|
|
15 - 18 MAY 2001
This week, the Tribunal heard legal arguments on whether intelligence material about civilian witnesses should be made available. Sean Collin’s, a witness due to give evidence on Tuesday, had his evidence postponed until the Tribunal rule on the matter.
The Tribunal also heard evidence from
Bernadette McAliskey (nee Devlin) who was one of the speakers at the meeting.
Mrs McAliskey was asked to comment on a number of journalists’ notes
and she spoke about her reservations with the BSI.
Peter Stewart, a BBC journalist, who followed the soldiers through
Barricade 14 and down Rossville Street also gave evidence.
A full transcript of proceedings is
available at http://www.bloody-sunday-inquiry.org.uk
1
BERNADETTE
McALISKEY’S EVIDENCE (nee DEVLIN)
Bernadette McAliskey was a Member of the Westminster Parliament for Mid Ulster in April 1969 and was elected thereafter. She was one of the speakers at the meeting.
Mrs McAliskey provided a witness
statement to the BSI and answered a series of questions which arose out of the
material the BSI has gathered. She
said that the additional answers are not part of her independent memory of
events. They are memories evoked by
what is contained in other people’s statements.
Mrs McAliskey said that these were of a lesser quality than her own
independent memories.
1.1
QUESTIONS
ON BEHALF OF THE TRIBUNAL
1.1.1
Corruptive
memory
Mrs McAliskey said that one of the problems she has with the BSI is what she described as ‘corruptive memory.’ Documents do not make it clear that she may not have volunteered any information on a matter at all. The way that the statements are drafted (questions then answers and then written in the first person) gives the impression that she volunteers the final statement. The final statement can end up bearing no actual resemblance to what she said and can be a compilation of what she had been asked, how she answered and the description and attitudes of the person asking the questions is added in the overall note.
1.1.2
Non-arms agreement
Mrs McAliskey said that she was not concerned with the organisation of the march. She said that in all her days of marching she has no clear recollection of the activities or whereabouts of the IRA or their weapons being an issue in marching. It was not an issue that she had any information on.
Mr Clarke asked Mrs McAliskey about notes of a Praxis interview which suggest that she had knowledge of an individual who negotiated a non-arms agreement and was subsequently surrounded by an angry crowd demanding to know where the weapons where so that they could defend themselves. Mrs McAliskey said that she is unsure whether that memory relates to August 1969 or 1972.
Mrs McAliskey said that her only memory
of the individual was that he was a political activist in Derry.
She thinks that when the situation arose it may well have been because
he, like others, was unable to provide people with anything to defend themselves
with, other than words. This does not mean that the individual would know where the
weapons would be. He would merely
be being accosted for being a person in a position of leadership unable to
protect the people.
Mrs McAliskey said that she does not
know whether this individual was politically active with the Officials.
She said that the term ‘Official’ did not infer that he was a member
of any armed organisation. It was a term applied to anyone whose political opinion leant
towards the Official end of Republicanism.
1.1.2
Superintendent
Lagan
Mrs McAliskey said that she would find it totally inconsistent for Superintendent Lagan not to know that there would be no IRA guns in the Bogside that afternoon. It was reasonable to assume that numbers of people in the Bogside were in the paid employment of Mr Lagan and the RUC and would keep him regularly informed. The country was riddled with informers and the police were probably perfectly well informed.
1.1.3
Route
of march
Mrs McAliskey said that there was no
doubt in her mind that the march would end up at Free Derry Corner.
She said that she was aware that the march was billed to go elsewhere and
that the Army and police were going to stop the march.
This happened regularly. The
organisers would make their point about not being allowed free movement and
would then convene the meeting. They
were never quite sure at what point they might actually be stopped.
1.1.3
Free Derry Corner
Mrs McAliskey said that the shots she heard came in three different waves. She recalls being handed the microphone and Fenner Brockway either getting on or off the platform. She said that almost as soon as she spoke she heard several shots in her right ear coming directly from her right. The first shots that she heard she believed they came from the walls. She turned her head to the right and saw possibly two soldiers on the walls. She does not think that the two soldiers were those who fired. The noise was further to the right than the first soldiers who caught her eye. People were saying that she had been fired at. She said that she may have said ‘there are 100 of us to one of them.’
Mrs McAliskey said that it is not
possible that the shots she heard were echoes fired in the Rossville Flats car
park. She would have heard the
shots as well as the echoes and the noise would have come from in front of her.
Mrs McAliskey heard the second set of
shots in both ears. At that point,
panic started from the back of the crowd and she went under the lorry or beside
the wheel. She remembers saying
‘do not run’ because she felt if people ran they would be shot.
When Mrs McAliskey was first conscious
of seeing soldiers and army vehicles she was on the ground and she was focused
on the people in front of her. The
only clear memory she has is of sheer terror.
1.1.4
House
of Commons
Later that day, Mrs McAliskey left Derry and went back to Westminster. On the Monday evening, in the debate in the House of Commons, Mrs McAliskey was not called on to speak. She assaulted the Home Secretary because she thought that the statement he made in the House of Commons was a travesty of the truth.
1.1.5
Sunday Times archive
Mrs McAliskey thinks that the documents contained in the Sunday Times archive is a composite of information from more than one person and more than one interview. She thinks that the author of some of the information worked for the British Army.
There are inconsistencies which Mrs McAliskey said indicate that the notes are a composite. There are bits that are neither in her language or her knowledge. Parts of it could only have been added later than 1972. She said that the note that said ‘half the march was aiming at violence’ was not true.
Mrs McAliskey asked Mr Clarke why he was asking about nitty-gritty details such as whether she had asked why the lorry was being taken away. She said that this had no bearing on the real issue which is that a crowd of unarmed civilians was fired on by Her Majesty’s Armed Forces on Her Majesty’s Government’s orders.
She said that it seems unreasonable that
she would have said ‘you are taking away the only means of communication’
when Rory McShane was standing next to her with a loudhailer in his hands.
She said that there were people in front of the lorry and it would not
have made sense for the lorry to drive through the crowd to the barrier in order
to get people to turn back.
Mrs McAliskey said that there was an
incident with a dog that had got caught up in the middle of the group she was
with when she was in William Street. She
may well have commented on the impact that the dog had because it caused ripples
and movement. She did not go into
Chamberlain Street and she did not flee anywhere. At that point, there was nothing from which to flee.
She did not go around the waste ground with a loudhailer.
1.1.6
Report in the Times
Mrs McAliskey was asked about a report
of a meeting that she had spoken at in London on the Monday after Bloody Sunday.
She is reported as having said that the Army shot an eight-year-old boy
in the back at the march. Mrs
McAliskey said that she does not know of anyone other than the dead and wounded
who were shot on Bloody Sunday. She
would have received the information from somebody who heard it from somebody who
had heard it from somebody else. Mrs
McAliskey said that because she was in London she would have been relying on
what she was told by others. She
thinks that this may have been a reference to the youngest person who was killed
and who had got younger as the story was passed on.
It was more likely to have been simple misinformation on her part.
The same applied to the report of her saying that a young girl had been
shot.
1.1.7
Political situation
Mrs McAliskey was asked to comment on
some Channel 4 notes. She has no
recollection of making the statement. She
said that she does not think that they were reliable summaries of interviews.
She does not think that she would have said ‘everyone knew who was in
the IRA and their business.’ Mrs
McAliskey did not think that everyone would have known who was in the IRA.
She did not have any reliable knowledge of who was in the IRA.
She may have had her own personal opinions but it was not a matter of
significant importance to her.
Mrs McAliskey said that the notes in the
Sunday Times archive were a very simplistic summary and a lot of it related to
the position in 1969 rather than 1972. The
notes provide a simplistic representation of the period from 1968 until now.
NICRA was one of several organisations involved within the broad civil
rights movement. Mrs McAliskey said that she was not a member of NICRA and had
very little involvement with NICRA. She
was an active part of the broad civil rights movement.
The civil rights movement was fragmenting after 1968.
By the summer of 1969, the old nationalist party was seriously dented by
independent civil rights leaders who contested elections under different
headings. The old political leadership had fragmented.
The new independent leaders were beginning to form another political
party.
When she was in prison in 1971, the
republican movement had split on the issue of defending their areas against
attack and a number of other issues. Her
day-to-day knowledge of politics was in Tyrone where she was the elected
representative. There were more
intricate politics in Derry than anywhere else in the north of Ireland.
Mrs McAliskey said that notes are about her and are not an interview with
her. It is some kind of composite.
She said that the paragraph about her
being less certain about the Officials than the Provisionals did not make sense.
In 1972 when she contested the Westminster general election, she had
lined up with the Officials and the Provisionals had lined up with the SDLP.
Her centre of gravity was, at that point, closer to the Officials. She challenged the rationale behind the paragraph about the
Officials because it implied that somebody was trying to persuade armed
organisations not to do things on the day.
Mrs McAliskey said that there is no history of any republican-armed group
organising armed activity in conjunction with marches.
1.1.8
Participation in the BSI
Mrs McAliskey said that she does not
believe a public inquiry is the way to do this.
She said that she was only participating in the BSI out of respect for
the relatives.
Mrs McAliskey said that people who
believed the Government conspired, organised or authorised the killing of
citizens should bring charges against the Government in the International Court
of Justice in the Hague.
She said that, in going through various
documents, the issues are being clouded with things that are of little
relevance. She said that she felt
as if she was being drawn further into matters of no consequence that at the end
of the day would become part of a great big cloud that will confuse the final
issue; that the Government of the day ordered the Army to shoot citizens.
Mrs McAliskey said even if both wings of
the IRA had conspired to take on the British Army, which she did not believe, it
did not justify the Army opening fire on the civilian population at that
demonstration. None of the details
she is asked to address her mind to adds up to justification of the armed forces
of the state firing on the unarmed citizens.
1.2
QUESTIONS
ON BEHALF OF THE FAMILIES AND WOUNDED
1.2.1
Free
Derry Corner
Mrs McAliskey said that the crowd in front of the platform where not settled. There was a hum of activity. People were still moving and coming closer in the minutes before she heard the shooting.
The first set of shots came from the walls and the second set of shots from the north. Mrs McAliskey did not realise that the line she had drawn on the map, showing where she thought the shooting was coming from went through the Army Observation Post on the Derry Walls.
1.3
QUESTIONS
ON BEHALF OF THE SOLDIERS
1.3.1
ITN
interview
Mrs McAliskey said that the reference to the young girl being shot in the back is mistaken information as had happened in the reference to the eight-year old boy, see para 1.1.6 above.
1.4
BERNADETTE
McALISKEY’S VIEWS ON BLOODY SUNDAY
Mrs McAliskey said that she did not want to come to the BSI and that, to some extent, her own personal position is somewhat compromised by attending because she feeds into what she believes is the confusing of the information.
Mrs McAliskey said that the actual enormity of Bloody Sunday is easy to forget. Before that day, she did not believe that death was an integral part in seeking justice in this country and after Bloody Sunday she believed it was. She understood that both wings of the IRA promised to avenge every death and remembers saying something like ‘that makes 26 soldiers and I will not shed a tear over one of them.’ Mrs McAliskey said that this was an unbelievably cruel thing to say but she meant every single word of it. Before Bloody Sunday, she had argued against secret and armed organisations. After Bloody Sunday, she never raised her voice against the taking of the war to the British Government.
Mrs McAliskey said that the British Army declared war on the people seeking justice that day. Her most abiding memory after that was standing outside the House of Commons and saying that she would not have a tear to shed if 26 coffins were to follow.
2 GEORGE O’NEILL’S EVIDENCE
2.1
QUESTIONS
ON BEHALF OF THE TRIBUNAL
2.1.1
33
Chamberlain Street
Mr O’Neill saw soldiers firing rubber bullets up William Street and ran to his mother-in-law’s house at 33 Chamberlain Street.
He saw a wounded man, he believed to be
Mickey Bridge, carried into the house and taken into the kitchen.
The wounded man was taken into the yard at the back of the house.
Mr O’Neill said that his mother in law
went out into Chamberlain Street and asked a soldier to call an ambulance.
He said that, as far as he knew, the soldier co-operated with the request
because an ambulance arrived. Mr
O’Neill’s brother went with the wounded man in the ambulance.
Three or four soldiers came into the
house and took everyone out and marched them down the street. Mr O’Neill’s 1972 statement records that he was helping
with a stretcher when a soldier told him to ‘get out to F__.’
He said that he cannot now remember whether language like that was used.
Mr O’Neill remembers a small Scottish
soldier shouted at him to not look around or he might be shot.
Mr O’Neill said that he was taken to
Fort George in a wagon. He said
there were about a dozen or more people in the wagon.
The soldiers did not say anything on the journey.
He does not remember anyone being physically abused.
He did not hear a rubber bullet being fired in the wagon.
2.1.2
Fort
George
Mr O’Neill remembers two or three large Alsatian dogs. He remembers one soldier saying ‘Fresh meat for the dogs tonight.’ He said that it was a remark that was intended to intimidate and frighten people.
Mr O’Neill thinks that he was
photographed by the police rather than soldiers.
He does not remember being told that he was under arrest or held in
connection with a possible offence or that he would be prosecuted.
About a week later he had to go to the
police station and Sergeant Dorset took a statement from him.
He was aware that he was making a statement in connection with the
complaint made by his brother in law, George Nellis.
2.2
QUESTIONS
ON BEHALF OF THE SOLDIERS
2.2.1
Fort
George
Mr O’Neill said that he was released from Fort George without being charged. He agreed that no one had used violence on him and that he had not seen anyone being violently treated at Fort George. He agreed that he does not now remember the Scottish soldier who told Mr Nellis that he had shot people in Belfast and would shoot Mr Nellis.
3 PETER STEWART’S EVIDENCE
Peter Stewart was a member of the BBC TV
crew who were to cover the march from behind the Security Forces and provide
cover for the early evening news at 6:00pm.
Mr Stewart worked with a cameraman, Peter Beggin and a soundman.
3.1
QUESTIONS
ON BEHALF OF THE TRIBUNAL
3.1.1
March
Mr Stewart said that it was his understanding that the march had been permitted because of an agreement by the people representing the demonstrators that it would be entirely peaceful and that no weapons on their side would be used. He gained that understanding from talking to the soldiers and the marchers.
Mr Stewart said that he was told that there was an attempt to challenge or overturn the civil power. It was his understanding that there had been disturbances in the city centre to demonstrate that the civil power was breaking down. He picked up this information, informally by talking to various people.
3.1.2
Barrier 14
Mr Stewart said that he saw General Ford at barrier 14. The deference with which General Ford was being treated led Mr Stewart to believe that he was at the centre of operations that day.
Mr Stewart said that he had a conversation with General Ford and his aid and they warned him of a sniper who they said they had seen in a window overlooking the barricade.
Mr Stewart described the general sequence of events at the barricade. He said that missiles were thrown at the barrier and remembers a piece of wood, with nails in it, narrowly missing him. The water cannon was brought up to the barricade. A CS gas canister was lobbed into the cab of the water cannon and the driver, who did not have a gas mask on, was temporarily incapacitated. Mr Stewart said that he took this as evidence that the Security Forces were relaxed because they had been assured that no weapons or missiles were going to be used during the demonstration.
Mr Stewart said that he learned from the army and police that there was no intention that afternoon to use riot gas because of its lingering effects on innocent people’s houses; and that the strong wind that was blowing would have rendered it ineffective.
Mr Stewart and his crew were affected by two bursts of gas that he thought were thrown from the rioters' side of the barrier. He backed off with the water jet spraying uselessly into the air.
Mr Stewart was near General Ford who said ‘you know at this stage, I would be quite within my rights to open fire.’ He asked him whether he had read the Riot Act and General Ford said that a warning had been given. At this point the barricade began to crumble. Mr Stewart said that his recollection is that the Security Forces’ plan was that the water cannon should be their main weapon in defence of the barricade. When it was seen that the main pivot of defence was failing, with the jet blowing in the air; the defence plan of the barricade was seen to be changing.
The protestors began to surge through, at which point the paras who were stationed in side streets were ordered to go through the barricade and begin an arrest operation. The water cannon was disabled and firing water into the air. He thinks that someone said ‘we shall have to put the paras in.’ About two or three minutes after the water cannon was rendered inoperative that the paras went in.
Mr Stewart said that the sum of the impression he received throughout the day was that the demonstrators’ plan was to break through the barricade and burn the centre of town.
Mr Stewart said that he heard preventative rounds going off at the barricade. He could not say what he meant by ‘preventative rounds.’
3.1.3
Rossville Street
Mr Stewart followed the paratroopers through the barricade and ran with them until he reached the waste ground.
He said that he does not recall noticing the rubble barricade. He did not see anyone shot or anyone fire a shot.
Mr Stewart heard an isolated shot that came from the left. He said it sounded different to the sounds he had heard around the barricade. This shot came from his front or his front-left as he was running down either William Street or Rossville Street. He cannot be more specific on his directions. Apart from this, he said that he was not conscious of any other firing as he moved down William Street or Rossville Street.
Mr Stewart did not notice the movement of soldiers or the APCs. He said that the TV equipment meant that he and his crew were chained together with cables. The paras who he had been running with, deployed to his left over the waste ground. He said that they made it quite clear that his team should not go with them because they shouted that it was too dangerous. He said that he has no recollection of seeing soldiers deployed on the Kells Walk/Glenfada Park side of the road.
Mr Stewart said that he got the impression that the troops were a snatch squad who had been ordered to grab the ringleaders and defuse the situation. He said that the troops were not carrying weapons in a firing position. They had riot sticks in their right hands and weapons at their tails.
3.1.4
General Ford and Colonel
Wilford
Mr Stewart said that he ran back to the command car. He watched two men being arrested outside a shop on William Street. He said that he heard two high velocity shots and had the impression that they came from the Chamberlain Street area.
He ran to the bend in William Street and saw General Ford who said ‘now the shooting war has started.’ Colonel Wilford came running up to give a situation report. He said to General Ford ‘we have found two bodies sir and neither of them have a weapon. I am sorry.’ Mr Stewart said that he thinks that this happened half an hour after the soldiers had gone through the barricade. He thinks that General Ford had commented on the ‘shooting war’ at the same time as Colonel Wilford gave the report about finding the two dead bodies. Mr Stewart said that this was his cue to leave because he had got an interim situation report and had to find a BBC studio to prepare the report.
3.1.5
BBC 6:00pm report
Mr Stewart’s report went out on the 6:00pm news that evening. In the report he said ‘the paratroopers raced forward in armoured vehicles to be met with a fusillade of terrorist fire.’ Mr Stewart said that ‘fusillade’ was an exaggeration and an unguarded statement.
3.2
QUESTIONS ON BEHALF OF THE
FAMILIES AND WOUNDED
3.2.1
Overthrowing the civil power
and General Ford
Mr Stewart said that his general impression for the whole day was that demonstrators were intent on overcoming the civil power. He agreed that this was reinforced by his conversations with the Army and police.
Mr Harvey said that Mr Stewart had had four separate conversations with General Ford during the day. Mr Stewart agreed that when he was behind the barrier, General Ford had indicated that a sniper had been seen somewhere to the front of him in and to the left. He recalls General Ford advised him that when the stoning stopped, the sniper fire would begin. His next conversation with General Ford took place after the water cannon had been disabled. Mr Stewart said that because he was asthmatic he was having difficulty breathing but he was still aware of what was going on. Mr Stewart identified himself in a photograph taken at the barricade at this time and Mr Harvey commented that he was not, at this stage, attached to any member of his crew. Mr Stewart’s 1972 statement states that at this point General Ford indicated that he believed he would be within his rights to open fire. Mr Stewart said that that recollection had now faded. Mr Harvey pointed to Mr Stewart’s 1972 statement which said that ‘at about 4:15pm, though I have no clear idea of the exact time, Ford said to me words to the effect ‘Now you are going to see something.’’ Mr Stewart said that he does not recollect that now.
Mr Stewart said that his general impression was that until this time, the whole situation had been relaxed and orderly and then it changed quite suddenly and dramatically when the water cannon was attacked.
Mr Stewart said that he had no recollection of the fire that took place from the time he followed the paratroopers until he returned to the barricade.
3.2.2
Acid bombs and shots at Army
Mr Stewart did not see or hear any acid bombs thrown at any of the troops. He did not see any soldiers injured that day. He did not notice any vehicles damaged by acid bombs or by gunfire.
Mr Stewart said that he had been wrong to say that ‘a fusillade of shots were directed at the troops.’ He did not hear any machine gun fire. He did not see a civilian sniper. He did not hear 200 shots.
3.2.3
Observer A
Mr Stewart is referred to as ‘Observer A’ in his 1972 statement which does not make any reference to the fact that he was a BBC reporter. Mr Stewart said that he was not seen as an intelligence asset.
The BSI adjourned for investigations to be made into why Mr Stewart was referred to as ‘Observer A.’ This was a designation given to him by the Widgery Inquiry. He has no connection with ‘Observer B.’
Mr Stewart agreed that the fact that he was anonymised before the Widgery Inquiry and did not say that he was a journalist was on account of threats that were made to him in consequence of a news bulletin that was made on or after Bloody Sunday. He does not know from whom the threats emanated.
3.2.4
General Ford
Mr Stewart said that he stayed in the vicinity of General Ford and his aide from the time he met him until the troops went through the barricade which was a period of between 20 to 30 minutes. He said that he could have got the information about overthrowing the civil power from General Ford. He could not say whether the information about the protestors intending to burn the town came from General Ford.
3.2.5
Rossville Street
The soldiers made it clear that it was too dangerous to go into the waste ground. Mr Stewart said that he did not instruct the cameraman to take any pictures because he would operate from instinct. Footage would have been taken but Mr Stewart detached himself from his crew to go and talk to General Ford.
Mr Stewart agreed that he had observed the scene quite closely before the paratroopers went in but did not observe what happened after they went in.
Mr Stewart said that the report he made was based on facts gathered from the nucleus of people who were around General Ford at the time. No soldier ever said that the Army had been fired on.
3.3
QUESTIONS ON BEHALF OF THE
SOLDIERS
3.3.1
Army & RUC
Mr Stewart said that he had been given every facility by the Army and the RUC to report what he saw.
Mr Stewart said that when he arrived on the scene, the Security Services were relaxed, though wary, because there was an understanding that the demonstration would be peaceful. He did not get any the impression that there was a desire on the part of the Army to take extreme measures against the marchers.
3.3.2
Barrier 14
Mr Stewart said that the arrest squads were formed up in alleyways or small streets.
Mr Stewart identified General Ford’s aide in a photograph and said that he had chatted to him more or less throughout the relaxed period behind the barricade.
Mr Stewart agreed that the military police officers would have been very close to General Ford throughout the day. He assumed that they would have been present during any conversations that took place.
Mr Stewart said that for most of the time, he would have been wired together with his camera crew. He said that the photograph which shows him not attached to anyone was when he was gathering information from army sources.
3.3.3
Rossville Street
Mr Stewart said that when he first heard shots, he looked around very carefully and none of the soldiers who he was with had his weapon in a firing position. The two shots that he heard where coming from the front, left of him as he ran down Rossville Street.
3.3.4
BBC broadcast and threats
Mr Stewart said that he believed he witnessed a tumultuous and dangerous situation in which a lot of firing had been going on. He said that with hindsight he would have written a ‘fusillade of fire,’ rather than a ‘fusillade of terrorist fire.’
He first received threats after the broadcast and before he made his statement to the Widgery Tribunal. He said that following the threats he made no reference to the shots he believed had been fired towards the troops.
3.4
QUESTIONS ON BEHALF OF THE
TRIBUNAL
3.4.1
Chamberlain Street/Harvey
Street
Mr Stewart did not see the group carrying Jack Duddy. He agreed that it could have been his crew that filmed the footage.
3.4.2
BBC 6:00pm news bulletin
Mr Stewart said that at the time that he left the barricade he knew of two, possibly three fatalities. By the time that his report was broadcast, people knew that the death toll was much higher.
Mr Stewart received threats immediately after his report was broadcast. He said that the threats could have been made because someone had the misconceived notion that the BBC was trying to whitewash the Army'’ activities. Mr Stewart said that this might have been an understandable reaction between the broadcast and what was known on the ground.
4 PROFESSOR WILLIAM McCORMACK’S EVIDENCE
In 1972, Professor McCormack was a lecturer at Magee College. He went on the march with his wife and friends. In February 1998 he had an article published in the London Review of Books in which he described his experience of the march. The article was written very shortly after the events of Bloody Sunday.
4.1
QUESTIONS
ON BEHALF OF THE TRIBUNAL
4.1.1
William
Street
Professor McCormack saw about half a dozen boys run on to the waste ground and throw missiles such as rocks and bits of concrete towards a group of soldiers positioned on the roof of the GPO building on William Street. He said that most of the missiles did not reach the soldiers. This lasted for 20 to 30 seconds. All the soldiers on the roof retreated except one. The soldier dropped to his knee, aimed his rifle and fired one shot at the boys. Professor McCormack said that he viewed the action as benign because there was no visible fatality or injury to anyone. He thought that the soldier must have deliberately missed the boy. Professor McCormack has no recollection of a muzzle flash or rifle jerk. After the soldier aimed at the young boy, no one from the crowd called out. He said that it is possible that the soldier he saw did not actually fire a shot.
Professor McCormack said that the older
members of the community were trying to move the crowd towards Free Derry
Corner. The mood in the crowd began
to change and people began to panic. There was a lot of noise. The belief swept down through the crowd that this was really
serious. It was not the sound of
rubber bullets. Professor McCormack
said that he acted in the belief that it was live fire and the group that he was
with concluded that it was live fire.
4.1.2
Rossville
Street/Free Derry Corner
As his group retreated down Rossville
Street, he heard a sudden and sustained burst of what he believed was live fire.
It probably continued for one minute and all came from the one direction,
the north end of the axis with William Street.
Professor McCormack has no recollection
of seeing the speakers’ platform at Free Derry Corner.
His strongest recollection is of dropping down and trying to move in a
crouched position.
4.1.3
City
Cemetery
Professor McCormack remembers feeling relieved when he reached the cemetery. He heard a single shot. In his article he described the cemetery as a ‘well-known hiding place for local terrorists.’ He said that the shot seemed to come from somewhere uncomfortably close. At the time, he believed that it came from within the cemetery.
4.2
QUESTIONS ON BEHALF OF THE
SOLDIERS
4.2.1
Article
In his article, Professor McCormack described the ‘locally erected speed limits’ in the no-go area. He said that he had never seen them enforced.
He also referred to an improvised score board announcing ‘IRA 16 or 10.’ He said that he was trying to make the point that it was a partisan announcement. He agreed that he understood it to be a scoreboard of people killed by the IRA.
4.2.2
William Street
Professor McCormack said the incident with the youths happened before the main firing took place.
4.2.3
Rossville Street/Free Derry Corner
He agreed that he could not say whether fire was returned against the army.
4.2.3
City Cemetery
Professor McCormack said that he did not see the gunman. He said that he did not invent the idea that the cemetery was a ‘nest for guerrilla activity.’ He agreed that it would have been something that he had gleaned from others.
5 THOMAS HARKIN’S EVIDENCE
5.1
QUESTIONS ON BEHALF OF THE
TRIBUNAL
5.1.1 William Street
Mr Harkin heard a shot from the area between Brewster’s Bakery in Little James Street and the Presbyterian church. He thinks that the shot was from a pistol, hand held gun or a rifle. The shot hit the concrete on the ground.
When Mr Harkin heard the shot he started running towards the Rossville Flats.
5.1.2
Rossville Flats car park
Mr Harkin said that two army vehicles came into the car park area . One of the vehicles came up behind Mr Harkin and hit him. The vehicle swung around in a clockwise direction. Mr Harkin had cuts, bruises and spike marks below his knee. Mr Harkin agreed that Mr Quinn may be correct in his evidence when he said that it was the second vehicle that had hit Mr Harkin. He said that it is possible that the vehicle hit him at the mouth of the car park.
Mr Harkin said that some soldiers got out of an APC. One soldier intended to hit Mr Quinn but hit Mr Harkin instead. Mr Harkin was hit in the stomach with the butt of a rifle. Mr Harkin does not think that he was hit in the face.
Mr Harkin did not hear any shooting when he was in the car park of the Rossville Flats.
5.2
QUESTIONS ON BEHALF OF THE SOLDIERS
5.2.1 William Street
Mr Harkin said that the shot between the bakery and the Presbyterian Church sounded like an air gun. It was totally different from the sound of the firing he heard later that day.
5.2.2
Rossville Flats car park
Mr Harkin said that he was not lying in wait for the APCs. He said that there was no sense in stoning an army vehicle. He agreed that the purpose of throwing stones is to hurt soldiers, not simply to damage Government property.
Mr Harkin did not see Mr Quinn make contact with a soldier. He did not see the incident described by William Harley of someone grabbing a soldier by the throat and pulling him away.
6
HEARING ON THE USE OF INTELLIGENCE MATERIAL IN RESPECT OF CIVILIAN
WITNESSES
In December 2000, the soldiers’ lawyers asked for intelligence material suggesting that some witnesses were members of or associated with paramilitary organisations, or had taken part in discreditable actions including violence against the Army, to be made available.
This week, the Tribunal heard arguments from all the lawyers on whether the BSI should use intelligence material. The Tribunal has to decide whether they must, should or can consider the material and whether they will be helped in their duty to find out what happened on Bloody Sunday by considering it.
The security and intelligence agencies (the Agencies) have confirmed that they hold material on a significant number of witnesses. In some cases there is only a passing reference to the witness and in others, if the material is accurate, it reflects involvement in criminal activities. The Tribunal has to decide what use should be made of the material and how it should be disclosed.
All of the interested parties submitted written arguments to the Tribunal.
6.1
INTRODUCTION BY COUNSEL TO THE TRIBUNAL
Mr Clarke gave an overview of the type of material held by the Agencies and discussed the problems that the material creates for the BSI.
6.1.1
Nature of the material
Mr Clarke said that the material came from the Security Service, the RUC, the Metropolitan Police and the Ministry of Defence (MoD). There is also intercept material (e.g. phone tapping).
The material was generated at different dates from before 1972 until the present.
Mr Clarke and the solicitor to the BSI have looked at material which applies to six witnesses to try and understand the types of problems that it creates. The Tribunal members have also considered one or at most two summaries and at the nature of the underlying material.
Mr Clarke described the nature and quality of the material as highly variable. The material consists of:
· Reports from intelligence agents.
· Reports of sightings by army patrols.
· Records of RUC interviews of suspects.
· Copies of internment orders and papers relating to appeal against internment to the commissioner.
· Reports from Special Branch of movements of individuals through ports or interviews of individuals at ports.
· Copies of papers relating to applications to visit Republican prisoners in prison
· Reports from technical sources such as the interception of telephones and eavesdropping.
6.2
PROBLEMS CREATED BY THE EXISTENCE OF THE MATERIAL
Mr Clarke gave an overview of the problems that the material created from the point of view of different interests.
6.2.1
Problems created for the soldiers
The soldiers say that they are entitled to know of any material that indicates that a witness to the Tribunal was a member of a paramilitary organisation, or associated with paramilitary activity, or otherwise guilty of serious criminal acts.
They say that membership of a paramilitary organisation would be highly relevant to the willingness of the witness to tell the truth; that non-disclosure of a witness’s membership or involvement in the activities of a paramilitary organisation is inconsistent with a thorough inquiry into the events of Bloody Sunday; and that any material that may assist the presentation of their case must, in fairness be made available to them.
They say that questions of resources and the burden of the BSI are simply irrelevant.
6.2.2
Problems created for the Agencies
The Agencies warned that most of the material, if it were to be made public, would need public interest immunity (PII) certificates. (See BIRW week 15 para 6.1 for explanation of PII certificate.) This would involve potentially thousands of documents.
The labour involved in deciding whether PII certificates should be issued, and what their contents should be, is huge. It would be necessary to consider whether and to what extent it was against the public interest for each piece of material to be made public. The Agencies described this as a mammoth task and said that it would create a similar workload for the Tribunal because they would have to deal with the PII claims.
6.2.3
Problems created for witnesses
Some witnesses will complain about the use of intelligence material to accuse them of discreditable activities of which they have never been charged. Mr Clarke suggested that it was unlikely that the authorities could invent material to try and smear a witness’s name without it being noticed. (This possibility had been suggested in the press.)
There may be wide room for dispute as to the evidential value, if any, and accuracy of the wholly untested material. To be treated fairly witnesses would have to be allowed the opportunity to refute the allegation. They would have to be allowed access to the underlying material and an entitlement to question their accusers, including informers who may no longer be available. If the material was the subject of a valid PII claim there could be no public investigation at all.
Allegations of this nature would cause serious prejudice, possible irreparable; reputations might be ruined, employment put at risk, bad feeling generated and disagreements rekindled; at the worst, violent reprisals might follow. It may be impossible to discover whether there is any truth in the allegation because of PII claims or because witnesses may no longer be available.
Mr Clarke said that some of the material consists of statements which are said to be admissions of IRA membership. In the past, the penalty for informing has on occasion been death. If this type of material was revealed about a witness it might imperil his safety.
The witnesses would say that the use of bullet point summaries (see para 6.4 below) is quite insufficient to enable them to deal with any allegations that may be made.
6.2.4
Problems created for the BSI
Mr Clarke said that in order to decide whether the army fired without justification, the BSI has made exhaustive efforts to identify and examine any and every soldier who may have been in the firing line. No one, except Martin McGuinness and Thomas McGlinchey, has admitted membership of the Provisionals in 1972. The position in respect of the Officials is better in that Reg Tester has come forward to give evidence under his own name and five members have applied to the Tribunal for anonymity.
The soldiers say that it would not be fair if the BSI did not attempt to find out who were members of either branch of the IRA. It would not be fair if the BSI accept without further inquiry statements that the Provisionals were not engaged, any more than one could accept without further inquiry statements by or on behalf of the army that all firing was justified.
However a decision to require production of all of the material will create many problems, some of which it will be unable to overcome. It is bound to generate a swarm of PII claims. If the PII claims are successful, the material will never be available.
The Tribunal must be as fair as it can to individual witnesses. This opens the prospect of a series of trials. The end result might be that the Tribunal could not fairly conclude that the information in relation to any given witness was accurate.
A further complication arises with discreditable activity which took place after Bloody Sunday. If the activity does not relate to the events of Bloody Sunday it may not fall into the Attorney General’s assurance and the witness could not be compelled to answer any question on the ground that his answers might incriminate him.
The function of the BSI is to discover the truth of what happened on Bloody Sunday. Mr Clarke said that it is not an inquest into what the people of this city, who have relevant evidence to give in relation to Bloody Sunday, did between 1972 and 2001. This is not an inquiry into anything other than Bloody Sunday. In any case, if discreditable activity was established in respect of any witness it would not necessarily invalidate their evidence about what happened on Bloody Sunday because the evidence of most of the witnesses does not stand alone.
The amount of work involved in working through the intelligence material would prevent attention to the gathering, analysing and deployment of evidence of what actually occurred on Bloody Sunday.
6.2.5
Problems created for the public
The public would be legitimately concerned that the BSI was spending time in investigating incidents remote in time and circumstance from Bloody Sunday, unless so obviously relevant to the BSI’s search for the truth that it had to be done.
6.3
CATEGORIES OF MATERIAL AND THE TRIBUNAL’S PRELIMINARY VIEW
In February, the Tribunal sent a letter to all the lawyers suggesting that the intelligence material could be divided into two categories. The Tribunal also indicated a preliminary view on what should be disclosed.
6.3.1
Directly relevant to the subject matter of the BSI
Information showing that somebody was a member of, or associated with paramilitary activity, or took part in paramilitary activities on Bloody Sunday was described as ‘relevant.’
Directly relevant material falls into three categories:
· Information that threw any light either on the plans made by any paramilitary organisations for Bloody Sunday or on the actual events of the day.
· Material that would identify people who might reasonably be supposed to be likely to be able to provide information about paramilitary plans for the day or events of the day.
· Material that contains information which tends to show that witnesses have or are able to provide information about paramilitary planning or events of that day.
6.3.2
Information relating to the credibility of the witness
The second category of information was anything in the intelligence material that did not fall within the previous category but which tended to show that individuals were active in para-military organisations or in other discreditable activities.
6.3.3
The Tribunal’s preliminary view
In the letter, the Tribunal said that they would ask the Agencies for material that was directly relevant.
They said that, subject to hearing legal arguments, they will not ask for information on credibility apart from the information about criminal records of individuals (i.e. criminal convictions). This is because the information would not be covered by the Attorney General’s assurance (see para 6.2.4 above); it would be unfair to ask questions of a witness if the BSI was not prepared to investigate the validity of such an allegation; such peripheral information is not relevant to the BSI and would divert the resources of the BSI without any significant increase in information.
6.4
SUMMARIES
The Agencies have proposed giving the BSI summaries of the intelligence material. This would mean that a bullet form summary of the material would be made public. The underlying material would be available for inspection by the Tribunal. All of the interested parties are against the use of summaries.
6.5
OBSERVATIONS BY COUNSEL FOR THE TRIBUNAL
6.5.1
The use of summaries
Mr Clarke said that the use of summaries is extremely problematical. The bullet points summarise the allegations contained in the material. They do not establish any truth in the allegations or allow the witness to deal with them.
6.5.2
Balancing competing interests
However serious the allegations against the soldiers are, the BSI is not a criminal trial. Mr Clarke said that the Tribunal’s function is to determine what happened on Bloody Sunday. This involves hearing the evidence of witnesses who have rights to fair treatment, and affects other witnesses such as informants who also have rights. The Tribunal will have to decide how best to balance the competing interests in the light of its overriding objective to discover the truth of what happened on Bloody Sunday.
6.5.3
The relevance/credibility categories
Mr Clarke said that it might be helpful to keep the relevance/credibility distinction in deciding what the Agencies should be asked for and how they should be used. He suggested that the relevance category needed to be refined.
The BSI is looking for material on witnesses who were or may well have been at the time of Bloody Sunday, members of or involved in the activities of one or other paramilitary organisations, or who for any other reason are likely to be able to provide information about the planning of those organisations for Bloody Sunday or their participation, if any, in the actual events of the day. This does not solve the problem of the PII claims which could mean that even if the Tribunal did decide it wanted to see material in the relevance category, a lot of it would not be available.
Mr Clarke suggested that an alternative approach might be for a summary and the underlying material to be made available to counsel for the Tribunal and for a decision to be made about what could be used in public based on whether it could be proved. This would mean that material which could not be proved would be excluded.
Mr Clarke said that the Tribunal should consider whether to prevent the production of credibility material but allow it in exceptions, if the witness’s evidence was very important and the matter going to his or her credibility very significant. This would involve a lot of work for what might be limited benefit.
Mr Clarke said that the Tribunal should consider whether the use of intelligence material, whether it goes to relevance or credibility, is fraught with so many difficulties that to use the material would derail the BSI. Additionally the quality of the material may be so debatable that it should not be used.
6.5.4
Questions for the Tribunal
Mr Clarke said that the Tribunal would have to consider the following questions:
· Should they ask the Agencies for material in the relevance category or for material in the relevance and credibility category?
· How should the categories be defined?
· Should the material be provided in summary or in another way?
· What should the procedure be for deciding whether any document fell within the relevant category?
6.6
SUBMISSIONS ON BEHALF OF THE AGENCIES
The Agencies include the RUC, the Metropolitan Police Service and the Security Service. (The Ministry of Defence agree with the arguments made on behalf of the Agencies.)
Mr Sales, the lawyer acting on behalf of the Agencies, said that the Agencies are neutral on the question of whether the BSI should use intelligence material. He said that the BSI should decide what stance to take in balancing the interests of the civilian witnesses and the soldiers. The Agencies will be guided on what information the BSI requires.
They asked that the BSI give them clear criteria on how their records should be searched. They also said that they want a flexible and efficient method of dealing with the mass of underlying sensitive material.
6.7
SUBMISSIONS ON BEHALF OF SOLDIERS
The lawyers acting on behalf of the soldiers argued that the Tribunal should consider intelligence material that was both directly relevant and that went to the issue of credibility.
6.7.1
Submissions on behalf of the clients of Anthony Lawton
Mr Lloyd Jones argued that all the relevant material should be made available to the Tribunal and to all the interested parties; subject only to such restrictions as may be necessary to protect life.
He said that the definition of what material should be included in the relevance category should be extended to cover material of any date and origin and not restricted to the immediate run up or aftermath to the day. He said that because of the complexity of the Inquiry, the boundaries of relevance will be constantly changing and so should be kept under review and the guidelines revised from time to time.
Mr Lloyd Jones disagreed with the Tribunal’s provisional view that material on credibility of the witnesses is not relevant to the Inquiry and said that an essential part of the BSI involves forming a view on the veracity of the witnesses before it. He said that the exclusion of any material, which shows that a civilian witness is, or has been, a member of a Republican paramilitary organisation or has been involved in paramilitary activities, incompatible with a full, open, complete and thorough Inquiry into Bloody Sunday.
He argued that membership of or association with a paramilitary organisation would be highly relevant. He cited excerpts from the IRA’s ‘Green Book’ and said that it is relevant to the willingness of a witness to tell the truth about the events of Bloody Sunday.
Lord Saville reminded Mr Lloyd Jones that the intelligence material does not establish the fact that a witness is himself a member of the IRA. The piece of paper that says an individual was a member of the IRA does not prove that he was.
Mr Lloyd Jones said that association, short of membership might be relevant in some circumstances. It is not open to the Tribunal to assume that the material could not satisfy it that an individual was a member of a terrorist organisation. He said there are likely to be instances where the Tribunal could conclude, on the basis of the material, that somebody was involved in a terrorist organisation. The Tribunal should not deny themselves access to material.
Mr Lloyd Jones said that the Tribunal had asked for information on the disciplinary records of the soldiers. This is information that is not limited to a criminal conviction. The Tribunal should be even handed in its approach to evidence of reprehensible conduct on the part of all witnesses. It had accepted the relevance of previous dishonest conduct by a soldier, whenever and wherever committed.
Mr Lloyd Jones said that counsel to the BSI rather than the Agencies should be given the task of deciding what material is relevant. He accepted that it is unsatisfactory that PII may mean that witnesses would have no chance to answer or deal with the allegations but the alternative would be that the Tribunal accepted that there was relevant material which goes to the questions they have to decide but which they could not look at because it would be unfair to do so.
6.7.2
Submissions on behalf of the clients of Robert Aitken
Mr Elias said that it is not a question of the intelligence material having to prove anything. The material raises a matter that the Tribunal have to consider. To take the position that unless the material of its own merit establishes a position of membership of the IRA is to risk using the material in an improper way.
The Tribunal is looking at the witnesses’ evidence and is assessing whether it can rely on it or not. Material that fairly raises the question of whether someone is a member of the IRA is relevant. The Tribunal’s task is to look at the evidence and assess whether they can rely upon it or not.
Mr Elias said that the use of the summaries would be a pragmatic approach. He suggested that the parties be asked to prioritise the witnesses that they want to have scrutinised.
Mr Elias argued that reasonable and rational people would be horrified if they believed that the Tribunal was turning down information which may cause it to take a different view of witnesses from that which it might otherwise take.
6.7.3
Submissions on behalf of the clients of Jacqueline Duff
Sir Allan Green argued that, if full disclosure were not possible, summaries would be better than nothing. He said that there may be people whose evidence is pivotal and their evidence and backgrounds could be scrutinised more than people whose evidence is not controversial or whose evidence is corroborated by a large number of other people.
6.8
SUBMISSIONS ON BEHALF OF THE FAMILIES AND WOUNDED
Lawyers acting on behalf of the families and wounded agreed with the Tribunal’s preliminary view that it should not request material that goes solely to credibility. They also challenged the view that the intelligence material deemed to be relevant should be used.
6.8.1
Submissions on behalf of the family of James Wray
Lord Gifford pointed to two pieces of legislation to argue that the intelligence material should not be used. The Regulation of Investigatory Powers Act 2000 states that material gathered from telephone intercepts cannot be used in legal proceedings. The Security Services Act 1989 states that information gathered by the security services can only be used for the purpose of detecting serious crime. Whilst the Tribunal has the power to require the security services to produce the material, they should bear in mind that they should not ask for it unless disclosure is essential in the interests of justice.
Lord Gifford said that the judgments of the European Court of Human Rights make it clear that storing secret information about a citizen’s activities is in breach of his right under Article 8 of the Convention (respect to an individual’s private and family life) and so is any subsequent use of the information. There are exceptions to this right but Lord Gifford argued that the BSI did not fall into any of those exceptions.
Lord Gifford asked the Tribunal to balance the following considerations:
· What is acceptable in a democratic society.
· The gravity of the interference with the witness’s rights.
· The advantages accruing to the soldiers from the interference.
He said that secret material, by its nature, is unreliable, unverifiable and untestable. Even if an informer says something, it is not necessarily true. He said that the material from the personnel files of the soldiers is different because disciplinary findings will have been made after an inquiry and the soldiers will have had the opportunity to be heard in their defence. In contrast, intelligence material, at its highest are allegations which cannot be properly investigated or refuted.
6.8.2
Submissions on behalf of Michael Bridge and Michael Bradley
Mr Morgan asked the Tribunal to consider the Data Protection Act 1998. He said that the credibility material is not necessary for the Tribunal to fulfil its duty in deciding the truth about what happened on Bloody Sunday.
6.8.3
Submissions on behalf of the McGuigan and Nash families and Daniel
Gillespie
Mr Coyle said that there could be a multiplicity of innocent explanations for what is alleged to be association with members of the IRA. The foundation stone for suggesting to someone that he or she is associated with the IRA could be built on mistaken material.
6.8.4
Submissions on behalf of the clients of Madden and Finucane Solicitors
Mr Lavery said that the Supergrass system collapsed because courts refused to accept their evidence. He asked whether the Tribunal should embark on a long trawling exercise in the hope of establishing that a number of witnesses are members of the IRA.
Mr Lavery said that the Tribunal needed to maintain a procedure which can be effective. To be effective, it needs to continue to engage public confidence and report within a reasonable time. Mr Lavery said that it may appear to some people that the Tribunal were trying to find out how many people in the crowd were members of the IRA. He said that the exercise was unnecessary and unlikely to produce anything of substance.
6.9
SUBMISSIONS ON BEHALF OF NICRA
Sir Louis Blom Cooper said that fairness demands that the civilian witnesses should not be questioned as to their creditworthiness or otherwise on the basis of untested and untestable intelligence material.
6.10
SUBMISSIONS ON BEHALF OF A CIVILIAN WITNESS
Denis Boyd represented Sean Collins, a witness who was due to give evidence earlier in the week.
Mr Boyd said that he was in agreement with the submissions made by the families and wounded and added some further points.
Mr Boyd said that use of the intelligence material would be a breach of Article 8 rights (see para 6.8.1 above). He said that the reliability of the material is suspect. Side issues and side trials would evolve as a result of the material and the allegations they contained.
The Tribunal has to be fair and impartial and use methods best suited to carrying out the inquiry in the fairest, most thorough and impartial way possible without incurring unnecessary delay or expense. If intelligence material was used to credit it would place all of this in jeopardy. One of the paramount considerations of the Tribunal is to retain public confidence. This is at risk if the focus of the BSI moves to the people of Derry.
Mr Boyd warned that witnesses may not come to the BSI at all or they may give evidence in a less than truthful manner. He used the example of a witness who thought they had been in the company of someone they suspected to be in the IRA. That witness might alter the emphasis of their evidence for fear that they would be seen as someone associated with the IRA member.
The Tribunal will continue to hear submissions next week.
Timetable of proceedings
Tuesday 15 para 1
Wednesday 16 para 2 to 5
Thursday 17 interlocutory hearing
Friday 18 interlocutory hearing
For Peace Justice & Human Rights
