall back, leaving the soldiers' vulnerable to sniper fire.

Observer B contacted I01 with this information.

Observer B said he spoke to A and B about events on Bloody Sunday. They told him that, after the shooting had gone on for a couple of minutes, they had seen men run from the Rossville flats to a Ford Cortina. A said that two men had thrown two Thompson sub-machine guns, a rifle and a pistol into the boot of the car. B said that the back of the car was full of Thompsons. Observer B telephoned I01 with this information.

He met Julian on the Tuesday after Bloody Sunday who asked him about the passageways between Glenfada Park North and Glenfada Park South. Julian wanted to know whether it was possible to see someone shot in the passageway and whether someone could have fired at a soldier in Glenfada Park.

Observer B said that he had met X and C on either 12, 13 or 14th February. He said that X had told him that he had seen auxiliaries firing from the balconies of the flats; that the Paras had made it to the flats faster than the crowd anticipated and panic had broken out. He said that the auxiliaries had stashed their weapons in small rooms off the landings. X said the IRA had fired first that day and the first shot he heard was the thud of a Thompson. Observer B reported this to I01.

9.34.2 James' statement

James had worked for the Security Services in Northern Ireland for three years. His work involved recruiting and handling informers. He returned to London every few days to file intelligence reports. He would report urgent information to London via David who was the Security Services' representative at HQ in Northern Ireland.

The only soldier he would speak to was Major General Farrar Hockley. All other contact with the Army was through David. He said that he had a limited degree of contact with the RUC.

The Army handed Observer B to James. He said that Observer B was the source for everything they knew about Derry. Observer B was able to see what was going on throughout the area from the Rossville flats. He knew about X but cannot remember X's name.

Observer B was the only source for information on Derry that he had. He said that he was in contact with Observer B once a week. He remembers being told about the auxiliaries drilling and about three or four IRA members firing from the Rossville flats but cannot recall whether this was on Bloody Sunday or another day. He cannot remember whether he met Observer B before or after Bloody Sunday but remembers writing a source report about the information Observer B gave to him.

He said that his difficulty in remembering events is due to recently suffering a brain haemorrhage.

9.34.3 Julian's statement

Julian worked for the Security Services and was based in London. His work in Northern Ireland involved running agents. He met Observer B through I01 who, in turn, met Observer B through officers in the Parachute Regiment.

He said that Observer B was treading very dangerous ground because he was operating in both camps of the sectarian divide. He was regarded as a reliable by the Security Service.

9.34.4 Arguments on behalf of Observer B

Mr Chawla appeared on behalf of Observer B. The three applications he made are interrelated and designed to protect Observer B's anonymity.

He asked that Observer B be allowed to give evidence through an audio link. (Which would mean that the Tribunal could only hear his voice when he gave evidence.) He said that Observer B is particularly vulnerable because he was an important informant and that this vulnerability could increase if he is seen. He is in poor health and does not want his face to be broadcast. If he has genuine fears about his safety, his ability to give evidence could be affected.

Mr Chawla said that the more people see the image of Observer B than is necessary the greater the risk to Observer B. He asked that Observer B's image be concealed from all the lawyers. Lord Saville said that he found it astonishing that counsel for the Inquiry should be prevented from seeing a witness.

Mr Chawla said that there is no need to broadcast Observer B's image wider than is absolutely necessary. Any potential or increased risk should be removed.

He said that redactions in the documents were made to preserve the anonymity of Observer B.

9.34.5 Arguments against the applications

The lawyers representing the families of the dead and the wounded opposed all the applications made by Observer B.

Ms Smyth said that anonymity could only be granted if it did not prejudice the Tribunal's duty to find the truth. If these applications were granted then the Tribunal would impede the search for the truth.

Ms Smyth accepted that Observer B might have reasonable fears but said that the proper course to take was to ensure that he was provided with full protection. She noted that during the Supergrass trials in the 1980s none of the witnesses had been screened. They were given protection instead.

She said that witnesses are more likely to give false testimony if their identity is concealed because the risk of being exposed as a liar is limited. Members of the public would not be able to challenge his account.

Ms Smyth said that because nothing is known about Observer B there is no guarantee that he is telling the truth. It is possible that he was threatened or bribed to give information. It is possible that he exaggerated to please his handler. He must have been a convincing liar to be able to operate on both sides of the sectarian divide.

From what James has said Observer B was the only informant operating in Derry. It is possible that he was giving the Security Services nonsensical information. Ms Smyth pointed out that Julian said that I01 met Observer B through an officer in the Parachute Regiment. The Tribunal should be concerned that Observer B has a vested interest in protecting the reputation of the Paras.

Ms Smyth said that it is crucial that the civilian witnesses referred to in the statements are given the opportunity to comment on the statements. Whilst the BSI are trying to find those witnesses, there will be problems if they cannot be found. The lawyers will have difficulties in challenging Observer B if they do not know who he is.

Mr Coyle agreed with Ms Smyth and said that it is important that Observer B can be seen by local people when he gives evidence because they may have information on his honesty. To screen Observer B from the public puts a stop on that type of useful information coming forward.

He asked the Tribunal to check whether it is correct that Observer B's wife will be allowed to interrupt during cross-examination if she feels that the questions are harming his health. (Lord Saville said that this question would be dealt with later.)

Mr Coyle said that he needs to be able to see Observer B's reactions to questions.

Mr MacDonald agreed with Ms Smyth and Mr Coyle. He said that to grant these applications would be to impede the search for the truth. Observer B's statement and the Security Services documents relate to the IRA plans and what the IRA did on the day. Observer B's background and the contents of the documents need to be checked in order to be get at the truth.

Mr MacDonald went through the statement and the Security Service documents to show how granting anonymity to Observer B would impede the search for the truth.

He also pointed to evidence within the documents suggesting that not all of the intelligence documents had been made available to the BSI. (For example there are references to telephone calls and a telegram between Observer B and his handlers. However there are no documents available which describe what the Security Services did with this information.) Mr MacDonald said that this raised the suspicion that the Security Services were only making documents available which support their own case. He argued that witnesses from the Security Services and MoD should be called to explain why all documents have not been made available.

9.34.6 Ruling on Observer B

The Tribunal agreed to grant Observer B anonymity and to allow the redactions made to conceal his identity. They refused to allow him to give evidence by audio link but agreed to a limited form of screening. Observer B will give evidence by video link which only the Tribunal and lawyers can see.

The Security Services were asked to deliver unredacted copies of the documents that were attached to Observer B's statement. They had not made any claim for redactions.

Lord Saville asked Mr MacDonald to compile the questions he asked in relation to documents which have not be made available. He will pass this to the Security Services.

If it becomes clear that the decision to grant Observer B anonymity impedes the search for the truth, the Tribunal will reconsider the matter.

9.35.1 Signed statements

Of the 447 statements which have been signed by soldiers;

· 251 have been redacted and sent to the BSI and all but 40 have been distributed to the interested parties.
· The 40 that still have to be distributed should all be sent out by the 19 June.
· 196 are currently being redacted and should be distributed by the first week in July.

9.35.2 Statement which still have not been signed

Of the 179 statements which still need to be signed;

· 108 are from the clients of the Treasury Solicitors; 44 have draft statements and are not responding, 42 have statements with their amendments included, 21 are being completed by solicitors and one witness has died since being interviewed.
· 71 are either not represented or are being represented by other solicitors. Some of those witnesses have only been seen recently.

9.35.3 Ruling on the return of signed statements

Those soldiers who have had draft statements or statements to be signed for more than one month from 15 June 2000 have to return their final statement by 30 July 2000. If the soldiers do not meet this deadline, the Tribunal will distribute their draft statements instead.

There is a large amount of video material (including untransmitted material) relating to Bloody Sunday. The videos listed below were shown.

9.36.1 Secret History

The documentary, Secret History, was made in 1982 and it examined civilian and forensic evidence against the soldiers' accounts. It was criticised by Martin McGuinness for suggesting that rogue members of the IRA had fired on Bloody Sunday. There are a number of interviews with actors who speak the words of the soldiers in the programme. The BSI are still trying to match which words belong to which soldier.

9.36.2 Remember Bloody Sunday

This is a documentary by Peter Taylor. It consisted of interviews with Gerard McKinney's widow, Bishop Daly, Father Bradley and Dr McClean. Colonel Wilford and Michael Jackson were also interviewed.

9.36.3 Channel 4 News items

Seven news items were broadcast on Channel 4 news between January 1997 and January 1998.

The items consist of interviews with civilians, soldiers, journalists and experts. One of the items suggests that the soldiers may have thought that civilians were firing at them from the walls. Mr Clarke said that the soldiers have not said this to the BSI in their evidence. However the BSI will need to consider whether the soldiers mistook shots from the walls as coming from another direction.

9.36.4 This Week material

In the week after Bloody Sunday, the This Week programme interviewed soldiers of 1 Para in the sergeant's mess. The soldiers described coming under heavy fire as they entered the Bogside. One soldier said that the only thing that will stop a nailbomber is a bullet. A sergeant said that if the unit had not been so professional there would have been more than 13 people killed.
An interview was conducted with Jack Chapman who was a Welsh man who had lived in the Bogside for 37 years. He described seeing the army vehicles come down Rossville Street and said that the soldiers had opened fire first. (Mr Chapman has since died.)

9.36.5 Material supplied by RTE

The RTE tape contains interviews with unidentified people who give accounts of soldiers firing at people who were running away. The BSI has only identified Sean McDermott and appealed for other witnesses interviewed by RTE to come forward, in particular they want to speak to James who was an eye- witness to the shooting of Hugh Gilmore.

The tape also contains an interview with two members of the Official IRA who say that one of their members was wounded in the neck and leg.

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