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27 - 31 MAY 2002
SUMMARY OF EVIDENCE
This week the Tribunal heard from two Stormont officials, Dr Robert Ramsay and Sir Kenneth Bloomfield, who held the roles of Principal Private Secretary to Brian Faulkner and Deputy Secretary to the Northern Ireland Cabinet respectively. David Gilliland, a junior officer at Stormont who assisted at meetings of the JSC (Joint Security Committee), also gave evidence to the Inquiry.
Robert Carson, an RUC officer stationed near Barrier 20 on Bloody Sunday, told the Inquiry that he had seen two cars (one of which contained the wounded Gerald Donaghy) ram the barrier. He also told the Inquiry that the soldiers at the barrier had come under fire, to which they had responded by firing six shots.
OTHER ISSUES
The Tribunal heard applications on behalf of the Security Services relating to the agent codenamed ‘Infliction’, who claims that Martin McGuinness admitted to him on several occasions that he had fired the first shot on Bloody Sunday. This matter is dealt with in Paragraph 5.
The Tribunal also announced its decision to refuse the screening application made by Dr John Martin, a forensic scientist who gave evidence to the Widgery Tribunal concerning matters such as the significance of lead on the hands and clothing of the deceased. However, measures will be put in place to ensure that Dr Martin is not photographed whilst entering or leaving the Guildhall, and that his physical appearance does not appear on video transmission, other than on the screens in the Guildhall. The Tribunal ruled that the aforementioned measures would alleviate Dr Martin’s fears as to his safety.
Mr Macdonald, Counsel for Madden & Finucane, sought to raise with the Tribunal the issue of a letter received from John Tate, Solicitor for the Inquiry, in response to a request for information made by Sarah McSherry on behalf of Madden & Finucane. Mr Tate refused to provide information concerning the queries raised in the letter and wrote that he viewed the letter as “quite an inappropriate attempt on the part of one of [Madden & Finucane’s] unqualified assistants to supervise the working of the Inquiry. That is not a function of any of the parties”. Mr Macdonald said that the tone of the letter suggested that the families and their representatives were merely spectators and were attending the Inquiry on sufferance, which went contrary to Section 6 of the Human Rights Act, under which the interested parties have a legal right to participate in the proceedings.
Lord Saville responded that, as far as the Tribunal was concerned, it regarded all interested parties as an integral part in assisting them in trying to reach the truth and, to that end, suggestions and requests for information were both welcome and encouraged. Despite Mr Macdonald’s protestations, he refused to accord any further time to what he described a ‘rowette’, which had developed between the two correspondents.
A full transcript of the proceedings is available at http://www.bloody-sunday-inquiry.org.uk.
1. robert ramsay’s evidence
Dr Ramsay was Principal Private Secretary to Prime Minister Brian Faulkner at the time of Bloody Sunday, having previously served as Private Secretary in the Ministry of Commerce and the Ministry of Development. As Principal Private Secretary, Dr Ramsay worked closely with Brian Faulkner and had access to policy papers concerning security.
1.1 questions on behalf of the tribunal
1.1.1 Violence on civil rights and anti-internment marches
He said that, in the months following the introduction of internment, community polarisation increased dramatically. Illegal protest marches took place almost every weekend, often degenerating into violent confrontations with the army. He could not recall shots ever being fired by either wing of the IRA or by civilians during civil rights marches prior to Bloody Sunday, but said that the level of violence was high due to the use of petrol and nail bombs.
Given that recollection, he was asked to explain what was meant by Brian Faulkner’s press statement issued on the evening of Bloody Sunday stating that “the Government know [sic] that the IRA would use such marches wherever possible for attacks on the population at large”. Dr Ramsay could not recall whether he had drafted the press statement, but told the Inquiry that there was a great deal of intelligence at the time concerning the infiltration of the civil rights movement by IRA members or their close associates. He said that whilst the IRA might not have actually been using the marches to conduct shootings or bombings, they were deliberately using them to stir up the tension on the streets, leading to rioting and collateral damage to property.
1.1.2 Joint Security Committee meetings
Dr Ramsay said that the Northern Ireland Government’s response to the security situation at the time was organised through the Joint Security Committee (JSC), chaired by Brian Faulkner and comprising John Taylor, Commander Anderson, the General Officer Commanding (GOC), the Chief Constable of the RUC, the Cabinet Secretary, the UK Representative and the Government Security Advisor, amongst others. Dr Ramsay himself also attended most meetings, but would not necessarily stay for the entire meeting.
He told the Inquiry that the JSC meetings dealt almost exclusively with general, strategic issues concerning security, as opposed to operational details of security interventions, although the GOC might inform the JSC that he would be devoting a particular level of manpower to the handling of a particular march.
1.1.3 Responsibility for and knowledge of security plans for Bloody Sunday
Mr Clarke presented a number of documents to Dr Ramsay and asked him to explain the roles and responsibilities of the different civil and security force bodies in relation to security planning in general and to the Bloody Sunday march in particular.
1.1.3.1 The GOC and the Westminster Government
Dr Ramsay told the Inquiry that the GOC and Commander of Land Forces would have been responsible for deciding what attitude and what approach to take towards the planned Bloody Sunday march. He said that the operation would have been cleared with the MoD (Ministry of Defence) in London as opposed to the Stormont Government, as issues such as the planned use of snatch squads would have been deemed as being operational and therefore outside the influence of the JSC.
He added that, although the GOC kept the JSC briefed in general terms with regard to security practices, there had been several key incidents for which the JSC had not been briefed. By way of example, he said that the Stormont Government had not been informed that torture techniques were being used as part of internee interrogation procedures, but that this practice had presumably been cleared with the Westminster Government.
1.1.3.2 Government Security Unit
Dr Ramsay told the Inquiry that, following the introduction of internment, the three-way relationship of civil power / army / police developed into a close daily co-operation. The Government Security Unit, headed by the Government Security Advisor, William Stout, was set up to administer this relationship, but had no role in security planning.
1.1.3.3 Director of Operations Committee
Dr Ramsay was shown a record of the Director of Operations (DOP) Committee meeting of 26th January 1972, attended by the DOP (whom Mr Clarke identified as the GOC, General Tuzo), the Director of Intelligence and the UK Representative, amongst others. The minutes of the meeting detail the operational arrangements made for Bloody Sunday, such as where to halt the march, illustrating the fact that such details were discussed at Stormont prior to the march being held. Dr Ramsay had no knowledge of the workings of the DOP Committee, and did not believe that he had been privy to the minutes of his meetings.
He also said that he did not believe that Brian Faulkner would have attended its meetings, or been aware of the contents of those meetings, as he was adamant that there was no operational link between civil government and security at the time of Bloody Sunday.
1.1.3.4 The JSC
He was also shown a document in which Mr Stephens, a senior official in the MoD at the time of Bloody Sunday, wrote: “the choice of tactics for actually dealing with the [Bloody Sunday] march is essentially a matter for the JSC, which is due to meet as usual on Thursday morning, 27th January”.
Dr Ramsay reiterated that the JSC did not discuss operational tactics for dealing with the Bloody Sunday march, and said that such matters were not discussed in meetings with the GOC or Chief Constable, held in parallel to the JSC meetings.
1.1.4 Relationship between Westminster and Stormont
Dr Ramsay said that the Westminster Government’s policy in relation to Northern Ireland, particularly with regard to security policy, was ‘perfidious’, ‘hypocritical’ and ‘confused’.
He said that, whilst overtly supporting Brian Faulkner in his security policies and his reform packages, the Westminster Government was in fact already preparing for direct rule, which amounted to perfidy in his mind. He added that their policy was hypocritical as they disarmed and disenfranchised the police force in Northern Ireland, whilst supporting robust matters of crowd control in England.
Although he acknowledged that these issues were exceptionally frustrating to Brian Faulkner, he said that they had not led him to implement severe security policy changes in an attempt to regain control of the situation.
1.1.5 Perception of the army
Dr Ramsay told the Inquiry that Brian Faulkner had ‘reluctantly accepted’ the army’s involvement in security matters, regarding them as a blunt instrument in a civil setting and apprehending the constitutional awkwardness that their presence would entail, given the fact that the army took orders from Westminster as opposed to the Northern Ireland Government.
He went on to say that there were elements of the army’s policies and practices which caused concern to the civil authorities, stating, for example, that their intelligence material often appeared naïve. He also said that the suggestion by the civil authorities that it might be better in some circumstances to shoot over the heads of rioters or to shoot to wound ‘cut no ice’ with the army which head the position that soldiers were trained to ‘shoot to kill’ and entitled to do so under the rules of the ‘Yellow Card’.
1.1.6 JSC meeting of 6th January 1972
The minutes of the JSC meeting record an approach made to Brian Faulkner by members of the Strand Traders’ Association (STA), asking him to meet with them to discuss the spread of violence in Derry, and the decision made to send the GOC to discuss the situation with them. However, Dr Ramsay had no recollection of any approach made to Brian Faulkner by representatives of the STA.
He was then shown the report made by General Ford to the GOC following his meeting with the STA. General Ford reported that the STA had requested curfews and shootings on sight, amongst other things. The report went on to present an analysis of the security situation in Derry, in which General Ford stated: “I am coming to the conclusion that the minimum force necessary to achieve a restoration of law and order is to shoot selected ring-leaders amongst the DYH [Derry Young Hooligans], after clear warnings have been issued”. General Ford continued the report, recommending the use of high-velocity .22 ammunition as opposed to the .762 millimetre bullet, as a more fitting type of ammunition in civil settings, and concluded: “if this course is implemented, as I believe it may have to be, we would have to accept the possibility that .22 rounds may be lethal… I am convinced that our duty to restore law and order requires us to consider this step”.
Dr Ramsay told the Inquiry that he had never seen the document before, and was sure that Brian Faulkner would not have been aware of its contents. He added that he did not think that the GOC would have endorsed the recommendations made by General Ford, as he was a very ‘civilised and humane man’.
1.1.7 Significance accorded to Bloody Sunday march
Dr Ramsay said that Brian Faulkner would have seen the Bloody Sunday march as having the potential of presenting greater problems than elsewhere due to its location. He explained that the tension in Derry was historically greater than anywhere else in Northern Ireland, due to the deep-seated sense of grievance felt by those living in the city, some of which he felt was justified and some of which was not. This tension meant that the scale of disorder in Derry was likely to be greater than anywhere else.
He said that, prior to the 30th January, Brian Faulkner had not regarded the march as any kind of test of the resolve of the Stormont Government, or as a watershed moment. However, he also told the Inquiry that Brian Faulkner had had an unusual feeling of foreboding concerning the Bloody Sunday march, since a personal friend of his in the police force in the northwest of Northern Ireland had called him informally to warn him that the IRA were planning a ‘spectacular’, under the cover of the march.
1.1.8 JSC meeting of 27th January 1972
The minutes from this meeting record the proposed tactics for dealing with the Bloody Sunday march, namely to stifle the branch of the march coming from Shantallow ‘at source’, and to block the main bulk of the march from entering William Street. The minutes then state that “the operation might well develop into rioting and even a shooting war”. Dr Ramsay had no recollection of seeing Special Branch assessments which might explain what was meant by the reference to a ‘shooting war’, and said that it was a usual warning given before such marches.
1.1.9 Counterdemonstration planned for Bloody Sunday
Dr Ramsay said that he had been aware at the time of the counterdemonstration planned for Bloody Sunday by Ian Paisley’s Democratic Unionist Association (DUA), but that there had been no assurance given by the Northern Ireland Government to the DUA, concerning the halting of the NICRA march and no discussion at Stormont of any deal done with the DUA.
1.1.10 Faulkner’s private response to Bloody Sunday
He said that Brian Faulkner had been appalled by the loss of life on Bloody Sunday and that he did not believe that most of the victims had been terrorists, as he doubted the possibility of 12 gunmen being killed in a crowd situation without the infliction of any civilian casualties. Brian Faulkner also purportedly added: “this is London’s disaster, but they will use it against us”.
1.2 questions on behalf of the families and wounded
1.2.1 Political context
Dr Ramsay agreed that his belief at the time was that there could be no progress on the underlying social and economic problems of Northern Ireland until the security situation had improved, as it was impossible to organise constitutional reform amidst such unrest.
Dr Ramsay was read the record of a meeting of the Civil Service Advisory Committee, held in November 1971, which Counsel said demonstrated concern felt by civil servants that the philosophy adopted by the Government in its approach to the minority community in Northern Ireland was ambiguous. It read: “the Government need to decide upon its basic philosophy in relation to the minority. Did it consider itself at war with the minority or did it believe in treating it fairly, firmly and openly? At present the Government’s attitude was not clear”.
Dr Ramsay acknowledged that, in 1971, there was still a lot to be done in terms of reforms, but added that he felt that Brian Faulkner had been on the right track, and that, had he been allowed to implement his reform package, the outcome would have been better than the current ‘Mickey Mouse arrangements’ foisted on the people of Northern Ireland by London, Dublin and America. Although he agreed that one of Brian Faulkner’s primary focuses had been security, he dismissed as ‘over-simplified’ Counsel’s suggestion that there was a real tension between the Westminster Government, which was looking for a substantial reform package and trying to persuade Faulkner in that direction, and Stormont, which upheld the view that security was more important than reforms.
1.2.2 Political significance of Internment
Dr Ramsay was present at the Downing Street meeting between Brian Faulkner and the British Prime Minister, Mr Heath, where the latter accepted the proposal to introduce Internment, but added: “if Internment was tried and did not succeed in improving matters, the only further option could be direct rule”. However, he told the Inquiry that Brian Faulkner had received personal and private assurances from Mr Heath that he would not introduce direct rule.
He could not remember whether the Westminster Government had forced the ban on parades, as a sort of political quid pro quo for the introduction of Internment, but said that the ban was the only sensible option, given the security context.
1.2.3 Responsibility for security matters in Northern Ireland
Dr Ramsay repeated his belief that the Stormont Government had been put in a difficult position vis-à-vis security since the introduction of the army in 1971: although the Government had constitutional responsibility for security, operational control lay with the army and therefore with Westminster. He clarified that there was close consultation with the police and with the Stormont Government, but that the Stormont Government could not and did not give orders to the army.
He said that the majority of the population in Northern Ireland at the time would not have been aware of the constitutional and practical difficulties brought about by the introduction of the army and would have looked to Stormont to restore law and order, and agreed that, within the unionist community, there was a section of people who felt that security was not going far enough.
1.2.4 Role of the RUC vis-à-vis the army
Dr Ramsay told the Inquiry that the police did have influence over the army on the streets, but that their main contribution was in terms of intelligence and local knowledge. He did not want to go so far as to say that the police were actually acting in support of the army, but said that they were very much the ‘junior partner’ in dealing with law and order.
It was his belief that, in relation to Bloody Sunday, the decision to launch a scoop-up arrest operation would have been made by the GOC. However, it was pointed out to him that, constitutionally, it should have been the divisional police commanders, not the army, taking such a decision. Dr Ramsay could not explain the constitutional situation, and could not recall the division of responsibility between the police and the army being discussed at Cabinet level or by the JSC.
1.2.5 Role of the Northern Ireland civil authorities vis-à-vis the army
1.2.5.1 Constitutional / legal position
Dr Ramsay was shown a number of documents compiled in the weeks leading up to Bloody Sunday, in which there is reference to the potential loss of life resulting from marches. One such document was a letter from the GOC to Brian Faulkner, in which he wrote: “I know you will agree that the Security Forces must be given the latitude to stop the marches at the best tactical position. The alternative is to accept a shambles and possibly a blood bath”. He was asked to explain what role the civil authorities took to ensure that there was a minimum threat of loss of life.
Dr Ramsay said that, whatever the overall policy or the law, when troops are on the streets, people are at the mercy of a ‘19-year old squaddie with a lethal weapon in his hand, and on his interpretation as to whether his life was in danger or not’. He said that it was not up to the civil authorities to impose restraints upon the army, as this was done by the law of the land to which soldiers were subject.
He rejected the suggestion that the civil authority had washed its hands of its responsibility for the control of the army in the streets, saying that it appeared in public to be taking more responsibility than it actually had.
1.2.5.2 Meetings between the Prime Minister and the GOC
Dr Ramsay said that the official forum for discussing and deciding upon matters relating to security was the JSC. However, he agreed with Sir Kenneth Bloomfield’s statement to the inquiry, that private meetings did take place between the Brian Faulkner, the GOC and the Chief Constable of the RUC in which security matters were discussed, but added that no decision was ever made privately, without having been put to the JSC.
1.2.5.3 Pressure brought to bear on the army
Dr Ramsay rejected Counsel’s suggestion that Brian Faulkner and the Stormont Government had been putting pressure on the Commander of Land Forces and the GOC to take more extreme measures in dealing with banned marches, due to political pressures. He denied that the Prime Minister had ever given the army the impression that they should restore order by all means, even if it involved shooting civilians in a riot situation.
He was read extracts from the Westminster Hansard, in which Brian Faulkner is quoted as saying: “Let me utter a very strong warning: the army is not prepared to take half measures with terrorists. At this moment, any soldier seeing any person with a weapon or seeing any person acting suspiciously may fire either to warn or may fire with effect, depending on the circumstances and without waiting for orders from anyone”. The Prime Minister went on to say: “People who go on the streets in a riot situation deserve what is coming to them and the Security Forces are prepared to take whatever initiatives lie to their hand to bring peace to this community”. The Prime Minister had also clarified that his statements were the result of consultations with both the army and the police.
Dr Ramsay could not recall being present at the aforementioned consultations between Brian Faulkner and the army and police.
1.2.6 MoD document, compiled prior to 27th January 1972 (date unknown)
Dr Ramsay was also read part of a document compiled by the MoD, which read: “we must take stronger military measures… The only additional measure left for physical control is the use of firearms, namely ‘disperse or we fire’. Inevitably, it would not be the gunmen who would be killed, but innocent members of the crowd. This would be a harsh and final step… It cannot, however, be ruled out. We must await the outcome of the events planned for the weekend 29th/30th January to see what effect our firmer measures have”.
Dr Ramsay did not know what the statement ‘firmer measures’ referred to, and was certain that no such documentation or sentiment had ever been put to the Stormont Government.
1.2.7 Meeting at Downing Street on 27th January 1972
Dr Ramsay did not think that the meeting between the two Prime Ministers was specifically related to the upcoming Bloody Sunday march, but rather one of the regular stocktaking meetings between the two men.
Although Lord Kilclooney, in his evidence to the Tribunal, thought that the reason for the meeting had been to appraise Mr Heath of the march (although he had not attended the meeting himself), Dr Ramsay refuted any suggestion that the purpose of the meeting was for Brian Faulkner to get clearance from the UK Prime Minister for tougher security measures, about to be implemented on Bloody Sunday.
1.2.8 Meeting at Downing Street on 4th February 1972
Dr Ramsay attended the meeting that took place at Downing Street between Mr Faulkner and Mr Heath, and was shown a note of the meeting, made by officials at Westminster, which reported Faulkner as saying: “Outside Ireland, it was notable that the world press had, by and large, not overlooked the guilt of the parade organisers in Londonderry. In the longer term, it might be the case that the terrible events in Londonderry would be seen to have cleared the air, once the initial hysteria had subsided”.
Dr Ramsay could not explain what was meant by the comments attributed to Brian Faulkner, and suggested that the Inquiry locate the parallel document he would have compiled following the meeting.
1.2.9 Telephone call warning of IRA ‘spectacular’
Dr Ramsay told the Inquiry that all phone calls received by the Prime Minister, apart from personal calls from his wife or brother, would have been monitored and recorded.
Details of the particular telephone call received by the Prime Minister prior to Bloody Sunday would have been passed on to the security services. The call would have been transcribed and should now be in the Public Records Office, along with all other telephone records.
1.3 questions on behalf of the soldiers
1.3.1 General Tuzo, the GOC
Dr Ramsay said that General Tuzo was a thoroughly decent and humane soldier. He said that he was very scrupulous about ensuring that his soldiers always operated within the law. He agreed with the fact that the Government would sometimes ask the army to adopt more ‘effective’ security measures, but that General Tuzo would not comply, out of their fear for the lives of innocent civilians.
2. david gilliland’s evidence
Mr Gilliland was the Press Officer with the Northern Ireland Government until the resignation of Prime Minister Chichester-Clarke in March 1971. He remained at Stormont as a junior officer under Brian Faulkner.
2.1.1 Role and remit of the JSC
Mr Gilliland was a junior officer and, as such, attended JSC meetings from August 1971. He recalled his role as being merely that of observer, as he needed to have a general knowledge of what was being discussed. He said that, in reality, key security matters were dealt with by the Prime Minister, the GOC and the Chief Constable of the RUC in closed meetings, held immediately prior to the full JSC meetings, and that the JSC seemed to be merely rubber-stamping decisions made elsewhere.
In relation to the role and remit of the JSC, Mr Gilliland said that they dealt with day-to-day issues concerning security, as opposed to overall strategic decisions. Whilst they would not deal with operational matters, he said that the committee would deal with issues such as at what juncture a march should be stopped, as this was not a matter of detail, but could represent the difference between a major and lesser riot.
He added that the Government Security Adviser, William Stout, exercised extreme influence over Brian Faulkner and that the UK Representative at the JSC meetings (a position held by Oliver Wright and, subsequently, Howard Smith) also had considerable influence in Northern Ireland, though his contacts with political parties, and was in constant contact with Westminster, acting almost as an ambassador in Belfast.
2.1.2 JSC meeting of 13th January 1972
The Tribunal is in possession of the minutes of this meeting, attended by Mr Gilliland, and asked him to shed additional light on some of the topics discussed. However, he was unable to provide any further detail on the issues tabled at the meeting, and could not recall, for example, any discussion about the need to take firmer measures with marchers or rioters.
2.1.3 MoD report of 26th January 1972
Mr Gilliland was shown the memo previously put to Dr Ramsay, in which Anthony Stephens, an MoD official, stated that “the choice of tactics for actually dealing with the march is essentially a matter for the JSC”. In accordance with Dr Ramsay’s recollection, Mr Gilliland felt this was not the role of the JSC but rather that of the security forces on the ground.
2.1.4 Civil rights marches as cover for the IRA
Mr Gilliland told the Tribunal that the risk that the IRA might use marches as cover to shoot the Security Forces had been raised on more than one occasion at the JSC. However, he could not recall whether this was before or after Bloody Sunday.
2.2 questions on behalf of the families
2.2.1 Role at Stormont at the time of Bloody Sunday
Although it was Mr Gilliland’s initial recollection that his official functions relating to press communications had ceased by the time of Bloody Sunday, Hugh Mooney, then specialist writer in the Information Research Department of the Foreign and Commonwealth Office, has told the Inquiry that it was Mr Gilliland who put out the official statement on behalf of Brian Faulkner following the events of the day. Mr Gilliland responded that he would often have helped out the duty press officers, despite no longer holding any official role within that department.
2.2.2 Reference to ‘a shooting war’
Counsel asked Mr Gilliland to explain the statement made in the JSC meeting held prior to Bloody Sunday, in which the possibility was raised that “the operation [on Bloody Sunday] might well develop into rioting and even a shooting war”. He responded that he thought this had been raised by the GOC, and said that nobody present had expressed any reservations about a shooting war developing in the presence of 12,000 civilians as nobody really envisaged that it would actually happen.
2.2.3 Information fed to the press by Stormont
Mr Gilliland said that, if the Government wanted the press to know a specific piece of information, somebody would ring up a selected journalist and give him the information ‘off the record’. He said that the decision to leak such information would have to be made by an extremely senior official, such as Brian Faulkner himself or the Secretary to the Cabinet.
2.3 questions on behalf of the soldiers
2.3.1 Role and responsibilities of the JSC
Mr Gilliland remained adamant that, from what he had seen as observer at the JSC meetings, any operational matters were put to the JSC as a ‘fait accompli’ as opposed to an issue upon which they could have a deciding influence.
3. robert carson’s evidence
Mr Carson was an RUC officer, based at Kesh, Enniskillen, on Bloody Sunday. Since Mr Carson had very little independent recollection of the day, his evidence centred primarily on his police report of 5th February 1972.
3.1 questions on behalf of the tribunal
3.1.1 Role on Bloody Sunday
Mr Carson took up his position at approximately 2:30 pm, at the junction of Bishop Street and Abercorn Road, about 50 yards to the rear of an army barrier (Barrier 20).
3.1.2 Two shots from the Bogside
Shortly after hearing two shots from the direction of the Bogside, Mr Carson saw two light-coloured Ford Cortina cars ramming the army barrier. Soldiers jumped over the barrier and took the occupants from the cars.
Mr Carson was told that there was strong evidence before the Tribunal to suggest that the two cars in question (one containing the wounded Gerald Donaghy) approached the army barrier at approximately 4:30 pm. By this stage, over 100 high velocity shots had been fired by the army in the Bogside. However, Mr Carson was clear that he had heard only two shots prior to the arrival of the two cars.
3.1.3 Cars ramming the army barrier
Although Mr Carson wrote in his original report that the two cars had rammed Barrier 20, it was now his recollection that they had braked as they approached it, and might have merely touched the barrier. Soldiers jumped over the barrier and took the occupants from the cars. Two soldiers then drove both cars up to his position and requested that a police constable accompany them to the hospital. Mr Carson was told by other officers that there was a body in both cars, although he did not see them himself.
He told the Inquiry that the cars only remained in the vicinity for a short time before being driven off. During that time, he did not see anybody putting anything into the car or taking anything out of it.
3.1.4 Fire towards Barrier 20
Mr Carson took cover behind a wall, as the soldiers manning the barricade came under fire. He saw a soldier adopt the firing position and return six single shots.
Mr Carson retreated into a nearby street, into which two soldiers came running. One of them said that he had been hit. Mr Carson and the other soldier examined the soldier in question and discovered that a bullet had struck his flak jacket.
3.2 questions on behalf of the families and wounded
3.2.1 Cars ramming the army barrier
Mr Carson was told that the Inquiry has received the statements from the soldiers manning Barrier 20, and that none of these record the barrier being rammed by any cars. He was also told that Raymond Rogan, the driver of one of the cars in question, denied ramming the barrier or seeing any other car ram it. Mr Carson remained sure in his recollection that the barrier had been hit or touched in some way.
3.2.2 Role on Bloody Sunday
Mr Carson travelled to and from Derry with a group of fellow officers from L Division (Fermanagh). Sergeant Keys was the officer in charge of his group, which comprised Constable Malone from Belleek, Constable Scott from Bellcoo, and Constables Gawley and McVeigh who were also from Kesh.
3.2.3 Police report of 5th February 1972
Mr Carson thought that he had been asked to write the report on 5th February, and believed that, since the report was addressed to the Superintendent of L Division, it had possibly been requested by him. Although he acknowledged that he would almost certainly have discussed the day’s events with his colleagues on their journey back to Kesh, Mr Carson said that he did not talk to them about what to put in his report.
Counsel for the families pointed out to Mr Carson that both he and Mr Gawley had written their reports on the same day, and that both reports contained striking similarities, not only with regard to the events related within them, but also with regard to the exact wording and phraseology used. Ms Doherty walked Mr Carson through both reports, highlighting a number of sentences, identical in both reports. She asked him to explain how he and Mr Gawley had written identical accounts concerning the ramming of the barricade, given the fact that both military and civilian witness evidence would suggest that this had not occurred.
Lord Saville intervened and asked Ms Doherty whether she was making the allegation that Mr Carson and Mr Gawley had made up the account of the ramming of the barricade. She confirmed that she was. Lord Saville said that Mr Carson had been provided with no notice of such an allegation and that, furthermore, the allegation was not substantiated by the material available.
Mr Carson strongly refuted the allegation that he and his colleague had written deliberately false accounts of the day’s events. Lord Saville told him, that as far as the Tribunal was concerned, he had done nothing but attempt to tell the truth, although it might prove that his memory was at fault in relation to some of the incidents recalled by him.
4. Sir kenneth bloomfield’s evidence
At the time of Bloody Sunday Sir Kenneth was Deputy Secretary to the Northern Ireland Cabinet, having also held the same position under the previous two Prime Ministers, O’Neill and Chichester-Clarke.
4.1 questions on behalf of the Tribunal
4.1.1 Meetings attended as Deputy Secretary
Sir Kenneth told the Inquiry that, in his position as Deputy Secretary, he attended various meetings at Stormont relating to security issues, including Cabinet meetings, sub-committee meetings and Joint Security Council meetings. At some meetings, he adopted the role of Secretariat to the committee, taking note of the proceedings and producing the formal minutes of the meeting; at joint committee meetings, with both ministers and civil servants, he would have been an active participant, but at others he would simply be ‘in attendance’, in order to gain an insight into what was going on in the area.
4.1.2 Control of security issues
Sir Kenneth said that the JSC was the only government committee set up specifically to deal with security issues. However, he said that since Prime Minister Chichester-Clarke’s decision in August 1969 to give the GOC the role of Director of Security Operations in Northern Ireland, involving both the army and the police, the ‘executive centre of gravity’ for dealing with the security situation had in fact switched from Belfast to London.
He said that Prime Minister Chichester-Clarke had been led to this decision due to the awkward constitutional situation of having the RUC responsible to the Northern Ireland Government, whereas the army was responsible to Westminster. Chichester-Clarke had decided that it would be better for the GOC to assume overall control of the security situation. Sir Kenneth added that Brian Faulkner and the Northern Ireland Government were in the difficult position of having perceived responsibility over the security situation, but having no actual power. Whist the citizens of Northern Ireland looked to Brian Faulkner for solutions to the security situation, in actual fact the means to deal with the situation were directed from Westminster.
He told the Inquiry that the Prime Minister’s main conversations about security would have been with Bill Stout, the Chief Constable of the RUC, the GOC and the UK Representative. These meetings would have driven policy relating to security matters.
4.1.3 Faulkner’s attitude towards the NICRA march
Sir Kenneth said that Brian Faulkner would have wanted the army and police to take as firm action as possible within the law in dealing with the planned NICRA march in Derry.
However, he said that it was clear at the time to both him and to Brian Faulkner that there were real grievances amongst the Catholic community and that both of them would have felt a sense of shame that more had not been done to address the imbalances. He said that both he and Faulkner were of the view that security measures alone would not work in bringing calm and stability to the region, and that there needed to be some kind of a political solution.
4.1.4 Role and remit of the JSC
Sir Kenneth told the Inquiry that the JSC was a forum for the exchange of views, rather than an executive decision-making body. If Brian Faulkner wanted to discuss a specific security issue or policy with the GOC, he would hold a private meeting, which Bill Stout, the Government Security Adviser would often attend.
He also said that decisions such as where to halt the march, whether to conduct a scoop-up arrest operation or which regiment to send in would have been operational decisions, outside the remit of the JSC.
4.1.5 Report by American Consul to US State Department
Sir Kenneth was shown a report made prior to Bloody Sunday by the American Consul in Belfast to the State Department in Washington detailing a conversation between the Consul, Sir Kenneth and Basil McIvor, the Minister of Community Relations. In the report, the Consul quotes Sir Kenneth as saying: “to keep Westminster at bay, the Government is hoping for a major military victory in the near future”.
He confirmed that the thinking of the Stormont Government at the time was that it would find itself in ‘serious trouble’ in relation to Westminster if the situation did not improve, but could not recall formally briefing the Consul. He presumed that the report had been made following conversations with the Consul in a social setting.
4.1.6 Special Branch security assessments
Although he would have received Special Branch assessments as part of the meeting materials at JSC meetings, he had no recollection of having been made aware that, prior to the Bloody Sunday march, there had been “reliable intelligence that the IRA intended to exploit the presence of crowds as cover for their gunmen”, as stated in the Special Branch assessment of 3rd February 1972.
4.1.7 Records made of significant meetings
Sir Kenneth told the Inquiry that at key meetings, he would make scribbled notes of what was said. He would then make a typed report for the Northern Ireland Cabinet, containing the broad brushstrokes of what was discussed. After the introduction of direct rule, he had gone back to his original scribbled notes and decided that he would write up a more detailed account of what had actually taken place, in order to provide a more accurate account for the Public Record.
4.2 questions on behalf of the families
4.2.1 Derry and the no-go areas
Sir Kenneth said that Derry represented a unique situation in Northern Ireland, due to its majority nationalist population and its status as the ‘Mecca’ of loyalism. He agreed that the subject of the no-go areas was frequently discussed by the Cabinet at Stormont, and was a major issue of concern for the unionist population.
He was shown army documents in which the army addresses the situation in Derry and proposes solutions to deal with the no-go areas, which explicitly raise the possibility of shooting unarmed civilians. Sir Kenneth responded that he did not recall being made aware of such thinking on behalf of the army.
He said that Brian Faulkner’s priority at the time of Bloody Sunday was to try to put a fractured polity back together, not to strategise about how to set the army more aggressively against the people of Derry. However, he agreed that Faulkner had to demonstrate to the unionist population that he was firm on issues concerning law and order, if he was to push through his agenda for change in Northern Ireland.
4.2.2 Responsibility for security
4.2.2.1 Role and influence of Westminster vis-à-vis the army
Sir Kenneth said that the political responsibilities for the army lay with the Westminster Government at the time of Bloody Sunday, although the Stormont Government had the ability in some situations to persuade Westminster to adopt certain measures.
He said that Westminster political control over the army would have been exercised through the MoD, the Secretary of State for Defence, and the Home Secretary. However, he was not aware to what extent these ministers would have been privy to army thinking regarding security matters.
4.2.2.2 Role and influence of Stormont vis-à-vis the army
It was put to Sir Kenneth that, if Stormont had been made aware of the significant threat of a ‘shooting war’ developing during the march on Bloody Sunday, it would have been their responsibility to take steps to protect those innocent persons participating in the march by, for example, preventing an incursion by Paratroopers into the Bogside. He responded that the Stormont Government had behaved honourably in terms of the information available to it, and that it had not failed in its responsibilities towards its citizens.
4.2.2.3 General Ford and General Tuzo
Sir Kenneth was asked to explain what he had meant by his description in his statement of General Ford as a ‘biffing-type’ soldier. He responded that Ford had the reputation of being a tough front-line commander. He said that, whilst the GOC was the Director of Security Operations, a large portion of his time was in fact spent dealing at the level of high policy relationships with the Stormont and Westminster Governments and that operational details were predominantly left to General Ford.
4.2.2.4 Relationship between the army and the police
Sir Kenneth said that he had never been made aware of the differences in opinion between General Ford and Chief Superintendent Lagan and Brigadier McClelland concerning the methods for dealing with the Bloody Sunday march.
4.2.3 The Dublin Government
Sir Kenneth was asked to comment on a portion of Dr Ramsay’s evidence to the Inquiry, in which he described the ‘cynical opportunism’ of the Irish Government in providing a haven for people who would otherwise have been interned in Northern Ireland. Sir Kenneth said that Mr Lynch, the then Taoiseach, appeared, on the contrary, to be a moderate constitutional nationalist politician, entirely opposed to the IRA. He did not agree that government agencies in the Republic of Ireland would have actively aided those escaping Internment in Northern Ireland, but said that it did appear that those involved in violent activities in Northern Ireland appeared to be immune from any legal processes once across the border.
4.2.4 JSC meeting of 27th January 1972
Sir Kenneth said that the Prime Minister might have held a private meeting with the GOC and the Chief Constable of the RUC prior to this JSC meeting, as was often the practice before JSC meetings.
In view of Sir Kenneth’s assertion that he had an intimate personal knowledge of the thinking and motivations of the Northern Ireland Prime Minister and Cabinet, he was asked whether the decision to conduct a scoop-up operation on Bloody Sunday, during which a ‘shooting war’ might develop, would constitute the type of serious security decision that Sir Kenneth described as being discussed at private meetings prior to the JSC meetings. He responded that he could not speculate on the Prime Minister’s knowledge.
Although he had not been present at the JSC meeting, it was Sir Kenneth’s supposition that the reference to a ‘shooting war’ would have been made by the GOC, as part of a summary provided by him. He could not comment as to why, from the evidence of the minutes, the use of such a phrase had not prompted questions or concern from participants in the meeting and said that, if he had been taking the minutes himself, he would have included any such questions raised in the minutes.
He could also not shed any further light on the distinct absence of any reference to an arrest operation planned for Bloody Sunday in the minutes of the meeting directly preceding the march.
4.2.5 JSC meeting of 27th January 1972
Sir Kenneth explained that minutes of the meetings would not necessarily reflect everything that took place at the meeting. He said, for example, if a row had erupted, it would simply have been written up as ‘after extensive discussion’, as the writers of the minutes would have been aware of the wide circulation of the documents.
Bearing that in mind, Sir Kenneth was asked to comment on a passage from the JSC meetings, stating: “the GOC also indicated that following a meeting with businessmen in Londonderry, certain measures were in mind with a view to putting down the troublesome hooligan element there. It was a very difficult position to solve within the law”. He agreed that he would have expected there to have been questions and discussions about the ‘certain measures’ referred to, even if these did not actually feature in the minutes.
Counsel went on to suggest that the answers to such questions would almost certainly have been given by the GOC from the report written for him by General Ford, following the latter’s meeting with the STA (the businessmen referred to in the minutes). If this was the case, Counsel continued, the conclusion suggested by General Ford to the GOC that “the minimum force necessary to achieve a restoration of law and order is to shoot selected ring-leaders amongst the DYH, after clear warnings have been issued”, would have had to have been discussed at the JSC meeting.
Sir Kenneth said that he had no recollection of the meeting or of hearing any such conclusions or proposals put forward by the GOC, and added that Brian Faulkner would have strongly opposed such suggestions. He strongly denied the suggestion by Counsel that he was being economical with his memory.
4.2.6 Downing Street meeting of 27th January 1972
Although Sir Kenneth had attended all other JSC meetings in January 1972, he did not attend the JSC meeting of 27th January, and he agreed that there would have been a good reason for his absence. Given the fact that Dr Ramsay and Brian Faulkner were the other two absentees at the JSC meeting, and both attended the meeting in London with Prime Minister Heath, Counsel suggested to Sir Kenneth that, in all probability, he almost certainly attended the London meeting as well. He responded that he had no recollection of attending the London meeting.
Despite having no recollection of the meeting, it was Sir Kenneth’s belief that its purpose would have been to discuss the situation concerning Internment, and not to discuss the Derry march and any new measures in mind to deal with it, as suggested by Counsel.
4.2.7 Faulkner’s reaction to the events of Bloody Sunday
Sir Kenneth told the Inquiry that Brian Faulkner had never expressed the view to him that the ‘air had been cleared’ by the events of Bloody Sunday, as he is recorded as stating in the minutes of a meeting at Downing Street on the Friday following Bloody Sunday.
4.3 questions on behalf of nicra
4.3.1 Perception of the Civil Rights movement
Sir Kenneth said that his view was that Civil Rights Association comprised people with legitimate grievances and that protests against some of the practices and occurrences in Derry were both inevitable and morally right. However, he believed that the movement was also infiltrated by republicans with an agenda other than civil rights.
4.3 questions on behalf of the soldiers
4.3.1 Perception of the Civil Rights movement
Sir Kenneth agreed with Counsel that the nature of the Civil Rights Association changed over time, and that by 1972 the influence of the moderate leadership had become somewhat diminished in the face of the more ‘subversive’ element within the movement.
4.3.2 Security role of the RUC, the army and the civil authorities
Having been shown the minutes of a meeting held on the 26th January between the GOC and the Chief Constable, amongst others, Sir Kenneth agreed that it appeared that the RUC and army had been working together, with nobody in the dominant role.
Sir Kenneth said that, in dealing with security matters, Brian Faulkner would have relied heavily upon the advice of the GOC and the Chief Constable, whereas, for more strategic political decisions, he would have relied on consultations with his Cabinet in coming to a decision, regardless of the express advice of the GOC or Chief Constable. Sir Kenneth also agreed that the army had initially been against the introduction of internment.
5. applications on behalf of the security service regarding ‘infliction’ and related information
The Tribunal heard three matters relating to procedures for dealing with the evidence of ‘Infliction’ and his handlers. Infliction is the codename of an agent who claims to have been told on more than one occasion by Martin McGuinness that he was the first person to fire a shot on Bloody Sunday.
The matters were as follows:
· Public Interest Immunity application in respect of certain documents or parts of documents contained in ‘Bundle A’
· Application for a time-delay procedure to be applied in respect of the three witnesses to give evidence about Infliction, i.e., Officers A and B and of David Shayler
· Anonymity, screening and venue applications in respect of former and serving Security Service personnel
The hearing constituted the ‘open’ part of the application, the Tribunal having already been presented with additional documents in a closed meeting the previous week. Lord Saville informed the parties, prior to hearing submissions, that he had already decided, on the basis of information presented in the ‘closed’ part of the application, not to call Infliction to give evidence before the Tribunal, as to do so would be in contravention of his Article 2 rights.
5.1 Submissions on behalf of the security services
Mr Sayles sought to clarify the Security Service’s position in relation to the Inquiry’s reliance on Infliction’s evidence, stating that it remained neutral as to whether the Inquiry should attach weight to the material.
5.1.1 PII application
Mr Sayles said that the Inquiry had been put in a position to properly evaluate the PII claim, having received all the underlying documents, and invited it to rule on both this and the previous PII applications made.
5.1.2 Time-delay procedure application
Counsel explained that Officer A, Officer B and David Shayler have knowledge of Infliction and / or his whereabouts. Mr Sayles submitted that the time-delay procedure was a practical and carefully modulated response to the risk that might arise to Infliction’s life, if any of the above-mentioned witnesses were to reveal, inadvertently or otherwise, any information relating to the agent.
He argued that the time-delay procedure would enable the Inquiry to strike a balance between the need for openness and the Article 2 rights of Infliction, and said that it would ensure that the release of oral evidence relating to the agent was dealt with in a similar way to the written materials. He added that a risk did exist regarding the disclosure of information, and that the time-delay procedure would enable the risk to be contained, at the lowest possible level of intrusion on the openness of the Inquiry.
The time-delay procedure proposed is as follows
· Interested parties give a list of prepared questions to Christopher Clarke, Counsel to the Inquiry.
· Only the Tribunal, the witness, Mr Clarke, Alan Roxburgh, John Tate, Counsel for the Security Service and relevant Security Service personnel are allowed to attend.
· Mr Clarke questions the witness, bearing in mind in mind the PII constraints.
· After hearing the evidence, the Security Service examines the transcript and removes any parts it deems compromising.
5.1.3 Anonymity, venue and screening applications
Counsel submitted that the relevant level of threat existed, and that the giving of evidence in London, screening and anonymity, were appropriate responses to the level of threat.
5.2 submissions on behalf of the families and wounded
5.2.1 Contextualising the current applications
By way of introduction, Mr Macdonald said that the current applications were the latest in a long line of applications by the British State and the Security Services, designed to compromise the openness and transparency of the Inquiry.
He said that the Tribunal’s international and objectively independent character had been undermined by a number of these decisions, made by the English Court of Appeal, and said that the cumulative effects of all these rulings should not be underestimated in terms of the erosion of public confidence they engendered. He added that these decisions also arguably infringed the Article 2 procedural rights of the families and wounded, in respect of their entitlement to an independent, accessible and effective investigation.
5.2.2 Partiality of the Security Services
Mr Macdonald highlighted the fact that the current applications were in two parts, the first part of which was secret. He said that the secret part, at which representatives for the families and wounded could not make any submissions would almost certainly determine the outcome of the entire application, as it had already determined the Tribunal’s decision not to call Infliction to give evidence.
He said that, whilst he did not doubt the good faith and impartiality of the Tribunal, the Tribunal would in fact be making decisions based on information and advice provided by the Security Service, which he did not hold to be independent or reliable for two key reasons: firstly, the Security Service is an agency of the State which is, he said, responsible for the deaths and injuries that occurred on Bloody Sunday; secondly, the Security Services were directly involved in the military and political apparatus of the Northern Ireland administration in 1972.
To support the second argument, Mr Macdonald listed a number of individuals, directly involved in both the Northern Ireland Administration in 1972 and in the Security Service:
· Howard Smith, the UK Representative at Stormont in 1972, was reportedly later appointed to be head of MI5 or MI6.
· Oliver Wright, Howard Smith’s predecessor, was allegedly later appointed to be head of MI6.
· Clifford Hill was seconded from the Information Research Department, described by Lord Carver as a department ‘set up to produce counter-propaganda to influence the media in the army’s favour’.
· Another person, whose name was unknown to Counsel, was seconded by MI6 to Howard Smith’s office (Counsel suggested this might be Hugh Mooney).
He also said that there were a number of military personnel and members of the Special Military Unit in the Director of Intelligence Office, and added that some of them appeared to have been members of MI5.
He continued his submission, saying that there was a division within the Army Headquarters Northern Ireland known as the Information Policy Unit, or ‘PsyOps’, which Colin Wallace, Senior Information Officer at Army Headquarters, said was “euphemistically described as ‘deception operations’ and ‘black propaganda’”. Colonel Maurice Tugwell, a former Para and an Intelligence Officer, was in charge of this unit.
Mr Macdonald submitted that this indicated that the Security Service and Secret Intelligence Services were deeply involved in the entire military and political apparatus in Northern Ireland at the time of Bloody Sunday and that, therefore, could not be seen as independent providers of advice and information.
5.2.3 Further preliminary submissions
Mr Macdonald also queried the short notice given of the application and why the application was being heard at all prior to the Tribunal’s ruling on the previous PII claim made. He expressed concern that the Tribunal might be being pressured into making a speedy decision by the Security Services.
5.2.4 PII application
Mr Macdonald said that it did not appear that the minister issuing the PII claim had applied the appropriate test laid down by the Attorney General in July 1997, stating that Public Interest Immunity would not be asserted by the Government unless the minister in question believed that the disclosure of a document or piece of information would cause real harm to the public interest.
Mr Mansfield submitted that the time-delay procedure was intrinsically bound to the question of Public Interest Immunity. He said that, were the Tribunal to engage in any assessment of the reliability or veracity of the Infliction materials and to hear the evidence of agents in relation to this matter, they would be then faced with the difficulty of not being able to explain their assessment, due to the fact that answers upon which they based their assessment might in turn be covered by Public Interest Immunity. He argued that this would fundamentally infringe upon the Tribunal’s ability to search for the truth and to make that truth public at the end of the day and that, therefore, PII should not apply.
5.2.5 Time delay procedure application
5.2.5.1 Risk to Infliction
Mr Macdonald submitted that the Security Service had not established that there is a particular risk to Infliction, necessitating this procedure and added that, even if such a risk did exist, the procedure would still not be warranted given the significance of the issue and the nature of the material.
Lord Gifford added that there was no reason given by the Security Services to support their assertion that there was a significant risk that Officer A, Officer B or David Shayler might inadvertently or maliciously provide information that would reveal the identity or whereabouts of Infliction. He submitted that the three aforementioned persons were in exactly the same position as other witnesses called before the Tribunal who had been directed not to reveal the names of soldiers, and that the Tribunal should deal with them in exactly the same manner.
Counsel submitted that the materials relating to Infliction should be disregarded, due to the fact that they provide little detail and are not corroborated by any other evidence.
5.2.5.2 Value of Infliction materials
He said that no weight could be attached to the materials, given the fact that the information was indirect and could not be tested. He also drew attention to David Shayler’s statement in which he refers to Infliction as being described as a ‘bull shitter’ by other agents in the Security Services.
Lastly, he submitted that, in relation to the Channel 4 interviews conducted by Lena Ferguson and Alex Thompson, the Tribunal had expressly stated that the evidence of the anonymous soldiers was of little or no value if they could not be questioned directly by the Tribunal. Although Mr Macdonald disputed that statement in relation to the soldiers, he submitted that, if that was the view taken by the Tribunal in that case, they could not reasonably take any other view in relation to Infliction, who had not co-operated with the Inquiry in any way, and whose purported information conflicted with the substantial body of information before the Inquiry.
Mr Macdonald urged the Inquiry to either disregard the information attributed to Infliction or to treat it as having such minimal value that it would not be appropriate or necessary to adopt the time-delay procedure in dealing with it, as suggested by the Security Service.
5.2.6 Anonymity, screening and venue applications
Mr Macdonald submitted that the application should be refused for the same reasons put forward in the applications previously made on behalf of the soldiers and the RUC officers.
Ms McHugh added that, 30 years ago, agents of the state told the world that the Bloody Sunday dead were gunmen and bombers and that those to blame for the deaths were the organisers of the civil rights march. She said that, in her clients’ eyes, the Infliction materials were yet another attempt by an agent of the State to shift the blame for the day’s events, and added that they had no confidence in any witness who is unseen, unheard and unchallenged.
5.2.7 Tribunal’s decision not to call ‘Infliction’ to give evidence
Lord Gifford submitted that, if Infliction was not to testify before the Tribunal, the Tribunal could not and should not base any conclusions on his reported allegation made to Officer A. He said that not only was such an allegation unsubstantiated by any other evidence before the Tribunal, but also it could not in fact be tested without Infliction testifying to the Inquiry. He continued to say that, in a criminal trial or civil proceeding, the effect of a decision not to call a witness would be that the court could not use the witness’s material in any way.
5.3
submissions on behalf of martin mcGUINNESS
Mr Cush said that one of the reasons behind Martin McGuinness’s decision to give evidence before the Tribunal was to rebut the allegations made against him by Infliction, and to instruct those appearing for him to cross-examine Infliction so that he could defend his position. He submitted that the Tribunal’s decision not to call Infliction had in fact rendered his client ‘deaf, dumb and blind’ in the face of a very serious allegation made against him, and that it would be unfair to pursue the allegation any further within the limitations suggested.
He argued that it would be impossible to pursue an effective questioning of Officer A, Officer B or David Shayler, as the Security Services would not allow the key questions relating to the allegation, such as when it was made, where and in what circumstances, to be revealed.
Mr Cush submitted that the Infliction materials were of so little weight that they should be disregarded.
5.4 submissions on behalf of the soldiers
5.4.1 PII application
5.4.1.1 The applicable legal test
Mr Lloyd-Jones said that, in civil proceedings in relation to PII claims, the court is required to perform a balancing exercise between harm to the interests of justice which would be brought about by the non-disclosure of a document, versus the harm to the public interest which would be caused by disclosure. This test, known as the Wiley test, is the one adopted by the Minister in the current PII application.
He said that, in criminal proceedings, the determinative question was whether the documents might be of assistance to the Defence, and argued that this was the appropriate test to adopt, in view of the grave allegations made against the soldiers and the issue of criminal responsibility.
However, he continued that, regardless of the test applied, all other principles might have to yield in the face of the Article 2 rights of Infliction. This, he said, would mean that the Tribunal would face an irreconcilable conflict between the right to life and the interests of justice, which would be resolved in criminal proceedings by abandoning the prosecution, or by the judge directing a verdict of not guilty on the grounds that a fair trial was not possible, an option not open to the Tribunal.
Mr Lloyd-Jones submitted that if the Tribunal were to uphold a claim of PII, it would result in unfairness to interested parties, and that, therefore, the Tribunal should only take this course of action if unavoidable.
5.4.1.2 Importance of Infliction materials
He said that there was clear importance to be attached to the Infliction materials, and took issue with the Security Service’s present stance to remain neutral with regard to the materials. He also took issue with the stance taken by the representatives of the families and wounded, that the materials should be disregarded as worthless, and said that the Tribunal could not simply dismiss the evidence without investigating it fully, by devising appropriate methods with which to test it.
He said that the importance of the Infliction materials was underscored by the lack of information available to the Inquiry as to the role of the IRA on Bloody Sunday and by the fact that it is the only evidence to suggest that Martin McGuinness fired the first shot. He submitted that the Tribunal’s duty to carry out a full and complete inquiry into the events of Bloody Sunday compelled them to address and assess the Infliction materials, lest the Inquiry run the risk of being one-sided, thereby throwing into doubt the status of its ultimate findings.
5.4.1.3 Risk to life versus risk to operational efficiency of Security Services
Mr Lloyd-Jones also added that, in setting up the Inquiry, the Government had waived legal professional privilege. He said that the Government must have appreciated that an inquiry into the events of Bloody Sunday would necessarily require a public investigation of the operations of the Security Service and military intelligence in Derry at the time. He concluded by saying that the PII application should not be upheld solely on the basis that it might entail a risk to the operational efficiency of the Security Services, as to do so would be directly against the spirit of the Inquiry.
5.4.2 Time delay procedure application
Mr Lloyd-Jones took issue with the proposed time-delay procedure on the basis that the interested parties had an important role to perform in questioning witnesses before the Inquiry and that it would not be possible for them to map out in advance the precise course of their witness examinations. He submitted that, as a compromise, Counsel for the interested parties should be permitted to question the three witnesses in a private hearing.
5.4.3 Anonymity, venue and screening applications
Mr Lloyd-Jones submitted that, at this stage, the legal principles were well established in relation to anonymity, venue and screening, and that the Tribunal should grant such applications, if to refuse to do so would engender the serious possibility that an individual might be attacked or killed.
5.5 Submissions on behalf of six former oira members
Lord Saville sought to make it clear that he had also received, and taken into account, a statement received on behalf of six former Official IRA members in relation to these applications.
5.6 Judgment
Judgment was reserved.
SUMMARY OF
PROCEEDINGS
Monday 27th May: Paragraph 5
Tuesday 28th May: Paragraphs 1and 2
Wednesday 29th May: Paragraphs 3 and 4
For Peace Justice & Human Rights
