1 Tuesday, 21st November 2000
2 (9.39 am)
3 MR HARVEY: I was just yesterday completing
4 the presentation in relation to Sector 4 and during the
5 course of that I indicated that there were six persons
6 who were injured. Five of those I had already named as
7 Joseph Friel, Michael Quinn, Daniel Gillespie, Joseph
8 Mahon and Patrick O'Donnell. The sixth person was
9 a possible injured referred to by both Mr Quinn and
10 Mr Conway in their evidence when they indicated it was
11 a person whom they believed had a gunshot wound to the
12 thigh. That indicates the sixth and missing person.
13 If I now move on to the final Sector, that is
14 Sector 5. Within Sector 5 one has two persons who are
15 killed. One has also two persons who are injured. Of
16 those one knows that Mr Barney McGuigan was injured
17 somewhere just to the south of block 2 and block 1 and
18 the forecourt behind the Rossville Flats. Mr Patrick
19 Doherty was killed in a position between the exit
20 between blocks 2 and 3 and an alleyway at
21 Joseph Place. Between both Mr McGuigan and Mr Doherty
22 there was also Mr Patrick Campbell who appears to have
23 been injured somewhere in the region of the threepenny
24 bits, the elevated grass area in the forecourt and then
25 Mr Daniel McGowan who went to his assistance.
1 The difficulty for the military witnesses in
2 dealing with Sector 5 is that the only soldier who
3 claims to have fired in Sector 5 from the Parachute
4 Regiment is Soldier F. Soldier F's trajectory is seen
5 on the trajectory photographs, it is photograph number
6 8. Could that be put on the screen?
7 Photograph number 8 shows the trajectory as
8 going from the southwestern corner of block 1 of
9 Glenfada Park North and the trajectory is across
10 Rossville Street and traversing the area and almost
11 parallel to block 2 of the Rossville Flats and appears
12 to come to a conclusion somewhere in and about the
13 region in fact where Mr Patrick Doherty's body is
14 recovered.
15 It would appear that after the shootings in
16 Glenfada, Soldier F had made his way to that corner and
17 there is also evidence that Soldier G had moved across
18 from the western side of Glenfada in that direction
19 because Soldier F indicates that he and G were really
20 meant to give cover to each other and one would be
21 directly behind whenever any action was taking place.
22 The evidence from Soldier F is that he fired
23 two shots. The difficulty again created by that is
24 that it does not account for four persons, two dead and
25 two injured. In relation to that, all one can
1 therefore conclude is, unless these persons were shot
2 from the walls or some other direction, then the
3 account that has been provided by the soldiers is
4 simply a mendacious one, mendacious because there is no
5 accounting for the death of the people in this Sector
6 as there is no accounting for the death of the people
7 in Sector 2.
8 If one looks at photograph number 442,
9 photograph number 442 indicates a huddle of people just
10 around from the end of block 1, in other words, it is
11 the southwestern corner of block 1. The body that is
12 prone on the ground and receiving attention at this
13 stage is that of Hugh Gilmore.
14 Within this photograph we can see Daniel
15 McGowan, who is soon to be shot. He is bent over the
16 body of Hugh Gilmore, he is wearing a white shirt and
17 one can see the shock of hair.
18 Also in this photograph, if one goes to the
19 third bollard from the left and moves in to the first
20 person with his back to the photographer with both his
21 hands lying to his side in a normal position, that is
22 Barney McGuigan.
23 We can also see in this sequence Mr Hugh
24 Kelly and also Mr Bernard Gallagher and Brian McCool,
25 who is beside him. Very shortly after this set of
1 photographs was taken, Mr Patrick Doherty had emerged
2 from the gap between blocks 2 and 3, which again is
3 perhaps best illustrated on the trajectory photograph
4 in relation to Soldier F; that is photograph number 8.
5 If one could go to that.
6 LORD SAVILLE: Just help me, you say very
7 shortly after this set of photographs was taken,
8 Mr Patrick Doherty had emerged, how are you able to say
9 that, Mr Harvey.
10 MR HARVEY: What I respectfully submit, the
11 photographs that have been taken of Mr Doherty show
12 that Mr Doherty is crawling along this wall.
13 LORD SAVILLE: Could you just for the
14 purposes of the transcript further define this wall,
15 although I know exactly what you mean?
16 MR HARVEY: Yes, this is a retaining wall
17 which is to the southwest of block 3 and it runs
18 parallel --
19 MR CLARKE: I think my learned friend means
20 southeast.
21 LORD SAVILLE: Southeast of block 2, more or
22 less south of block 3.
23 MR HARVEY: Southwest of block No. 3, but to
24 the southeast of block number 2. It is a retaining
25 wall that runs all of the way parallel to block 3 and
1 it gradually falls in height as one moves into the car
2 park, which can be seen on the right-hand side of the
3 photograph and that is the car park which lies behind
4 Joseph Place.
5 If one looks at this photograph also, just as
6 one moves to the west from the wall, one can see in
7 fact there is a small alleyway which runs in that
8 direction behind the houses of Joseph Place. The land
9 of the car park is slightly above the level of the
10 alleyway and there is again a wall which creates an
11 alleyway between the rear of the houses in Joseph Place
12 and the barrier between those houses and the car park.
13 It is obvious, one can see if one looks at the
14 photograph that were taken by Mr Gilles Peress,
15 Mr Peress had actually come up Chamberlain Street, he
16 had gone into the car park where he had taken some
17 photographs of Mr Duddy, he had then made his way over
18 to the gap between blocks 2 and 3 and at that stage was
19 able to take photographs of Mr Doherty still living,
20 crawling in the direction of the actual wall, that is
21 travelling southwest, almost due south, along the wall.
22 The photographs then show that he has turned
23 to the right, heading in the direction of that alleyway
24 and he can be clearly seen in photograph 719, after he
25 has been killed. If one could put up photograph 719.
1 Just facing the photographer is Glenfada Park South.
2 To the left as one looks at the photograph is
3 Joseph Place and just off the photograph to the left,
4 but almost parallel to the prone body of Mr Doherty and
5 Paddy Walsh, is the actual alleyway.
6 What one can say is that the persons who are
7 gathered at the gable are aware when that photograph
8 was taken of the death of Mr Gilmore. There is also
9 the Susan North tape, and the Susan North tape is taken
10 some time after the Peress photographs, because it
11 would appear, again, that Fulvio Grimaldi and Susan
12 North are following after Mr Peress, Mr Peress --
13 LORD SAVILLE: I follow all that, at least it
14 may be I am not following all that. The original
15 question I put to you: we have photograph 442, and you
16 were saying -- I am not for one moment suggesting you
17 are wrong, I am not quite sure why you are saying it --
18 but shortly afterwards you get the shooting down to the
19 end of block 3.
20 MR HARVEY: Because undoubtedly Mr Doherty is
21 shot before Mr McGuigan, it is the arrival of Susan
22 North who has a tape, and during the course of that
23 tape one hears the screams of Geraldine Richmond and
24 they gradually increase in intensity, and that seems to
25 represent initially, not merely what is happening in
1 relation to Mr Gilmore, but the recognition that
2 Mr McGuigan has been killed. The timescale in which
3 these events happened must also be relatively quickly,
4 because one also knows that Soldier F, who is the only
5 real candidate, self-nominated, for the death of
6 Mr Doherty, has quickly come to the corner of Glenfada
7 --
8 LORD SAVILLE: Making sure I get it right --
9 MR HARVEY: There is nothing which can
10 conclusively establish that, but there are a number of
11 factors --
12 LORD SAVILLE: If I may summarise it back to
13 you, to see if I understand it. You have 442, which in
14 fact shows Mr McGuigan with his back to the camera.
15 MR HARVEY: Yes.
16 LORD SAVILLE: You are suggesting that he
17 must have been shot after Mr Doherty.
18 MR HARVEY: That is correct.
19 LORD SAVILLE: It therefore follows that this
20 photograph was taken before Mr Doherty was shot.
21 MR HARVEY: Before Mr Doherty was shot.
22 LORD SAVILLE: That is about it.
23 MR HARVEY: Yes.
24 If one then goes to the photographs that were
25 taken by Mr Peress, the photograph 711. Photograph 711
1 shows Patrick Doherty to the left of the photograph.
2 In the centre of the photograph is Mr Kevin McDaid, who
3 is witness AM67. He is Michael McDaid's brother.
4 Photograph 712 again shows Mr Patrick Doherty. What is
5 quite clear from these photographs is that Mr Doherty
6 is using, firstly he is actually on his haunches. He
7 then goes to ground. At photograph 713 his hands again
8 are clearly visible in front of him and he is crawling
9 and it is also patent that he has and is carrying
10 nothing in his hands.
11 Eventually then one comes to photograph 714,
12 which shows that he has been shot at this stage and the
13 location of that again is best shown in photograph
14 717. It also shows that Paddy Walsh has gone out to
15 render him some degree of comfort. But one can see on
16 this photograph that the alleyway towards which he was
17 making was in fact just to the left of the two support
18 concrete beams supporting an overhead walkway.
19 MR TOOHEY: Mr Harvey, what distance is there
20 between what is shown on photograph 713 and what is
21 shown on 714?
22 MR HARVEY: That perhaps again is best
23 illustrated if one goes to the trajectory photograph,
24 photograph 8. Again one can see the wall. The
25 distance in fact I believe is something of a matter of
1 maybe five to 10 yards, or 10 yards. He has really
2 obviously cut across the corner. Also the real
3 difficulty here again is that there are many things in
4 this particular death which mirror that of Kevin
5 McElhinney. Again he was shot in the back; he was shot
6 while crawling; he was shot while crawling to safety
7 and he was shot tragically just quite literally a very
8 short distance before achieving that safety.
9 LORD SAVILLE: 713 is taken from what I would
10 describe as the car park area of the Rossville Flats,
11 it is before he has gone through the alleyway between
12 blocks 2 and 3, is that not right?
13 MR HARVEY: Yes, the distances with the
14 photographs in fact are deceptive, but it is a very
15 short distance, I cannot really provide an accurate
16 account of just how far that is, but certainly it does
17 indicate a person who is crawling and crawling away
18 from what he believes to be the area of danger.
19 Unknown to Mr Doherty, Soldier F appears.
20 While Mr Doherty is on the ground there is also a cry
21 for help. That cry for help evokes a normal human
22 response in Mr McGuigan. Mr McGuigan goes in fact to
23 render him some comfort and he is shot.
24 Also in and around this time, but before
25 Mr McGuigan is shot, Patrick Campbell, again it is not
1 particularly possible to indicate where he was shot,
2 but he was shot in the back. He was shot in the
3 buttock somewhere, it would appear, just in this
4 particular area or just slightly south of that.
5 Mr McGowan, who had been helping Mr Hugh Gilmore, saw
6 him staggering almost as if he was intoxicated, went
7 out to help him, brought him down to the alleyway in
8 which Mr Doherty was seeking refuge, left him in the
9 alleyway after he came out of the alleyway. He made
10 his way towards a set of steps which give access up on
11 to Fahan Street and then he was shot in the leg.
12 Again there is no shooting in this Sector or
13 from Sector 2 or Sector 3 which accounts for the death
14 of Mr McGuigan, the injury to Mr Daniel McGowan or the
15 injury to Mr Patrick Campbell.
16 We know at this stage that Soldier G was in
17 and about this area. Simon Winchester had made his way
18 up through the rubble --
19 LORD SAVILLE: I am sorry to keep
20 interrupting: Soldier G was in what area?
21 MR HARVEY: Was in the area of Glenfada at
22 the corner, because he had gone over, it would appear,
23 to join F, and eventually both F and G make their way
24 back to an army personnel carrier on Rossville Street.
25 But Simon Winchester had made his way up through the
1 rubble barricade; he had eventually come out on to the
2 same steps at which Mr McGowan was shot, had gone up on
3 to the wall where he had met an individual whom he did
4 not know, but may previously have met at Magilligan
5 Strand the previous Saturday, and he believes he saw
6 two soldiers in and about the junction of
7 Glenfada Park, that is Glenfada Park North, and the
8 junction being the junction with the southeastern
9 entrance into Glenfada Park North and that both those
10 soldiers in fact appeared to be moving their rifles in
11 a sweep towards Derry Corner and back towards Rossville
12 Flats and he also believes that he was shot at at this
13 time.
14 In this particular Sector one now has what in
15 effect are four unaccounted injuries: two fatalities
16 and two serious injuries.
17 Soldier F indicated that in fact he fired two
18 shots, and two shots only, at a person marked on the
19 trajectory map and marked on the trajectory map as
20 a person who was aiming a pistol. That does not
21 account for a person such as Mr Doherty being shot in
22 the back. It seems more likely that he was shot in
23 this Sector rather than a shot coming through from the
24 area between blocks 2 and block 3. He was quite close
25 to the alley and all he had to do was to change
1 direction in order to come into the alley and present
2 a target to persons firing from the entrance to
3 Glenfada, that is the southeastern entrance.
4 It does not account either for the injury and
5 the death of Mr McGuigan. The common denominator of
6 the three injuries to Mr Campbell, Mr McGuigan and
7 Mr Doherty is that they were all injuries sustained
8 from behind. Again, therefore, when one looks at the
9 totality of the picture now of injured and dead, what
10 one can say is that if one examines simply the accounts
11 that have been provided by the soldiers on the ground
12 that day, they do not tally with the injuries and the
13 deaths of those who actually suffered that day.
14 (10.00 am)
15 The only time that they try to come for
16 accounting for deaths is really at the rubble barricade
17 --
18 LORD SAVILLE: Again, sorry, I should not
19 keep interrupting you, Mr McGuigan you told us a few
20 minutes ago was, I think you suggested, going towards
21 Mr Doherty.
22 MR HARVEY: Yes.
23 LORD SAVILLE: He is shot from behind.
24 MR HARVEY: From behind.
25 LORD SAVILLE: Which would possibly indicate
1 a contraindication to a suggestion he may have been
2 shot from the walls.
3 MR HARVEY: Again that is a question which
4 has to be decided, but that is, I believe,
5 a contraindication that he was shot from the walls.
6 The difficulty with the walls is that that is a matter
7 which will have to be dealt with by way of evidence and
8 it is very difficult to disentangle that from the
9 evidence of the soldiers on the ground. When one has
10 soldiers on the ground deliberately firing at
11 individuals and admittedly firing, then when one sees
12 that there is also other possibilities, I think perhaps
13 it is -- one's training as a lawyer is always to
14 eliminate the obvious before one goes to the less
15 obvious, but here one definitely has shooting in these
16 areas, persons being shot from behind and similarly
17 also the injury to Mr Doherty. It is unlikely that was
18 caused from the walls.
19 When one looks at the totality of the
20 picture, the picture really is that only at the rubble
21 barricade do the army seek to provide explanations for
22 some of the bodies that were there found and at the
23 time some strength was given to the army case in
24 relation to the forensic evidence which was available.
25 However, the evidence which has now been provided to
1 this Tribunal by Messrs O'Callaghan and Shepherd and
2 Dr Lloyd I respectfully submit really consigns that
3 evidence to the lumber room of history. It adds
4 nothing to this Inquiry in terms of supporting the case
5 one way or the other.
6 One is then driven back to the realities,
7 which I respectfully submit are readily spelt out in
8 the photographs and in the other evidence.
9 After this particular Sector finishes
10 Soldiers F and G, according to their evidence, returned
11 to an army personnel carrier. They are alerted, it
12 would appear by a radio operator, according to them,
13 that there is a gunman at a window in block 1 of the
14 Rossville Flats. Again according to their evidence
15 Soldier F fires three shots at the window at a person
16 whom he believes to be a gunman. In that house and in
17 that area where shots are discharged are Fulvio
18 Grimaldi and Susan North. Again their tape that has
19 been played graphically illustrates what precisely
20 happened.
21 The photograph is 543. If one looks at the
22 photograph, the photograph shows that there were six
23 bullets which entered the window. The window on the
24 left-hand side -- I am afraid the hard copy is better
25 than this, nonetheless the photograph does show six
1 entry wounds of bullets. It also shows that the
2 bullets are neatly grouped. If those windows
3 represented the target area of a body, they would all
4 represent fatal wounds. What it really does is
5 indicate that when these soldiers are required, they
6 have the facility and capacity to aim directly at the
7 target they intend to shoot, aiming at a curtained
8 window at an individual who is slightly moving in order
9 to take photographs indicates, I respectfully submit,
10 that it is highly unlikely that when these soldiers
11 aimed their rifles at specific individuals, that they
12 missed and killed others, that the deceased on Bloody
13 Sunday are not the tragic consequences of the poor
14 marksmanship of members of the Parachute Regiment. The
15 27 persons who were killed and injured were
16 deliberately selected targets and deliberately selected
17 by individuals who not only knew how to use weapons,
18 but actually had the personal capacity to use them, and
19 use them accurately.
20 What I respectfully also submit that it does,
21 it gives the lie to the suggestion by Soldier H that he
22 could have conceivably discharged 19 shots at a window
23 which was no more than 30 to 40 yards from him and miss
24 on every occasion but one.
25 Also at this time the commercial footage
1 which is taken shows that persons are congregated
2 around the body of Mr Barney McGuigan, and they are
3 stood over his body, obviously still perplexed by what
4 is happening, and the commercial footage dramatically
5 demonstrates that the discharge of high velocity shots
6 causes further panic to persons who must have already
7 been traumatically distressed. They move from the
8 position of Mr McGuigan's body on to the Rossville
9 area, seeking shelter behind the ambulance and also by
10 simply crawling on the ground.
11 When again one returns to the case as is
12 presented, the case is that it is highly unlikely that
13 the army would have set out on such a day with a
14 deliberate policy of inflicting death or injury by the
15 use of firearms because of the presence of commercial
16 television and the presence of professional reporters.
17 What one can say certainly up and until this day, 30th
18 January 1972, in spite of the violence that occurred on
19 a regular basis in and around the junction of William
20 Street/Rossville Street, in spite of the fact that the
21 soldiers may well on occasions have been petrol bombed
22 and fired on, there was still a fundamental framework
23 of innocence within which that took place, a framework
24 of innocence where no one would have anticipated that
25 reporters would have been assaulted, that photographers
1 such as Gilles Peress and Fulvio Grimaldi would have
2 been shot at, that Mr Geoffrey Morris, the photographer
3 from the Daily Mail, would have been held, forcibly
4 restrained from taking photographs and when he sought
5 shelter, hit by a rubber bullet.
6 There was a framework where no one could have
7 conceivably imagined that a Knight of Malta whose sole
8 objective was to bring aid and comfort to those who
9 were injured, would not only be assaulted, left dumped
10 on the ground, but subsequently a person who had been
11 attending to a dying person would also be arrested and
12 framed for stone throwing.
13 There was a framework of innocence in which
14 no one would have anticipated that Catholic priests
15 would have been arrested and framed for stone throwing;
16 a framework of innocence in which no one would have
17 anticipated or expected that a Catholic priest would
18 have been denied the opportunity of giving the last
19 rites to a member of his church.
20 There is no framework of innocence that could
21 have been imagined that could have been defiled in such
22 a way in the presence of so many cameras. The
23 disregard that this Regiment had for basically the
24 civilised ordinary decencies, even in extreme times, is
25 still one which is remarkable down to this day.
1 The only factor that was different in Derry
2 on 30th January 1972 was the introduction of the
3 Parachute Regiment. So as far as the persons and the
4 families that I represent and all of my colleagues
5 represent, the Prime Minister, on 29th January 1998, in
6 his statement to Parliament establishing this Tribunal,
7 set out:
8 "Bloody Sunday was a tragic day for all
9 concerned. We must all wish that it never happened.
10 Our concern now is simply to establish the truth and to
11 close this painful chapter once and for all.
12 "Like the Honorable Member for Foyle, members
13 of the families of the victims have conducted a long
14 campaign to that end. I have heard some of their
15 remarks over recent years and have been struck by their
16 dignity. Most do not want recrimination, they do not
17 want revenge, but they do want the truth. I believe
18 that it is in everyone's interest that the truth be
19 established and told. That is also the way forward to
20 the necessary reconciliation that will be such an
21 important part of building a secure future for the
22 people of Northern Ireland."
23 In relation to the families that I represent,
24 those words undoubtedly reflect their feelings and
25 their hopes.
1 The truth can provide stability in any
2 society. At times it may be hard and at times it may
3 be harsh, but the truth always provides the basis upon
4 which that which is bad can be remedied and that which
5 is good can be made better. Denial of the truth always
6 makes bad worse and always denies the opportunity of
7 good to improve.
8 So far as all of the families that
9 I represent, they also see that there must be a further
10 shore on the far side of revenge. They simply seek the
11 justice that has been denied them, the justice that was
12 confounded in the Widgery Tribunal.
13 In seeking to influence the final and draft
14 speeches of counsel in the Widgery Tribunal,
15 General Ford in a document which is G128A.85.1.001 --
16 it is not necessary to bring it up -- really wanted to
17 point out and highlight the difference between himself
18 and Chief Superintendent Lagan. It states at paragraph
19 3(b):
20 "He (the CLF) had been in no doubt once the
21 director of OPS committee had rejected Lagan's advice
22 that the law must be enforced. For this reason he did
23 not like the phrase 'the soldiers' dilemma', whether
24 a commander does his duty or takes the easy way out and
25 allows the law to be defied."
1 Used in counsel's first and final draft
2 closings and address.
3 The soldiers' dilemma was the soldiers'
4 dilemma created by General Ford. That dilemma ended up
5 in the shooting of 27 unarmed and innocent
6 individuals. It is a shame that General Ford did not
7 have the capacity for reflection that
8 Chief Superintendent Lagan had; it is a shame that
9 General Ford did not have the knowledge of the local
10 people of Derry that Chief Superintendent Lagan had.
11 It is easy for a soldier to make a decision; the price
12 has been paid by the people of this community.
13 Before I finish I think it is only right that
14 I acknowledge the enormous amount of work that has been
15 done by this Tribunal. It is also right I acknowledge
16 the burden that has fallen upon a small legal team
17 under the control of Christopher Clarke. It is also
18 right I acknowledge the tremendous industry which has
19 been combined, I believe with an intellectual actuity
20 and also with patience and unfailing courtesy both to
21 myself and all of my colleagues in this room, whomever
22 they represent.
23 The way forward is the one, the impartial way
24 that has been chosen by this Tribunal. Much has been
25 done, much remains to be done. We look forward to the
1 future with anticipation.
2 LORD SAVILLE: Thank you very much
3 Mr Harvey.
4 (10.15 am)
5 Opening Submission by MR FINNEGAN
6 MR FINNEGAN: Sir, I think it has been agreed
7 I go next, with the Tribunal's consent. As the Inquiry
8 knows, I appear for four of the parties involved. The
9 family of Jackie Duddy, the family of Michael Kelly,
10 Patsy McDaid and the family of Patrick Campbell. Of
11 those four, sir, three of them are unable to give
12 evidence to you personally and three of them were
13 unable to give evidence to Widgery personally. Jackie
14 Duddy and Michael Kelly because they were killed on the
15 day, Patrick Campbell because he was hospitalised and
16 still ill, and the shooting he received. Patrick
17 McDaid did give evidence and intends again to give
18 evidence.
19 One of the problems of that, sir, is that
20 unlike a trial or an action in court, the Inquiry will
21 be unable to hear from three of them, from them
22 directly, and to assess the possibility that there is
23 even the slightest truth in the slanders and the
24 calumny and the insinuations that have been cast
25 against them as justification for their shooting over
1 the years.
2 That being so, sir, it must fall to me to
3 give some attempt or to make some attempt to put
4 a human face to these people who were present on the
5 day, those who did not survive and those who did,
6 because the antecedents of any person is a relevant
7 matter, particularly when one is considering grave and
8 injurious allegations against them as to what they
9 might have been doing on the day to justify their
10 shooting or their associations.
11 The slanders and calumnies of course range
12 from different levels to a general allegation that
13 people going on the march, watching the march, near the
14 march, were at best unemployed hooligans, at worst
15 lethal gunmen and possibly cover for lethal gunmen,
16 petrol bombers or nail bombers. Those allegations have
17 been sustained over the years.
18 It is sometimes said, sir, that too often
19 images of violent death, of which there are too many in
20 this Inquiry, and one sustains and feels for the
21 families every time, for instance, the photograph of
22 the body of Jackie Duddy being taken away by
23 Father Daly, and the brave people who carried him in
24 some vain attempt, at a hope of resuscitation or
25 revival. But too often images of violent death are not
1 accompanied by any acknowledgment of the human pain and
2 suffering left behind, and it will be apparent even at
3 this early stage of this Inquiry of the extent of that
4 pain and suffering, pain and suffering exacerbated and
5 exaggerated by the treatment the families have received
6 at the hands of the authorities, and in particular the
7 continuing allegations of members of the British army
8 who perpetrated the murders and the shootings of the
9 innocent people on that day.
10 It will fall to the Inquiry to consider
11 whether there is any vestige of truth in the claims of,
12 for instance, Soldier V and Inquiry Soldier 2003, who
13 both are prime suspects for the shooting of Jackie
14 Duddy. Both of them have made allegations in the past
15 and there has not, to my knowledge, been any
16 retraction.
17 Although Mr Harvey has rightly pointed out to
18 the Inquiry that none of the shootings claimed by the
19 army cover the incidents that are actually on record of
20 the people that were shot by them, it still falls to
21 the Inquiry to deal or to consider whether there could
22 be any justification for those slanders to persist, or
23 whether they should be nailed once and for all and
24 moving to Michael Kelly, when Soldier F eventually
25 accepted at the heels of the hunt, the bullet only
1 having been discovered as coming from his rifle two
2 days before his final statement, when he eventually
3 acknowledged that he shot Michael Kelly, whether the
4 justification that he then has sustained since then has
5 been a proper one or one that could be sustained on any
6 analysis.
7 But to do that, sir, when you come to hear
8 all the evidence, both the civilian evidence, the press
9 evidence, the forensic evidence and finally the
10 military evidence, throughout that body, while one is
11 dealing with the cold logic of military messages,
12 political meetings, forensic evidence, logistics and so
13 forth, each one of these deceased and injured was some
14 mother's son or daughter and until one gets a picture
15 of them, it may be difficult for the Inquiry to rule
16 out or to sustain the allegations made against them.
17 Add to that, sir, that occasionally in
18 a morass of conflicting evidence and conflicting
19 contentions and allegations, once in a while a small
20 straw in the wind comes before an Inquiry or a court of
21 any kind. The straw may only be that straw, it may be
22 inconsequential and based on fairly flimsy parameters,
23 but occasionally it is as if the fog lifts and
24 encapsulated in perhaps a very brief time, one sees,
25 yes, that just sums this up, does it not.
1 When Mr Clarke, as recently as the start of
2 last week, brought before the Inquiry and the public
3 the tape transcript on the very day, whatever the
4 provenance of that -- you might remember, sir,
5 Mr Clarke describing the accents in the overall tape as
6 certainly something one might associate with the normal
7 accent of army officers. Even though it is only
8 a brief week ago, briefly, sir, I ask the Inquiry to
9 look at that again, which is merely a page, which is at
10 bundle X2.25.6, if that could be brought up very
11 briefly, sir. At the bottom of that page, if we could
12 go to it:
13 "Male voice: Look, there has obviously been
14 a hell of a sort out ... the whole things in chaos,
15 yes, obviously I think it has gone badly wrong in the
16 Rossville. The doctor has just been up the hospital
17 and they are pulling stiffs out there as fast as they
18 can get them out.
19 "Male voice: There is nothing wrong with
20 that.
21 "Male voice: Well, there is, because they
22 are the wrong people ..."
23 I will not proceed, sir, other than to remind
24 the Tribunal of a further extract at the middle of the
25 next page:
1 "Reference to General Ford.
2 "Male voice: Yeah.
3 "Second male voice: He was lapping it up."
4 When I say, sir, that occasionally the fog
5 lifts and one sees something like that, we do not know
6 the provenance of this, it has not been established, it
7 still remains to be established.
8 If one would put in a few sentences,
9 certainly for the few people I appear for, to say they
10 were the wrong people that were shot would be the under
11 statement of the century. It is also an inference to
12 take from that, if at the end of the day the Inquiry
13 feels that was informed knowledge of what was going on
14 from genuine sources, that one interpretation is that
15 there were people to be shot that day before the
16 operation took place, that is one possible
17 interpretation, but a ready acknowledgment from perhaps
18 one of the more humane voices we have heard from the
19 military, that the wrong people were shot.
20 Sadly, from the military sources we have
21 heard from from that day, there has never been any
22 confirmation, whatever the apology of John Major as
23 Prime Minister, or other extensions of the innocence of
24 the accused from that source, sir, from not only the
25 people, the soldiers on the ground but their superior
1 officers, there has never been an acknowledgment of the
2 wrong and the murders that were perpetrated on that
3 day.
4 If I move to Jackie Duddy as the first of the
5 four cases I am involved in, and show again the
6 photograph that must be the best known in the entire
7 world of the events of that day, of Jackie Duddy being
8 carried away by Father Daly and the brave people that
9 were round him. Every time this case comes up it is
10 a daily reminder to the Duddy family of what happened
11 to their son.
12 You may recall, sir, in the documentation,
13 that when Father Daly saw young Jackie Duddy a second
14 or two before he was killed, he took a note that in
15 fact he spotted him as being one of the young boxers
16 who were members of the Long Tower Boxing Club and for
17 that reason recognised him, if not by name, but as one
18 of the young hopefuls.
19 The photograph that perhaps the family prefer
20 to remember him by, if it might be shown briefly, is at
21 MF113, which shows him in his hobby with his boxing
22 gloves, and shows again that although he was 17 and
23 some months at the time of his death, this was taken
24 perhaps some stage earlier, he had a child-like
25 appearance and that is how the family would prefer to
1 remember him until this final torture has been put to
2 an end as to the suggestion that there was any
3 justification for killing that young man.
4 If one tries to put a human face to him, one
5 goes to the immediate background: at the time he was
6 working as a weaver in a shirt factory on a full week
7 and in the preceding weeks there was a tradition, as
8 you eventually will hear, of serving in the merchant
9 navy, and partly because of the frequency of security
10 checks as he did his road running round the streets of
11 Derry, and the frequency as to when his training stints
12 were stopped, P checked, name checked out, which was
13 a common occurrence for all young men in that city in
14 those days, he decided a fresh start might be
15 desirable.
16 So following in the footsteps of other
17 members preceding him in the family, he applied to the
18 merchant navy. If we could just see MF97, which is
19 a document that puts a number of features to the
20 profile of this young man, you will see that because he
21 in fact had just gone past the age of 17 and a quarter,
22 he had exceeded the upper limit, so his application was
23 really stalled at that stage. The date is relevant,
24 20th January, just ten days before he was shot down.
25 However, you will hear he intended to keep
1 following it up and the careers officer had in fact
2 intimated that a further appointment would have been
3 there on Friday, 4th February, to see if something
4 could be done to further his anxieties to carve out a
5 life for himself in employment, while his prowess as
6 a young boxer could be assessed generally; he sparred,
7 it may not mean much to the Inquiry, with another boxer
8 called Nash, who eventually graced the boxing rings for
9 British title fights and the world stage. That was the
10 sort of potential that he and Nash were associated
11 with. Nash fortunately went on to achieve considerable
12 stardom and fame, but this young man never had that
13 chance.
14 What adds particular poignancy to this
15 envelope that this letter was in, which has been
16 preserved by the family as one of the things they have
17 held on to when they grieved every time they saw their
18 photographs of their brother and their son, in the
19 family address at 21 Central Drive at MF98, which is
20 a photograph of the envelope, if I read it out, the
21 bottom half is not of great significance:
22 "Patrick [a brother] I took a loan of 4 bob
23 off you this morning and I shall give it back to you
24 tonight. Jackie."
25 Which puts the picture of innocence, honesty,
1 just decency, that was Jackie Duddy.
2 The suggestion has been made from
3 politicians, it has to be said, primarily, that perhaps
4 anybody associated with that march, given its
5 illegality, was entitled to all they got. It is
6 interesting to see how, on one analysis, Jackie Duddy
7 ended up where he was at the time he was shot. His
8 sister Kay, in the course of a book by Mr Rolston,
9 a Professor Rolston, covered this topic. If the
10 Inquiry could see briefly at MF140, this is from a book
11 "Unfinished Business" by Professor Rolston --
12 MR CLARKE: The problem may be that
13 (inaudible) is at 98.
14 MR FINNEGAN: MF98.
15 MR CLARKE: That is the last one I have got
16 in the hard copy bundle we were handed. I do not think
17 any other will have been scanned.
18 MR FINNEGAN: Is there such a document with
19 the technicians, MF140? I think possibly we have it,
20 sir. The penultimate paragraph, highlight the
21 paragraph just below halfway there, in whatever way the
22 experts feel that will be clarified for everybody:
23 I think we can cope with it if we just stop. I think
24 you can see, sir, where the paragraph begins:
25 "The reason Jackie sneaked out to go on the
1 march was that so many were going. It was a big day
2 out. He said 'I think I will go down and hear my girl
3 Bernie making a mouth of herself'" Bernadette Devlin
4 being the only girl on the platform, "it was just crack
5 to him."
6 "Crack", sir, is an Irish expression for
7 a bit of good humour and honest fun, not anything else.
8 LORD SAVILLE: I have learnt that over the
9 last two years.
10 MR FINNEGAN: That is, on one view, what his
11 sister remembers of the reason that Jackie sneaked out
12 to go on the march that day. His mother was dead some
13 two years, his father had been on night duty in
14 Altnagelvin the previous night and had gone to bed when
15 he came in that morning. That was the background as to
16 where that arrived.
17 Sir, that is the human face of Jackie Duddy.
18 You will eventually hear the suggestions made, we
19 anticipate, as to the person that Soldier V shot. I do
20 not anticipate what the Inquiry will make of the
21 contradictions there. We know that although it was in
22 the general area that Soldier V claimed he shot
23 somebody, the clothing is incorrect, but he does say
24 that a priest was nearby. You will eventually hear
25 that of course he changed his version from the person
1 he shot having nothing in his hand to having something
2 in his hand in a later statement.
3 On Day 16 of Mr Clarke's opening, dealing
4 with Inquiry Soldier 2003, Mr Clarke was at the
5 disadvantage of not having had the transcript, because
6 I think they did not exist at that stage, of what
7 Soldier 2003 was saying. He was saying many things,
8 but he was saying he was on duty that day with the
9 Parachute Regiment in Derry and he was saying that he
10 believed he had shot Jack Duddy. He maintained, in the
11 transcript that was not available to Mr Clarke for
12 a considerable period, that Jackie Duddy had been
13 involved in some criminal activity. That diminished
14 increasingly over the hours that he was being
15 interviewed. If we could briefly look at the
16 transcript that was not available to Mr Clarke, which
17 is at bundle X1.44.41:
18 "PM [who was the person interviewed at the
19 top of that page]: Are you sure the blast is true?
20 Soldier: Yep, and as I said, it is not
21 about self-preservation this time.
22 PM: As soon as you had got over the effects
23 of the blast, then -- what was that, seconds?
24 Soldier: Yep, matter of seconds. Shake your
25 head and go back.
1 PM: What did you do then?
2 Soldier: Search for a target.
3 Question: By searching for a target you mean
4 what?
5 Answer: Looking for to take out someone.
6 Question: Looking to shoot someone?
7 Answer: Yes.
8 Question: Irrespective of what they were
9 doing?
10 Answer: Yep.
11 Question: What was this young person doing?
12 Answer: Running.
13 Question: Fast?
14 Answer: Yep.
15 Question: In front of you?
16 Answer: Yep.
17 Question: Away from you?
18 Answer: Yeah.
19 Question: No threat to you whatsoever?
20 Answer: No.
21 Question: And what did you do?"
22 Next page, please:
23 "Answer: I shot him, one round, and
24 everything else is true, the way the body turned and
25 fell.
1 Question: I have got to say to you, soldier,
2 that you murdered this person, did you not?
3 Answer: [Soldier 2003] It is hard for me to
4 come to say that, but if I am talking honestly, yes."
5 Slightly further down there is a reference to
6 the priest and some doubt about that.
7 If Soldier 2003, whatever about his earlier
8 credibility about any threat that was emanating from
9 the crowd in the Rossville Flats, at the end of the day
10 it seems he acknowledges there was no justification for
11 his claim that he shot Jackie Duddy, but if it was
12 Soldier V you again, sir, may feel compelled at the
13 evidence of the civilians around him and Father Daly in
14 particular, that again this was nothing short of
15 murder.
16 It is interesting, sir, that in the pain and
17 grief of these events the families have stretched out
18 to each other at times and helped each other in their
19 grief. Kay Duddy, in another article, which I do not
20 need to show you at this stage, sir, found strangely
21 enough some solace and relief in the fact that her own
22 mother had died by this time, because she observed, as
23 indeed did many people in the area, that the mother of
24 Michael Kelly and the mother of Jim Wray were
25 frequently to be found by their families in the middle
1 of certainly what Michael Kelly's mother was having,
2 a nervous breakdown in the cemetery at the graves of
3 their sons.
4 When they went missing the families went
5 nearly regularly, knowing where they would be. Kay
6 Duddy found solace in the fact that her mother did not
7 have to sustain that sort of grief, sustained and
8 exemplified by Mrs Kelly, the mother of Michael Kelly,
9 bringing blankets to the graveyard, not for herself but
10 to put over the grave of Michael, in her mind, in some
11 attempt to keep him warm.
12 Looking at Michael Kelly, sir, we have seen
13 the photographs that again Mr Harvey showed you
14 yesterday, behind the rubble barricade, with his back,
15 with the hairstyle and clothing that was reminiscent of
16 the late 60s and early 70s for those of us old enough
17 to remember them.
18 Was he some unemployed hooligan or somebody
19 who was a petrol bomber or nail bomber? Let us have
20 a look at his life. He was in regular employment at
21 the time he was shot, sir. If we could have ED65.1.
22 This was a letter from Michael Kelly's father on 24th
23 February, where even at that stage it was clear that
24 some character assassination as well as physical
25 assassination was to be perpetrated on the victims of
1 the army that day:
2 "Dear Mr Kelly, further to your Inquiry
3 regarding your late son, Michael, during his employment
4 with this company, I always found Michael to be
5 punctual, with a good attendance record, intelligent,
6 very willing to learn and at all times an amiable
7 disposition.
8 "He had a keen sense of responsibility and
9 all jobs entrusted to him were carried out swiftly and
10 well.
11 "He was very well liked by the staff of all
12 age groups and was well-known for always being
13 cheerful. He had completed almost two out of the
14 five-year apprenticeship and in my opinion his skill
15 was the equivalent of someone who had completed three
16 years.
17 "He had attended a training course at the
18 Belfast Technical College and his tutors gave him
19 a good report. He would have had a secure future as a
20 sewing machine mechanic, but I feel that on completion
21 of his apprenticeship he would have continued his
22 studies into engineering and I would have encouraged
23 this."
24 Struck down at the threshold of a career.
25 That course in Belfast involved him in going from
1 Monday to Friday full-time and returning and working on
2 a Saturday for the day on Goulding Limited. That was
3 six days a week. In Belfast he lodged, and you, sir,
4 and your colleagues, will also be coming to realise how
5 divided the society was in Northern Ireland, and is in
6 Northern Ireland. He lodged with a landlady of the
7 opposite persuasion and both got on like a house on
8 fire and the Kelly family were more than pleased when
9 they telephoned him if they heard a bomb had gone off
10 in Belfast that the landlady was able to reassure them
11 of his safety, as he was indeed.
12 That is the activities from Monday to Friday
13 and then on Saturday working. He had interests, but
14 interests of a normal young man, a youth club and
15 pigeons, he was particularly interested in pigeons and
16 on the Saturday he would even bring some of them to
17 work and leave them while he completed his hours on the
18 Saturday.
19 You heard from Mr Harvey yesterday that the
20 police investigation into Jackie Duddy concluded that
21 it was murder, but because they could not trace
22 a bullet they were unable to bring charges against the
23 soldier in their opinion who had committed this
24 murder.
25 It would not be right to leave that question
1 mark over Michael Kelly, sir: there was no prosecution
2 directed in respect of him, not because the police came
3 to the view that they thought he was a nail bomber or
4 a gunman. To the contrary, they did not accept that.
5 Although they had the bullet by 19th February, or it
6 came to their attention, certainly by the end of
7 Widgery, that it was Soldier F's bullet that killed
8 them. They then, unlike Duddy, had the rifle and the
9 soldier who had shot Kelly at the barricade. Again
10 there was no prosecution, partly, it has to be said,
11 sir, strangely it was a view that was taken by one of
12 the officers concerned in preparing the file:
13 "I would also wish to point out that it
14 would appear to be patently unreasonable to proceed
15 against two soldiers ..."
16 That is the two soldiers whose rifles and
17 bullets were traced:
18 "... merely because in those instances there
19 is evidence that the bullet causing the death was fired
20 from a rifle in possession of the soldier while 20
21 other soldiers fired something in the region of 126
22 rounds of ammunition, but who cannot be identified as
23 causing the death or wounding of any particular
24 person."
25 I pause briefly to say that that would be,
1 putting it neutrally, a bizarre conclusion. If one had
2 a video of six bank robbers and only four of them could
3 be identified, would it be patently unreasonable to
4 prosecute the two who could be identified because four
5 others could not?
6 Again, sir, I urge you --
7 LORD SAVILLE: For the purposes of the
8 transcript, Mr Finnegan, do you have the reference for
9 that document?
10 MR FINNEGAN: It is Saville 1894, pages 3 to
11 4, starting at 1893.
12 If I might again, although the photographs
13 were put, it was of Michael Kelly first of all with his
14 back to the photographer and again lying on the ground
15 and being carried away. If perhaps the photograph
16 MF125 could be displayed. That, I understand it, is
17 his place of work, that was the demeanour that would
18 not have been apparent because his photographs we have
19 seen already seem exclusively to have been on the
20 ground or on his back.
21 A statement that was not available to the
22 Widgery or anybody else for many years comes from John
23 Glenn, who I say immediately, was a far-out relation
24 and a friend and neighbour of the Kelly family, but if
25 that could be shown, sir, to complete the profile of
1 Michael Kelly. It is at AG44.5, if one could move to
2 the second half to paragraph 35:
3 "Michael Kelly was a very light-hearted
4 person. He was always joking and smiling. He was
5 a bit of a rascal in an amusing way; there was never
6 any malice about him. The whole family was decent and
7 good natured. They were not involved in crime or
8 anything like that. Any involvement with guns and nail
9 bombs would have been totally alien to Michael's
10 nature. I was incensed when I first heard that it was
11 thought he may have been involved in violence. There
12 was a lot of anger in the local community about that."
13 We will hear eventually from Mr Glenn, who
14 had been abroad for many years, but still remembers.
15 That, sir, is the profile of the young man who
16 Soldier F claims had a fizzing nail bomb. Again that
17 remains a slur and an allegation against this young man
18 and both he and Jackie Duddy on any analysis would be a
19 young man and a son that any family in the world would
20 have been proud of.
21 Patsy McDaid fortunately survived the day,
22 sir. We have seen photographs of him already, but
23 perhaps if briefly we could see P796: that is him lying
24 on the ground. The photographs are consistent, sir,
25 with a man trying to escape the imminent danger and
1 threats of shooting.
2 What led him into that situation? Well, he
3 went on the march like many other people. Mr Walsh,
4 the gentleman who shows immense courage throughout the
5 course of his involvement of the day, who is again
6 attempting -- although he cannot apparently remember
7 doing this -- attempting to aid Patsy McDaid, who was
8 shot, the photograph will still be graphic to you, sir,
9 indeed anybody yesterday who was watching when Patsy
10 McDaid had his shirt rolled up, clearly indicating an
11 injury in the centre of his back or thereabouts. He
12 was attempting to make his way to safety to the exit
13 between blocks 2 and 3.
14 What led him there? Apart from being on the
15 march, when he was making his way shortly before he was
16 shot himself, he came across Peggy Deery and was one of
17 the people who carried him to 33 Chamberlain Street.
18 He went into Chamberlain Street and because it was
19 obvious from the extent of her wounds that further aid
20 was required, he went out and searched round the
21 general area for further first aid help to help him
22 assist Peggy Deery. So it was his own humanity and
23 bravery that led him to linger in the area that
24 unfortunately led to him being shot.
25 You will eventually hear that he witnessed
1 Jackie Duddy shot, but Patsy McDaid was at the entrance
2 to the courtyard, so he then ran to the eastern corner
3 of the east car park and then decided to crawl on his
4 hands and knees to the gap between blocks 2 and 3.
5 Three or four people ran before him. Hoping he would
6 be as successful as them, he made the same run for the
7 cover of the low wall.
8 Fortunately, by a split second, he dipped and
9 at that moment, sir, he sustained the injury that
10 allowed him to remain alive, but if he had been a split
11 second earlier, in all probability, he would have been
12 killed.
13 He was working for the Derry City Commission
14 at the time, a 24 year old plumber, full-time
15 employment. As with Duddy and Kelly, no criminal
16 convictions or juvenile cautions of any sort. That is
17 the person who alone no soldier claims or accepts that
18 he shot him, but the allegation is that anybody who was
19 shot was involved in activity that justified them being
20 shot, and in particular that there were gunmen
21 operating from the very area that the people we still
22 see in that photograph were going towards.
23 If there was anything that puts the lie, it
24 is the fact or the possibility of people running
25 towards gunmen and we say, sir, when you hear the
1 evidence in its entirety, even apart from any absence
2 of any evidence to suggest any illegal activity other
3 than attendance on the march, that the only other
4 indication for Patsy McDaid was bravery and humanity.
5 He was eventually tended to, sir, in hospital.
6 Moving to Patrick Campbell. He, although he
7 survived Bloody Sunday, never recovered from it. He
8 was 53 when he was wounded. He was a married man with
9 nine children and had been fortunate to find work as
10 a casual docker, although "casual" is misleading,
11 because although on a casual basis, the work that he
12 was regarded fit and able for was such that it was
13 almost an exception if ever a day that there was not
14 work for him.
15 He was probably shot in Joseph Place through
16 the gap between blocks 1 and 2, but that is not
17 a certainty by any means. The possibility of
18 a shooting from Glenfada or indeed the city walls
19 remains alive. He was shot in the buttock, again from
20 behind. Again, sir, no criminal record; full-time
21 employment.
22 When I say this, sir, of course I wish to
23 make it completely clear that unemployment in the City
24 of Derry was no badge of dishonour. More it was
25 a result of a sustained campaign of discrimination and
1 lack of investment even from those members of the
2 ruling party who represented the city, but it certainly
3 puts the lie to the group libel that anybody that was
4 shot fell into that category of physical warmonger or
5 anything of that nature. As I say, he was aged 53.
6 There is a photograph available, because he died some
7 time ago, sir. As I say. He never recovered. At
8 photograph 747 he was in his hospital bed at that
9 stage, sir.
10 He remained and was unable to give evidence,
11 as I have already said, and unfortunately will be
12 unable to give evidence on his own account, but it
13 would be the bravest of counsel who would seek to
14 justify in any way the shooting of him on any of the
15 evidence or documentation available to any of the
16 parties.
17 You may graphically remember, and briefly,
18 although Mr Clarke did cover this in his opening, I ask
19 you, sir, to look at ED27.3, where he was interviewed
20 when he recovered somewhat. The first paragraph
21 indicates that the first attempt at interview was not
22 possible. Eventually he was interviewed at a later
23 stage:
24 "He elected to make and sign a written
25 statement which involves him in the civil rights march
1 which relates his action during the period in
2 question. It will be noted from the medical report
3 that he sustained serious injuries, likely to be in
4 hospital for some time. He appears to be a jovial type
5 not withstanding his injuries and he was most
6 co-operative. Detective Sergeant Cudmore."
7 Mr Clarke's comments spoke volumes. It may
8 be for the Inquiry's own view that this was certainly
9 somebody that nobody could justify on any showing.
10 He was interviewed, and a very brief showing
11 of video 25, sir, 01.07.34.
12 (Video played)
13 That is sufficient, sir. Although it is
14 brief, he was able to give an account of the innocence
15 of the situation he found himself in. He attempted to
16 return to work and was immediately laid off on medical
17 grounds and withdrew within himself inside the house,
18 effectively was never the same man again.
19 His wife died some time later and again the
20 family lived with his shooting and demise to this very
21 day.
22 So when and if, sir, this Inquiry hears any
23 suggestion that any of these people were involved in
24 any activity that it could have justified their
25 shooting, you will, I know, sir, bear in mind the
1 background, the outlook, the clear records, their
2 demeanour, their behaviour. These people were worthy
3 of better and did not get it.
4 LORD SAVILLE: Thank you very much.
5 Opening Submissions by MR TREACY
6 MR TREACY: I appear with Fiona Doherty. We
7 appear on behalf of three people, two of whom were
8 injured in Glenfada Park and one of whom was killed,
9 that was Joe Mahon, Joe Friel, those were two of the
10 people injured in Glenfada Park, and William McKinney
11 who was killed in Glenfada Park.
12 We also appear on behalf of Gerard Donaghy
13 and Gerry McKinney, both of whom were killed in Abbey
14 Park.
15 Sir, before I begin my address to the
16 Tribunal, could I first of all express on our side our
17 indebtedness to Mr Harvey for his very comprehensive
18 review of much of the evidence in this case, as
19 a result of which I can confine many of the comments
20 which would otherwise have had to have been made.
21 Could I also associate myself with the
22 general comments that he made at the conclusion of his
23 address to this Tribunal in respect of the work of this
24 Tribunal and the presentation which has been made by
25 Mr Clarke.
1 Sir, the structure that I intend to adopt for
2 the purpose of my address is to deal with the cases of
3 Mr Friel and Mr Donaghy first of all. Our general
4 submission, sir, is that after people had been killed
5 or wounded, a process of vilification of those who had
6 been unjustifiably shot sprung into action, and in
7 respect of all the dead and all the wounded it was
8 falsely maintained then and apparently continues to be
9 falsely maintained that they were all gunmen or
10 bombers.
11 However, in the cases of Joe Friel and Gerard
12 Donaghy, the process of vilification was taken a stage
13 further. In the case of Friel it was additionally
14 falsely asserted that he had made an admission to
15 handling a firearm on Bloody Sunday to Soldier 104 and
16 in the case of Gerard Donaghy it was, in our
17 submission, falsely asserted that he was in possession
18 of nail bombs at the time he was shot.
19 Just as the general claim that all the
20 deceased and wounded were gunmen or bombers has been,
21 and we submit will be demonstrated to be a complete
22 falsehood, so also will be the falsification of the
23 evidence against Mr Friel and Mr Donaghy, and it will
24 be exposed as nothing other than a farrago of lies and
25 deceit.
1 What I therefore propose to do, sir, because
2 there are those two discrete issues which arise outside
3 the Sectors as it were, I propose to deal first of all
4 with the case of Mr Friel and then with the case of
5 Mr Donaghy.
6 As far as Mr Friel's background is concerned,
7 sir, perhaps if we could display first of all
8 photograph 752. That is a photograph of Joe Friel
9 after he had been shot and was sitting up in hospital.
10 At that stage he was then 20 years of age; he was then
11 a single man from the Rossville Street flats complex
12 and he had left St. Columbs College in Derry in
13 September 1969, when he was 17 years of age.
14 He had five O levels and soon after he left
15 school he took up a job with the Inland Revenue as
16 a tax officer. He had no criminal record and no
17 political affiliations. He was shot in Glenfada and
18 taken to Altnagelvin Hospital by car, but en route to
19 the hospital he was transferred to the rear of an army
20 Saracen. He was eventually admitted to hospital at
21 approximately quarter past five that evening, where he
22 was then operated upon.
23 Several years after Bloody Sunday, Joe Friel
24 married, on 16th February 1974, and they have three
25 children: Joseph, who is now aged 25 and he works as
1 a machinist in a local factory; Orla, who is aged 20,
2 and Erin, who is now aged 11.
3 Mr Friel, sir, eventually retired from his
4 job in the Inland Revenue in 1992, after 33 and a half
5 years service, and he retired from his job due to ill
6 health resulting from the events of Bloody Sunday. He
7 was suffering from stress and panic attacks. He
8 received, for a significant number of years, medical
9 attention, and was diagnosed as suffering from Post
10 Traumatic Stress Disorder, brought on by not talking
11 about what had happened to him, and he still suffers to
12 this day recurring nightmares when he pictures himself
13 in the position of Jim Wray as he was being shot as he
14 lay helpless on the ground.
15 He, in common with a number of others, has
16 attended a local support group for the families of the
17 deceased and wounded and he has said in a statement to
18 the Tribunal that as a result of the events that day he
19 has physical and mental scars which will stay with him
20 for the rest of his life.
21 It is interesting to observe, sir, that his
22 grandfather was a British soldier who was wounded in
23 the First World War and that his own father had also
24 been in the British army. That is the background, sir,
25 to Joe Friel.
1 If I could then turn to the alleged admission
2 which was made to Joe Friel by Soldier 104. The
3 specific accusation is made by 104 that Joe Friel
4 admitted to him that he had been carrying a firearm at
5 the time he was shot on Bloody Sunday. Soldier 104 was
6 a member of the 1st Battalion of the Royal Anglian
7 Regiment and at the relevant time was on duty with
8 other members of his Platoon at a road block at
9 Barrack Street in Derry.
10 Mr Friel was shot in Glenfada Park and he was
11 taken to the Murray house at 23 Lisfannon Park, where
12 he was treated by Eileen Lafferty of the Knights of
13 Malta. He was then placed in a car and driven towards
14 Altnagelvin Hospital by James Deehan, accompanied by
15 Manus Morrison and Eugene O'Donnell.
16 The car and that carrying Gerard Donaghy,
17 which was just behind, was stopped at the checkpoint in
18 Barrack Street, at which point Mr Deehan and
19 Mr O'Donnell were arrested and Mr Morrison ran away.
20 At this point, sir, it is worth noting the
21 attitude of the soldiers who were on duty at the
22 checkpoint at Barrack Street to the cars containing the
23 seriously injured Donaghy and Friel. In his unsigned
24 statement to the Inquiry Soldier 135 made the following
25 comment, and if B1835.007 could be called up. It is
1 paragraph 15. This is what Soldier 135 said:
2 "I went over to the front passenger door.
3 There were two men in the front. The men in the front
4 were probably in their twenties. I told the driver to
5 turn the engine off, to leave the engine in gear, to
6 put the handbrake on and both men were to fucking get
7 out of the car. I think that he said something like he
8 had a sick in the car. I put my baton gun on the side
9 of the car resting on the window frame and
10 I immediately fired and blew them out of there. I do
11 not remember a gap between me telling them to get out
12 and firing the baton round. The baton round hit them
13 and knocked them both out of the driver's door and on
14 to the ground ..."
15 Soldier 104 drove the car onwards a short
16 distance with Mr Friel still inside. He was then
17 joined by a police officer and they drove to the
18 Regimental Aid Post, from where Mr Friel was ultimately
19 brought to hospital.
20 The substance of 104's allegation is
21 contained in his Royal Military Police statement, his
22 statement to the Treasury Solicitor and in his evidence
23 to the Widgery Tribunal, and he has also made
24 a statement to this Inquiry.
25 In his Royal Military Police statement, it is
1 B1 1680, it is the sentence which begins "when the
2 youth":
3 "When the youth, who appeared to be quite
4 lucid, asked me to take him to hospital, I asked him
5 what he had been up to. He said that he had been shot,
6 and I told him I could see that and that he should not
7 have been playing with guns. I asked how he had been
8 shot and he said that he had a gun and was carrying it
9 when he walked round a corner and bumped into some
10 soldiers, one of whom shot him. He did not say where
11 the incident had occurred, nor did he say what sort of
12 gun he had been carrying, but he did say that he had
13 never done that sort of thing before and that he would
14 not do it again. I asked him what had happened to his
15 gun and he said that he did not know."
16 In his second statement Soldier 104 recounts
17 the alleged admission in broadly the same terms. He
18 then says that it was too dangerous for him to drive
19 the injured man to Company headquarters as ordered
20 without a police escort and to this end he asked an RUC
21 man who was nearby to go with him.
22 Mr Friel was actually taken to the Regimental
23 Aid Post beside the Craigavon Bridge where he was then
24 treated and transferred by army vehicle to the
25 hospital. Giving evidence at the Widgery Tribunal,
1 Soldier 104 recounted the incident in some more
2 detail. He told how he had been ordered to get into
3 the silver coloured Cortina, that is the vehicle in
4 which Joe Friel was then lying, in order to stop it
5 rolling downhill. He drove it to the top of the hill,
6 about 40 yards behind the barricade and was then told
7 to take the car and the injured man in the back seat to
8 Company headquarters.
9 He again states that it was unsafe to do so
10 and that he had asked a nearby policeman to accompany
11 him. In his direct evidence, 104 stated for the first
12 time that the man in the back of the car had been
13 sitting up talking to him and he again recounts the
14 alleged admission in terms similar to those in his
15 previous statements.
16 During 104's direct evidence at Widgery,
17 there was a significant exchange which took place and
18 which is to be found at bundle B1695, if that could be
19 put on the screen, please. At the bottom, the last
20 paragraph, which begins "What did he say".
21 This is of course referring to Friel:
22 "Question: What did he say?
23 Answer: I asked him what he was doing and he
24 said he had walked round a corner and he got shot.
25 I said to him 'You should not play with guns'. He said
1 'I would not do it again'. Then he asked me my name
2 and I would not tell him and he asked me to take him to
3 hospital."
4 Go to the next page:
5 "Question: Is that all that was said?
6 Answer: I think so, sir.
7 Question: Now, did he say what he had with
8 him when he was found?
9 Answer: Yes, he said he had a gun."
10 It is clear that officer, by the use of
11 inappropriate questioning, that 104 was prompted to
12 give this extremely important evidence which formed the
13 basis of the allegation against Mr Friel.
14 It is also interesting to note that when the
15 allegation was put to Mr Friel under cross-examination
16 at the Widgery Tribunal, it was with the suggestion
17 that the alleged admission had taken place in an army
18 vehicle in which Mr Friel was being taken from the
19 Regimental Aid Post to the hospital. 104's allegation
20 was that the admission had been made when he first got
21 into the car with Friel and even before they had left
22 Barrack Street.
23 In his unsigned statement to this Inquiry,
24 Soldier 104 now states that he saw three people in the
25 back of the car carrying Joe Friel and he says -- I do
1 not think this needs to be called up, I can read
2 a short paragraph, in this statement he says:
3 "Two of these people" that is referring to
4 the three people he says were in the back of the
5 car "two of these people were dead and one was alive
6 although he was injured. My 1972 statement states it
7 was two bodies in two cars, one dead in one car and an
8 injured man in the other. However, my memory now is of
9 three bodies in one car. It is more likely that my
10 1972 evidence is correct on this point."
11 However, as Soldier 104 himself points out,
12 this is completely at odds with his previous evidence
13 and also with that of Constable Mallone, Soldiers 138
14 and 145 and the civilians who accompanied Mr Friel as
15 far as Barrack Street.
16 In relation to the alleged admission,
17 Soldier 104 says, and I quote:
18 "I think I did have a conversation with him,
19 but I cannot remember any of the details of it now."
20 The incident as described by 104 in 1972 is
21 completely different to the evidence that has been
22 consistently given by Mr Friel. What I propose to do
23 now, sir, is to play a short piece of video footage
24 where Mr Friel was being interviewed in the hospital.
25 Before I play it, if I remind the Tribunal
1 about the consistent account which has been given by
2 Mr Friel: he has stated that when he heard shooting on
3 Bloody Sunday he tried to get back to his home at
4 block 1 of the Rossville Flats, but could not then get
5 into block 1 as a large crowd of people had already
6 sought refuge there.
7 He therefore decided to leave the area
8 altogether and cross Rossville Street to make his way
9 through Glenfada Park North towards the exit at the
10 southwest end. As he approached the exit, he heard
11 someone shout "look out, there is the limeys". At this
12 he stopped momentarily and turned around to look,
13 whereupon he saw at least three and perhaps four
14 soldiers in the northeast corner of Glenfada Park
15 North. One of these soldiers was standing out in front
16 of the others moving forward and firing with his
17 firearm held just above waist height.
18 Mr Friel then states he felt three shots and
19 felt a slight blow to his body. It was not until he
20 looked down and saw blood that he realised he had been
21 shot.
22 What is interesting, sir, when one plays the
23 video account, this of course is very shortly after the
24 events in question, and when Mr Friel is lying in
25 hospital injured. If we could call up video 4C.
1 (Video played)
2 LORD SAVILLE: It is no better through the
3 headphones.
4 MR TREACY: I do not know why that should be
5 so. In the copy we have it is perfectly audible. It
6 was played yesterday for us and there did not seem to
7 be any difficulty then.
8 Is there any way in which that can be played
9 with the sound audible?
10 (Video played)
11 Mr Friel, as appears both from the video,
12 which I hope the Tribunal could at least make out in
13 part, and from his subsequent statements, has
14 consistently denied that he was carrying a weapon when
15 he was shot. In fact he has stated he was not aware of
16 the 104's allegation until it was put to him under
17 cross-examination at the Widgery Tribunal and at that
18 point it came as a complete shock to him. Indeed, it
19 would also appear that his experienced legal
20 representatives were also taken completely by surprise,
21 since they had no advanced knowledge of the alleged
22 admission.
23 Mr Friel made a statement to the police while
24 he was still in hospital and there are two further
25 statements in existence, one taken from Mr Friel
1 apparently by The Sunday Times and a second by the
2 Treasury Solicitor for the Widgery Tribunal, and he
3 also gave evidence, as I have already indicated, at the
4 Widgery Tribunal itself.
5 In his statement to this Inquiry, Mr Friel
6 has noted that when the soldier got into the car, he
7 was muttering under his breath and the only words
8 Mr Friel now says he could make out were "Irish
9 bastard".
10 The witnesses Gregory Wilde and Patsy Bradley
11 were close to Mr Friel when he was shot. They describe
12 him as being "part of the crowd running towards the
13 southwest exit of Glenfada Park North", and their
14 evidence clearly corroborates that of Mr Friel, in that
15 Mr Wilde indicates that shots were fired from soldiers
16 he saw in the northeast corner of Glenfada Park North.
17 While Mr Bradley did not look round at the
18 time and therefore did not see any soldiers, he
19 indicates he was running towards the western exit of
20 Glenfada Park North when he saw Joe Friel fall and as
21 there were no soldiers in front of him he assumed that
22 Joe Friel had been shot from behind.
23 Others who say they saw Mr Friel in the
24 aftermath of the shooting include the following: Leo
25 Young, Eileen Lafferty, Eugene McGillon, John Chambers,
1 Eugene O'Donnell, James Deehan and Manus Morrison.
2 None mentions him carrying a firearm.
3 None of these civilian witnesses describe an
4 incident that resembles the admission allegedly made to
5 Soldier 104. Soldier 104 admits he did not mention the
6 admission to anyone at the time or shortly afterwards,
7 and this despite waiting close to the checkpoint for
8 some time after he alleged that the admission was
9 made. Nor was the matter mentioned to Constable
10 Mallone, who accompanied Soldier 104 to the Regimental
11 Aid Post.
12 Soldier 104 states that the only person who
13 he told of the admission was his Platoon Commander,
14 Soldier 145, when he returned to the bridge later that
15 day.
16 Soldier 145 has provided two statements, one
17 an RMP statement and the second to the Treasury
18 Solicitor. He makes no mention of being told of the
19 alleged admission in either statement. This is despite
20 the fact that in the later statement he mentions
21 Soldier 104 speaking to him about Gerard Donaghy on his
22 return from the Regimental Aid Post.
23 It is also worth noting that in an opinion
24 prepared for the Crown's Solicitor in respect of
25 a civil action which Mr Friel brought against the MoD,
1 reference is made to the report of a Detective
2 Inspector McNeill, who had attended the Widgery
3 hearings and had reported on Mr Friel's case to the
4 DPP.
5 The opinion was prepared and signed by JBE
6 Hutton, who is now a Law Lord and a colleague of
7 Lord Saville and a former Lord Chief Justice of
8 Northern Ireland. It was countersigned by WA Campbell,
9 who is now a judge of the Court of Appeal in
10 Northern Ireland. It states that from Detective
11 Inspector McNeill's report, that it would appear that
12 104 was, as they put it, "a rather poor witness". I do
13 not know whether the Inquiry would like the reference
14 for that. The reference is SAV6122. I do not intend
15 to call it up.
16 The opinion also notes that the Detective
17 Inspector's observations, as can be seen from the
18 transcript:
19 "The soldier had to be led to give evidence
20 that Mr Friel was carrying a gun and he had made no
21 mention of the alleged admission to army investigators
22 present at the scene."
23 If we could call up at this stage the report
24 upon which the opinion from Mr Hutton or Mr Campbell,
25 as they then were -- it is MF183.
1 This is not the beginning of the report, it
2 is slightly in to the report from Detective Inspector
3 McNeill. It is in the first paragraph of the bottom
4 portion. If it could be highlighted and enlarged:
5 "I could not relate the content of the
6 alleged statement with any of the evidence given."
7 If the last paragraph on the same page could
8 be highlighted, too, please, beginning "in Friel's
9 evidence ..." That is not a very good copy, if I could
10 read what it says:
11 "In Friel's evidence on page 38, he was under
12 cross-examination by Mr Gibbens and he was asked about
13 the alleged admission as though it had taken place in
14 an army ambulance at the bridge to Altnagelvin
15 Hospital. In actual fact the soldier in his evidence
16 did not come up to strength on his evidence regarding
17 the alleged admission."
18 That can be put down from the screen. Thus,
19 in our submission it is clear that Soldier 104's
20 evidence was not considered sufficiently reliable at
21 the time to ground a criminal charge against Mr Friel,
22 or indeed even to mount a defence to a civil claim
23 against the MoD.
24 Furthermore Mr Friel was never cautioned or
25 charged for any offence arising out of the events of
1 Bloody Sunday. He was not placed under arrest and his
2 clothes were never removed for forensic analysis. What
3 we respectfully submit, sir, it is quite clear that
4 from that brief analysis of more of the more salient
5 features of the relevant statements and testimony that
6 have been begin, it is quite clear that the evidence of
7 104 is wholly false and completely unreliable.
8 If I could now turn, sir, to the case of
9 Gerard Donaghy. Again if I could adopt the same
10 structure and if I call up a picture of Gerard
11 Donaghy. This is at MF202: this was a picture that was
12 taken of him some time in early 1971. You can see him
13 with his tweed jacket and his shirt and tie.
14 Gerard's father worked in the Post Office in
15 Derry and his mother had worked in the shirt factory
16 until they married. There were three children. His
17 elder sister, Mary and his older brother, Patrick.
18 Patrick is now a priest and currently in Atlanta, in
19 Georgia.
20 Gerard had been educated in St Eugene's
21 School in Francis Street and then he moved to Rosemount
22 Boy's Primary School. On leaving Rosemount Boys he
23 went to St Joseph's Secondary School and to Strand Road
24 Technical College and then to Maydown Training Centre.
25 When he was aged 16 he took up his first and his only
1 job, as events were to turn out, at Carlin's brewery on
2 the Waterside.
3 When Mary his sister was about 18 and Gerard,
4 who would then have been about ten, their father had an
5 accident at work and died three days later. Four weeks
6 after the death of their father, their mother died as
7 well, and at this time Gerard's brother Patrick, who
8 was then studying for the priesthood in Spain, had to
9 return and go back to college. This meant that that
10 just left Gerard, who was then ten, and his big sister
11 Mary, who then effectively took over the role as
12 mother. As she says in her statement to the Tribunal
13 -- I do not think this need be called up, paragraph 2
14 of her Inquiry statement, she says:
15 "Since then I had brought Gerard up more or
16 less as my own son."
17 The two of them continued to live in the
18 family home in Wellington Street. When that was
19 knocked down in the redevelopment of the Bogside, they
20 were given a flat in Meenan Square at number 27A and
21 they were moved there in 1969.
22 His sister, Mary, and de facto mother at this
23 time, she describes him as having a brilliant sense of
24 humour and being a very kind person, who was always
25 very kind to her. His cousin Margaret Mary McNulty,
1 who has also made a statement to this Inquiry,
2 describes him in her statement as a gentle and mild
3 person.
4 Gerard continued to live with his big sister
5 after she married in 1970. In fact he was the best man
6 at her wedding and when her son Dennis was born in 1971
7 he used the babysit the child and look after it when
8 asked to do so.
9 His sister Mary gives an account of her life
10 with Gerard. This appears at MF212, which is an
11 extract from Eamonn McCann's book, entitled "Bloody
12 Sunday, What Really Happened?". Call up MF212, and she
13 is describing the kind of individual that Gerard was,
14 it is the passage that begins in the right-hand
15 column. It has been marked:
16 "He hung around with a lot of fellows his own
17 age from the area; a lot of them I never really got to
18 know. There was trouble all over this area, building
19 up every day at that time, and he would have been out
20 in it. If you were his age and went out, you were in
21 it. In 1971, when he was 16, he was given six months
22 for throwing stones at policemen."
23 I mention in parenthesis, I think this is
24 something which has been said before, at that time,
25 strange though it may seem in the year 2000, the
1 mandatory penalty in Northern Ireland for riotous
2 behaviour or throwing stones was six months
3 imprisonment, irrespective of one's previous record or
4 not:
5 "In 1971, when he was 16, he was given six
6 months for throwing stones at policemen. He was
7 running around dodging that for a time but then he came
8 in one day and told Patrick and me that he thought he
9 had better give himself up. Patrick went with him to
10 the RUC and they [the RUC] took him away. I still have
11 the letters he wrote to me from prison. He was
12 released on Christmas Eve 1971. Five weeks later he
13 was dead."
14 While he was in prison, as that paragraph
15 that I have just read indicates, he wrote regularly to
16 his sister. She has kept these letters. If I could
17 call up some of these letters, the first reference is
18 MF205. Halfway down, it is the sentence that begins,
19 the right-hand side:
20 "Tell Eddie McCallion if you see him to go
21 down to the barracks and hand himself in. I am very
22 sorry for all the trouble I caused you, but it will not
23 happen again, I can assure you."
24 Then in another letter, dated 2nd December
25 1971 -- this is at M, if that can be called up,
1 please. The second paragraph, beginning "well, how is
2 young Dennis keeping", that is a reference to his
3 sister's child, if you highlight that up until "drinks
4 on me". What he has written to his sister there is:
5 "Well, how is young Dennis keeping, does he
6 still keep you awake at night or is he quieter now?
7 I am sorry I cannot be there for the anniversary, but
8 I should be there for Christmas. I was wondering,
9 could you get me a pair of Wranglers and a Wrangler
10 jacket, which is a jean coat, with the money in the
11 Credit Union and get yourself a present and a few
12 drinks on me."
13 He finished off the letter by saying, if you
14 go to MF208, the last paragraph, he said:
15 "Well, this is all for now. PS do not forget
16 about the jeans, coat size 34, trousers 29, make sure
17 that they are Wranglers. All for now. Best of luck."
18 Gerard was released from prison on Christmas
19 Eve 1971. As Mary pointed out in Eamonn McCann's book,
20 five weeks later he was dead, dead wearing the denim
21 jeans and jacket that he had asked his sister Mary to
22 buy for him. He was only 17 at the time of his death
23 and he never did see his 18th birthday, which would
24 have been a couple of weeks later on 20th February.
25 If I could also call up MF213, this is just
1 a short extract, it may not be necessary to call it up,
2 in the same book from Eamonn McCann, Mary says:
3 "20 years on I still feel very angry. I have
4 bitterness towards the Paras. I pray every night that
5 the truth will come out. I will never be satisfied
6 until it does. I miss Gerard very much. I would love
7 to have him here today."
8 Then in an article which she wrote, this is
9 at MF211, an article which is entitled "He was a son as
10 well as a brother", she says:
11 "I have only the one brother now, I have no
12 sisters. There was just the three of us. Mummy and
13 daddy had died and I reared him from when he was 10.
14 So he was a son as well as a brother. Gerard was
15 a very good young fellow, there was never much bother
16 with him really. He was football mad.
17 "The doctor said if they could get him to
18 hospital there would be a chance of him living. So
19 Raymond Rogan and John Young put him into the back seat
20 of the car but they were stopped by the army and
21 arrested.
22 "I always think about what was going through
23 his mind, him dying on his own. They left him lying
24 alone in the car until he drew his last breath. It
25 makes me very angry. To think that he died at an army
1 post when they knew that they could have saved his
2 life. That is when they planted the nail bombs on him:
3 "He could not have get Dr Kevin Swords, who
4 saw him before he left the hospital, did not see the
5 nail bombs.
6 "I was on the march and came home. I was
7 sitting knitting away and happened to look out the
8 window when I saw everybody running and heard bangs.
9 You would have hardly seen the people's feet hitting
10 the ground, they were running that hard.
11 "So when I saw all Gerard's pals coming back
12 I said there is definitely something up. Then Father
13 Rooney came and told me he was dead. A young fellow
14 came to the door and he says 'Mary, your Gerry was shot
15 dead today.' He just came straight out with it. If
16 I had got hold of him really I would have thrown him
17 over the railings.
18 "The army eventually released his body to
19 the hospital around 10 o'clock that night. My husband
20 went to the morgue. They had no call even to lift the
21 sheet, he says, I knew by the boots that he had on
22 him.
23 "After Gerry's death I started to go blind
24 for spells. This lasted for five years. The doctor
25 told me that it was delayed shock. Sometimes I would
1 be setting the table, I would go to call him and then
2 realise. One night I got this rare feeling there was
3 somebody in the room with me. When I woke up I could
4 see him as plain as anything. Oh, God, I loved him so
5 much. Well, he never really goes away. Perhaps it is
6 because he was the youngest too.
7 "I find that it does not get any easier.
8 I pray every night that their names be cleared, I wake
9 up thinking about it.
10 "Can they not come out and admit that they
11 were wrong? I do not think it would hurt them. I know
12 it may be in the past, but until justice has been done,
13 I cannot forgive anybody."
14 If that can be put down from the screen.
15 That, sir, is the profile and the background of this
16 young man whom the army have represented, certain
17 segments of the army have represented had nail bombs at
18 the time that he was shot dead, and that background, we
19 respectfully submit, is relevant to any assessment that
20 this Inquiry makes of the truth of these allegations.
21 As far as Gerard Donaghy is concerned, apart
22 from the central submission, which has already been
23 dealt with by Mr Harvey, and I do not propose to deal
24 with the events that happened in Glenfada Park or Abbey
25 Park, but our central submission, as the Inquiry will
1 be well aware, is that the killing of Gerard Donaghy
2 was wholly unjustified and in law constituted murder.
3 But there are two discrete but related areas
4 which are relevant to his case. The first, which was
5 touched upon in the extract which I have read from the
6 book, was the refusal or the failure of the army to
7 take the wounded, Donaghy, to the hospital and instead
8 to remove him to the Regimental Aid Post, and the
9 second issue is whether or not the nail bombs had been
10 planted on him.
11 After Donaghy had been shot he was taken to
12 the home of Raymond Rogan at 10 Abbey Park. At that
13 stage he was unconscious and badly wounded in the lower
14 left abdomen. Dr Swords, who was present, told
15 Mr Rogan that Gerard Donaghy would have a chance of
16 living if he got to hospital soon. Mr Rogan
17 volunteered to take Gerard in his car and he set off
18 for Altnagelvin Hospital with the wounded man in the
19 back seat.
20 Leo Young accompanied him in the back of the
21 car. Mr Young says that Gerard was still groaning
22 while in the back of the car and at Barrack Street the
23 car was stopped at an army barricade by the Royal
24 Anglian Regiment. Mr Rogan tried to explain to the
25 soldiers at the barricade that he had a wounded man in
1 the back and that he had to get him to hospital. One
2 of the soldiers put his gun almost to his head and said
3 -- I will give you the reference, it is paragraph 11,
4 the reference is AR24.4 -- put the gun to his head and
5 said "one stiff is not enough". He was dragged out by
6 the scruff of the neck at gunpoint and thrown against
7 the fence.
8 Mr Young, who was also pulled out of the car,
9 said to a soldier "what about that young fellow, he is
10 dying?", and the soldier replied "let the bastard die"
11 and Mr Young said "you are an animal", whereupon the
12 soldier put him up against some railings, pointed his
13 gun at him and told him that if he blinked he would
14 blow his head off.
15 Soldier 135, who is the same soldier who
16 discharged his baton gun into the car containing
17 Mr Friel in Barrack Street, has stated he saw a body in
18 the back seat draped in a blanket. At paragraph 17 of
19 his statement he says that a woman came over to the car
20 and identified herself as a nurse. Soldier 135 in his
21 statement says that he told her to "fuck off, Florence,
22 this one is shitted", and she left. He then says in
23 his statement:
24 "I do not know if he was actually dead, but
25 he looked as if he was."
1 Notwithstanding that the civilians were
2 protesting that they had a wounded man whom they wanted
3 to get to hospital, the car was commandeered by the
4 army and the vehicle, still containing the wounded man,
5 was not driven to the hospital, but first to the
6 Company headquarters and then from the Company
7 headquarters to the RAP/detention centre at Craigavon
8 Bridge. No satisfactory explanation and perhaps no
9 explanation at all has ever been provided for what we
10 respectfully submit was such callous and cruel
11 treatment.
12 The Irish Government in its report -- this is
13 at U236, paragraph 262 of the report -- dealt
14 specifically with this aspect of the case. If that
15 could be called up. It is comprehensive report,
16 comprehensive in the sense in terms of the material
17 that had become available by 1997. In its report the
18 Irish Government stated:
19 "Finally, mention must be made yet again of
20 Lord Widgery's marked failure to have at least
21 admonished the army for forcing out the driver of the
22 car carrying the seriously injured Donaghy. The
23 resultant delay, for an unspecified amount of time, in
24 the administration of urgent medical assistance might
25 possibly have been a significant contributory factor to
1 his death."
2 In the questions for the experts in this
3 case, that is for Doctors O'Callaghan and Shepherd, we
4 have asked whether or not Gerard Donaghy could have
5 survived these injuries if he had received prompt
6 medical attention, particularly having regard to the
7 conclusion of the Inquiry's experts that humans have
8 remarkable capacity for survival and, as things stand
9 at the moment, we are still awaiting a response from
10 the Inquiry's experts in relation to that aspect of the
11 case.
12 What is clear, however, is that the decision
13 to remove Gerard to the detention centre RAP was, in
14 our submission, extraordinary. We also know that one
15 of the others who was removed to the same location, Joe
16 Friel, also had evidence fabricated against him. With
17 the exception of 104, whose evidence in our submission
18 has repeatedly changed, lo and behold the first time
19 that nail bombs are alleged to have been found on
20 Gerard Donaghy are at this location.
21 We submit that in this case there is
22 overwhelming evidence, civilian, medical, military,
23 police -- I am thinking here of Chief Superintendent
24 Lagan, I will come back to that later -- and forensic,
25 which in our submission demonstrate that these nail
1 bombs must have been planted on his person by the
2 Security Forces after he had been shot.
3 The black lies, the propaganda and the
4 attempt to sully and besmirch the name and reputation
5 of this poor young man, who was ruthlessly cut down in
6 circumstances which have never been adequately
7 explained, and are incapable of justification have, of
8 course, added only to the pain and anguish suffered by
9 his sister, Mary.
10 In his report, this is dealt with by
11 Lord Widgery. We have photocopied the relevant
12 extracts, because it was not possible to call it up on
13 the screen. Sir, you should have been provided with
14 a copy of the relevant extract. They are being
15 provided now. (Handed).
16 As that is being done, if I could remind the
17 Tribunal that this aspect of the case was dealt with at
18 paragraph 88 of the Widgery report. On one view
19 extraordinarily, and on another view perhaps not, in
20 light of what the material Mr Harvey has opened to the
21 Inquiry, there was this comment from Lord Widgery, and
22 when he is dealing with the question of whether or not
23 the nail bombs had been planted, he says at paragraph
24 88, he describes it as:
25 "A relatively unimportant detail of the
1 events of the afternoon."
2 A relatively unimportant detail of the
3 events of the afternoon. He went on to conclude,
4 however, that on the balance of probabilities the bombs
5 were in Donaghy's pockets throughout.
6 In our submission that approach and his
7 conclusions merely heaped further insult and injury on
8 the family of the deceased.
9 His sister, Mary Donaghy, said at paragraph 9
10 of her Inquiry statement that when Gerard left the
11 house that day, 30th January, he was wearing a blue
12 shirt, blue jumper, tight Wrangler jeans and a Wrangler
13 jean jacket. She says that his jeans were always so
14 tight that he could not get his cigarettes into his
15 pockets and he would have to carry his cigarettes in
16 his hands. In fact, he could barely get any small
17 change into his pockets.
18 This account that she gives concerning the
19 tightness of his jeans has been confirmed by a number
20 of witnesses, civilian, medical and indeed police
21 witnesses. They include, for example, Dr Swords, his
22 cousin Margaret McNulty and Police Constable
23 Montgomery, who stated in his statement -- I do not
24 think I need to call this up, Police Constable
25 Montgomery said, this is referring to Gerard Donaghy:
1 "I do not remember anything about the body,
2 other than his tight jeans."
3 Raymond Rogan, who volunteered to take Gerard
4 in his car, was, in our submission, by any standard
5 a pillar of his local community; he was the Chairman,
6 and I think still is, of the Tennis Association, and he
7 was also the liaison person between the local people,
8 the army and the RUC.
9 It is interesting to observe that Sergeant
10 McTaggart, at paragraph 14 of his Eversheds statement,
11 stated that Mr Rogan was "straightforward and honest"
12 and that he had "no reason to doubt anything they were
13 telling me".
14 Mr Rogan assisted in carrying Gerard Donaghy
15 from the front door, and he also describes his close
16 fitting denims and the wound to his side, and he also
17 describes Dr Swords examining Gerard. At paragraph 18
18 of Mr Rogan's statement, if this could be called up, it
19 is AR24.5. This is Mr Rogan's statement to this
20 Inquiry:
21 "18. When I heard the result, I was totally
22 angry. I was made out to be a liar because of the
23 evidence I had given. Lord Widgery failed to
24 appreciate that no one in their right mind would
25 deliberately take a person with bombs into their house
1 with their children there. I had told the truth and
2 the truth was obvious. If Gerard Donaghy had had bombs
3 on him, I would not have taken him in. If I had at any
4 stage become aware of the nail bombs when he was in the
5 house, I would have got him taken out. It is one thing
6 being helpful trying to save one's life, it is another
7 thing to put other people's lives at risk, especially
8 family. No way would I have put him into a car and
9 taken him to hospital if I had known that the bombs
10 were there. The point is that there were definitely no
11 bombs in any of Gerard Donaghy's pockets at any time
12 when he was with me or in my house. I have never seen
13 a nail bomb but would have recognised one if I did see
14 one. I have seen what they do and would not have had
15 anything to do with them."
16 Dr Swords, who physically examined Gerard
17 Donaghy in Rogan's house, was shown the photograph, if
18 this could be put on the screen, it is P6, photograph
19 703: this was one of the photographs that was shown to
20 Dr Swords. Dr Swords said in his Widgery evidence:
21 "I could not have failed to notice it."
22 Later at Widgery, he was describing the
23 examination that he had carried out. He stated that he
24 had pulled up his shirt after someone had looked in his
25 pockets for identification. He said that he could not
1 have failed to have noticed a quantity of nails and
2 explosives in those pockets and he himself had actually
3 helped to carry Gerard Donaghy out to the car. He
4 stated he had touched practically all of Donaghy's
5 clothing to check for other injuries. He also stated
6 if he had found a bomb he would have removed it as
7 there was a fire burning in Rogan's living room.
8 He also commented, I think as I have already
9 indicated, in respect of Gerard Donaghy's tight jeans.
10 In his statement to this Inquiry, Dr Swords
11 -- if this could be called up, AS42.3, paragraph 20 of
12 his statement to this Inquiry, Dr Swords stated:
13 "20. Attached as attachment 3 [that is the
14 photograph we were looking at] to this statement is
15 a copy photograph of Gerard Donaghy's body. This shows
16 very obvious bulges in his pockets and I think this is
17 the first thing that would strike you when looking at
18 him. I can say with total conviction that he did not
19 have these objects in his pockets when I examined
20 him." , thus repeating in essence the same robust
21 rejection there had been of Raymond Rogan, that there
22 were definitely no bombs on or in Gerard Donaghy's
23 pockets at any time when he was in the house. If that
24 could be taken down, please.
25 Then there is the evidence of Leo Young. He
1 travelled with Gerard Donaghy in the back of Rogan's
2 car. Just as with Mr Rogan, Sergeant McTaggart has
3 provided or did provide an assessment of both Mr Young
4 and Mr Rogan. He also said of Mr Young that he
5 appeared to be "straightforward and honest" and that he
6 had "no reason to doubt anything Mr Young was telling
7 him either".
8 If I could ask for this reference to be
9 called up, AY1.6, this is paragraph 28 of the statement
10 of Mr Young to this Inquiry:
11 "28. It has been said that four nail bombs
12 were found on the body of Gerard Donaghy, two in his
13 jeans pockets and two in the bottom pockets of his
14 denim jacket. I simply cannot believe that -- it is an
15 impossibility."
16 Again I would ask for that to be highlighted:
17 "I simply cannot believe that -- it is an
18 impossibility.
19 There is attached to this statement two
20 photographs showing Gerard Donaghy's body in Raymond
21 Rogan's car, marked 2 and 3. I only checked the top
22 pockets of Gerard Donaghy's denim jacket. However, if
23 there had been nail bombs in his pockets as shown in
24 photograph 3, I would have seen them. I saw his body
25 on the ground where he fell, I helped to carry him to
1 the house. I saw his body lying on the floor of the
2 house, I helped to carry him from the house to the car
3 and I sat in the car with him for perhaps 10 minutes.
4 On most of these occasions I was at his head looking
5 down at his body. There is no way that I could have
6 missed the nail bombs shown in photograph 2.
7 "To be honest, if I had seen the nail bombs
8 I doubt whether I would have carried Gerard Donaghy
9 into the house. If I had thought he was carrying bombs
10 is it really likely that I would have been in the back
11 seat with him? Everyone would have cleared off -- he
12 would have been left at the back of the house or
13 something. If he had been carrying bombs, why did not
14 the doctor see them? Why did not Raymond Rogan see
15 them? I knew that he had been shot, but I had no idea
16 why.
17 "When I saw the photograph marked 2,
18 I simply could not believe it. Something that has
19 always bothered me is that the RUC photographer only
20 took a photo of one nail bomb on Donaghy's person --
21 why did he not take photos of the other nail bombs on
22 his person?"
23 That can be put down from the screen. There
24 is other evidence, which I do not intend to rehearse,
25 from other civilian witnesses, such as Gerard McCauley,
1 Patrick McCauley, Kieran McLaughlin, Dennis McFeeley,
2 who was not a Widgery witness, Ursula Clifford, who was
3 a theatre nurse, who did not give evidence at the
4 Widgery Tribunal either, and John Stevenson, all of
5 whom were in close contact with or proximity to Gerard
6 Donaghy and all of whom confirm there were no nail
7 bombs.
8 Pausing there for a moment, we respectfully
9 submit that if their evidence is correct the nail bombs
10 must have been planted at some time after their
11 examinations and contact with Gerard Donaghy. Whilst
12 who might have done this is a legitimate source of
13 enquiry, it is inconceivable, absent a religious
14 conversion or a wholesale change of heart on the part
15 of those who were responsible for it, that those who
16 were responsible, whether they be military or police,
17 they are hardly like to acknowledge before this Inquiry
18 their wrongdoing, any more than 104 is prepared to
19 admit today that he perjured himself before
20 Lord Widgery in attributing the false admissions to Joe
21 Friel; and indeed any more than the soldiers who killed
22 and injured the deceased and wounded are likely to
23 admit that they too perjured themselves before Widgery,
24 and that the shootings were, as we submit, wholly
25 unjustified.
1 Of course, the fabrication of evidence by the
2 planting of nail bombs is no different in principle
3 from fabricating other types of evidence. Indeed
4 evidence was fabricated not only against Gerard Donaghy
5 and Joe Friel, but also against all the deceased and
6 wounded. Fabricated because the soldiers, then and
7 now, continue to repeat what we submit is a the wholly
8 false assertion that they were all gunmen or bombers.
9 This fabrication of evidence against the deceased and
10 wounded had occurred before the public announcement of
11 the Widgery Inquiry, and when they were making their
12 initial statements.
13 As far as the planting of the nail bombs is
14 concerned, it is in the nature of things that there
15 will be no direct evidence. However, it is an
16 inescapable inference, we submit, from the evidence of
17 the civilian witnesses who saw Donaghy before he left
18 the house that day, who accompanied him on the march,
19 who saw him being shot, who tended to him after he had
20 been shot, who carried him to 10 Abbey Park, who
21 examined and searched him there, who carried him to
22 Rogan's car and who travelled with him in the car, that
23 the nail bombs must have been planted, because their
24 evidence, individually and collectively, robustly
25 rejects the idea that they might have missed the
1 presence of the nail bombs.
2 Sir, I see it is 12 o'clock and I was
3 intending to turn to --
4 LORD SAVILLE: By all means, Mr Treacy, we
5 will come back at 10 to 1, please.
6 (12.00 pm)
7 (The luncheon adjournment)
8 (12.50 pm)
9 MR HOYT: Mr Treacy, before you leave
10 Mr Donaghy, are there any photographs showing him
11 before he was shot?
12 MR TREACY: No, not that I am aware of.
13 MR HOYT: He does not appear in any of the --
14 MR TREACY: No. Can I say, the transcript in
15 relation to Joe Friel this morning, you remember I was
16 playing a portion of the video but unfortunately the
17 sound was not of the quality I had expected. The
18 Tribunal may already have the reference. There is of
19 course a transcript of that audio recording; the
20 reference for it is X1, page 4.5.
21 Returning to Donaghy, sir, that completed the
22 review of the civilian evidence and the evidence of
23 Dr Swords. If I could turn rather more briefly to the
24 evidence of some of the key military witnesses in
25 relation to Mr Donaghy and really developing the theme
1 that the nail bombs were there not at the material
2 time.
3 MR TOOHEY: Mr Treacy, you may be going to
4 deal with this; is there anything that throws light
5 upon the size of these nail bombs?
6 MR TREACY: Yes.
7 MR TOOHEY: If you are going to deal with it,
8 leave it until you intend to.
9 MR TREACY: That will depend very much --
10 there are constraints of time; I had intended to deal
11 with that in relation to the forensic evidence. It may
12 be that time will not be permit me to review the
13 salient features of the forensic evidence which we say
14 corroborates the civilian accounts. It might be we
15 will do that by way of a supplemental written
16 submission rather than by taking up further time.
17 I will see how it develops, sir.
18 MR TOOHEY: Thank you.
19 MR TREACY: In relation to the military
20 evidence, Corporal 150 gave evidence to Widgery,
21 stating that within a couple of minutes after the
22 arrival of the car which contained Gerard Donaghy at
23 the Regimental Aid Post he stated he felt Gerard
24 Donaghy's pulse, but there was none.
25 If I call up on the screen, sir, page 6, it
1 is P6.703. If that could be kept on the screen. What
2 150 said, he stated in his evidence to Lord Widgery, he
3 said he looked at the body from the driver's door,
4 although in his Inquiry statement he said he opened the
5 back door, but on the driver's side. In this sense his
6 account is consistent that he was looking at the body
7 from the driver's side. If he was looking at it from
8 the driver's side, then this photograph here indicates
9 the view that 150 would have had since that photograph
10 we know was taken from the driver's side of the car in
11 which Gerard Donaghy was contained. That gives you
12 some indication of the kind of view that Corporal 150
13 would have had.
14 In Corporal 150's Inquiry statement, if that
15 could be called up, sir; the reference is B11918.003,
16 paragraph 20. In that Corporal 150 said:
17 "I do not remember anyone at the time saying
18 that the man in the back of my car had nail bombs in
19 his pockets. There was certainly nothing that was
20 visible to me. I would not have driven the car if the
21 man had had nail bombs in his pockets in case the bomb
22 was rigged or something. I am sure if there had been a
23 nail bomb or bombs in the man's pockets, I would have
24 seen them. Had I seen them, I would have told my
25 officer and the thing would have unfolded from there.
1 "I had the opportunity to see if there was a
2 nail bomb when I picked up the man's right arm to feel
3 his pulse. I picked it up by leaning over the man's
4 head and shoulder. Had he anything in his jacket or
5 trouser pockets, I think I would have seen them. I do
6 not think there was anything that looked like a nail
7 bomb. There was nothing in there either, in the
8 pockets of his denim jacket, that looked like the white
9 object in that photograph 2" that we were just looking
10 at.
11 At paragraph 21 of this statement, at the
12 start there he said:
13 "Later, when I gave evidence at the
14 Widgery Tribunal, I was shown the photograph attached
15 to this statement [it was the one we were just looking
16 at] of the body with the nail bombs in the pockets.
17 I was amazed when I saw it."
18 We respectfully submit that that is an
19 extremely telling comment. Here is another person,
20 except on this occasion it is a military witness, who
21 had close contact with Gerard Donaghy. We know from
22 other evidence including the photographs about the
23 prominence of the nail bomb in the right pocket. We
24 would submit there is no way that could have been
25 missed and if he had seen it, he certainly would not
1 have forgotten it.
2 Could I also refer the Tribunal to paragraph
3 29 of this statement? If I highlight the last sentence
4 of that paragraph beginning "I did not see any bombs on
5 the body ...". That, in a nutshell is our case:
6 "I did not see any bombs on the body. They
7 were not there."
8 That, in our respectful submission,
9 powerfully corroborates the evidence of the civilian
10 witnesses which I have already touched on.
11 Therefore, all of those who carried Gerard
12 Donaghy, who examined him, who drove him to
13 Barrack Street, did not notice and could not have
14 failed to notice the nail bombs if they had been in the
15 position that the photographs reveal. Moreover, 150,
16 who drove him from Barrack Street to the Regimental Aid
17 Post and who examined him there by checking his pulse
18 did not notice the nail bombs and, as we have seen, has
19 positively asserted they were not there.
20 The next military witness, was Captain 138.
21 I do not think it is necessary to review his evidence
22 in detail since it has already been covered in
23 considerable detail by Mr Clarke. Essentially Captain
24 138, he examined Gerard Donaghy twice and between those
25 two examinations Captain 138 actually carried out two
1 further examinations on two injured people, namely Joe
2 Friel and Mr Campbell.
3 What is important is that on neither of the
4 occasions on which he examined Gerard Donaghy did he
5 notice a nail bomb. In Captain 138's evidence to
6 Widgery -- the reference is B1853 -- if that could be
7 called up, please, just about halfway down, below the
8 letter B:
9 "Question: After they had gone away to
10 hospital, you made a second examination, and what sort
11 of examination did you carry out then?
12 "Answer: I examined his head and neck.
13 I then pulled up his shirt and vest and examined his
14 abdomen and on through to the chest. I then unzipped
15 his trousers and looked at the pelvis region to see if
16 I could determine the cause of death ... and having
17 felt round everything here and on his right side [just
18 at letter D there] ... so all I had to do was to pull
19 up his shirt and having felt round everything here and
20 on his right side I then up zipped his trousers to look
21 at the groin and pelvis region."
22 He then goes on to state:
23 "I unzipped his trousers and I put the zip up
24 again, but I may not have put it up fully."
25 We respectfully submit the last piece of
1 evidence where he refers to the examination on the
2 right side is particularly significant since
3 practically all of the witnesses who saw the
4 cream-coloured and arguably most noticeable nail bomb,
5 which was the one displayed in the photograph
6 previously, saw it in Gerard Donaghy's right trouser
7 pocket.
8 After a very exhaustive review of
9 Captain 138's evidence, Mr Clarke said this in relation
10 to the timing of 138's medical examination when he was
11 opening the case to the Inquiry:
12 "The timing given in his evidence to Widgery
13 is somewhat different, but it adds up to about 22
14 minutes, so it comes to much the same thing in the end,
15 that is a 16 to 25 minute period over which no bomb is
16 found either by the medical officer or by anybody else,
17 or by somebody else or by somebody who tells the
18 medical officer about it. It seems inconceivable that
19 if somebody had found what might be a nail bomb on
20 Gerard Donaghy and knew that someone else was about to
21 examine the body, that they would have said so.
22 In the light of the evidence which I have
23 outlined, it is hardly surprising, we respectfully
24 agree with and adopt the objections of the Irish
25 Government's assessment of the material, the new
1 material which had been made available to it and which
2 was presented to them -- their report which was
3 presented by them to the British Government in June
4 1997. The reference is U325. If that could be put up
5 on the screen, paragraph 260; it is the second sentence
6 in beginning and it will continue over to the next
7 page. What the Irish Government said was as follows:
8 "Having regard to the evidence before
9 Lord Widgery, his finding that on a balance of
10 probabilities the bombs were in Donaghy's pockets
11 throughout is so extraordinary as to border on the
12 farcical. Nail bombs, which are bulky, and this
13 partly answers your question, sir, weighing about half
14 a pound and measuring roughly 4.5 by 2 inches, could
15 not conceivably have escaped the notice of civilians,
16 medical experts and military personnel. If they were
17 present they would have been removed in any case by
18 those civilians who had brought him to shelter. Nail
19 bombs were not noticed by Soldier 138 or any of the
20 civilians who were with Donaghy during the last minutes
21 of his life -- one of whom, Young, actually stated that
22 he searched Donaghy's jacket pockets.
23 "The logic of the evidence presented to Lord
24 Widgery is that the nail bombs were not in Donaghy's
25 pockets until they were placed there while his body was
1 in the custody of the authorities. Lord Widgery
2 claimed that 'no evidence was offered as to where the
3 bombs might have come from, who might have placed them
4 or why Donaghy should have been singled out for this
5 treatment.'
6 "However, the testimonies of the Royal
7 Anglians Medical Officer and the civilian eye-witnesses
8 all agree fully on the point that Donaghy was not
9 carrying nail bombs prior to his death and the evidence
10 clearly shows that the UK and the army had the
11 opportunity to plant them. Evidence was therefore
12 offered as to where the bombs might have come from and
13 who might have placed them there. The motive for
14 planting nail bombs on Doherty was clear, since even
15 Lord Widgery found that the shooting was without
16 justification. Lord Widgery's attempt to besmirch
17 Gerard Donaghy emerges as transparent as it was
18 tawdry."
19 I think that can be removed from the screen.
20 Since that 1997 assessment by the Irish Government,
21 that assessment has now been reinforced by material
22 which has now been painstakingly unearthed since the
23 writing of that report by this Inquiry. That would
24 include 150's emphatic evidence, which I have just
25 touched upon, that they were not there; the new
1 civilian witness statements from people such as Dennis
2 McFeeley, Ursula Clifford, Patrick McAuley, Kieran
3 McLaughlin and so on; the fact that considerable more
4 detail from other witnesses and the forensic evidence;
5 indeed the even more conflicting evidence that has now
6 emerged from 104; and now also the evidence of
7 Chief Superintendent Lagan.
8 If I could call up on the screen at this
9 stage one short paragraph from the statement of
10 Chief Superintendent Lagan, which appears at JL1.19,
11 paragraph 114 of Chief Superintendent Lagan's
12 statement. The second sentence which begins:
13 "I think I was first told about it on the
14 evening of Bloody Sunday. During the conversation that
15 I had about it someone told me within the RUC
16 [I emphasise those words] that there was a rumour bombs
17 had been planted. I was also told that a doctor had
18 examined Mr Donaghy and that he had not discovered the
19 bomb, but that when Mr Donaghy arrived at an army
20 location the bombs were found on him."
21 We respectfully submit that is an important
22 account from a senior RUC officer which indicates that
23 on the evening of Bloody Sunday, and therefore before
24 any evidence was received from civilian sources --
25 which civilian sources as we all know indicated Donaghy
1 had no bombs on him when he was shot, nor in his
2 possession when he left civilian care. This indicates
3 that rumours were already independently circulating
4 within the Security Forces that the bomb in fact been
5 planted.
6 Sir, there is, we respectfully submit,
7 powerful corroboration for the civilian accounts which
8 is reflected in the forensic evidence which is before
9 the Tribunal. What I propose to do with the leave of
10 the Tribunal is not to go through that in detail now
11 but to submit that to the Tribunal by way of additional
12 written submission.
13 LORD SAVILLE: Of course, Mr Treacy.
14 MR TREACY: There are some other unusual
15 features about the items which were allegedly recovered
16 from Mr Donaghy. At paragraph 8 of Ensign 102 -- I do
17 not think it needs to be turned up , but the reference
18 is G108.654. In that intelligence summary it is stated
19 that three of the four nail bombs which were found on
20 Gerard Donaghy were made with quarex, which was stated
21 by the author of the report as follows:
22 "It is not common here and not an efficient
23 type of explosive for such purpose."
24 Whilst it is clear that that information
25 which was contained within Ensign 102, that must have
1 come from some other source and we have been in contact
2 with the Inquiry to make efforts to locate the other
3 documents which were or must have been used as the
4 basis upon which to draft the intelligence summary.
5 As far as we were aware the Inquiry has not
6 yet been provided with any report from the ATO, Captain
7 127. We have written to the Inquiry requesting that a
8 supplemental statement be taken from Captain 127
9 setting out the position in relation to the disposal of
10 the nail bombs in particular and the normal procedures
11 for preparing any such report.
12 What is also striking in this case is that
13 there was a major departure from the normal procedures
14 in respect of nail bombs. In Mr Hall's Eversheds
15 statement at paragraph 44, again it does not need to be
16 called up, he confirms that samples from the explosive
17 cores of the devices were not forwarded to the forensic
18 science laboratory for examination. He states in his
19 statement that in normal circumstances the army would
20 send samples to the forensic science laboratory to
21 attempt to identify and trace the source or origin of
22 the various elements in the bombs that were found by
23 the Security Forces.
24 It would appear to be a legitimate inference
25 from the intelligence summary 102 that the explosives
1 in the nail bombs which were found on Gerard Donaghy's
2 person must have been retained for some time at least
3 by the army in order that they can comment on them in
4 the detail that is apparent from the intelligence
5 summary. As far as we are aware, the MoD have not thus
6 far furnished the Inquiry with any documents with
7 respect to the retention, examination or disposal of
8 the explosive.
9 I will give you the two references: the
10 reference to the intelligence summary document is
11 G108.654, and the paragraph I have referred you to in
12 Mr Hall's Eversheds statement is paragraph 44 and the
13 reference is D0624. It is also now apparent from a
14 statement recently received from a Mr Woods of the SIB
15 that a number of coloured Polaroid photographs were
16 taken of Gerard Donaghy with the nail bombs in his
17 person when he was near the RAP. The reference for
18 that -- I do not need to call it up -- is paragraph 42,
19 CW1.7. In this recent statement he states there were
20 a number of Polaroid photographs which were taken of
21 Gerard Donaghy with the nail bombs in his person.
22 According to Woods he took them and may have given
23 those photographs to the ATO, Captain 127, and Captain
24 127 also refers to them in his RMP statement. The
25 reference for that is B1783.
1 So far as we are aware, these photographs
2 have not been furnished to the Inquiry. If they have,
3 we have not seen them yet.
4 In conclusion, therefore, in relation to this
5 aspect of the case, we respectfully submit that the
6 evidence of numerous civilians witnesses, including
7 Dr Swords, Nurse Clifford, and some of the military
8 witnesses, and in particular 150 and 138, demonstrate,
9 in the words of 150, that they were not there. The
10 irresistible inference from this evidence is that the
11 bombs were planted. We submit that this inference is
12 powerfully reinforced enforced by the new forensic
13 evidence which time does not permit me to review in
14 detail today.
15 You will also recall that during the course
16 of his address Mr Harvey referred to the statement of
17 the then Conservative Prime Minister, John Major, which
18 was issued on 29th December 1992. In that statement
19 John Major said:
20 "The Government made clear in 1974 that those
21 we were killed on Bloody Sunday should be regarded as
22 innocent in any allegation that they were shot whilst
23 handling firearms or explosives. I hope that the
24 families of those who died will accept that
25 assurance."
1 We respectfully submit, in relation to this
2 aspect of the case, this Inquiry now has, we submit,
3 the historic opportunity to set the record straight and
4 to publicly promulgate in its reasoned report the full
5 truth about what happened that day.
6 That is all I wish to say about that discrete
7 aspect of the Gerard Donaghy case. What remains for me
8 is to turn then briefly to the remaining three
9 individuals and to give you really a pen portrait of
10 the three remaining individuals, that is, Joseph Mahon,
11 Gerard McKinney and William McKinney.
12 So far as Joe Mahon is concerned -- this is
13 the bundle of photographs. It is photograph number
14 759, P6, and the page is 759, if that could be put on
15 the screen. That is actually a still photograph, which
16 was taken from a cine film from Michael Rodgers, that
17 shows Joe Mahon after he had been shot.
18 Joe was from the Creggan area and he was
19 a single man. He was aged 16 at the time when he was
20 shot on Bloody Sunday. Having left school in January
21 he was about to begin an apprenticeship as a joiner,
22 but as a result of Bloody Sunday he lost his place in
23 the apprenticeship. The only thing left for him was an
24 apprenticeship as a bricklayer. He was a keen
25 sportsman who enjoyed Gaelic football and hurling.
1 Having been captain of the school hurling team. He was
2 also captain of the McMahon Cup team and Loughaneer
3 Team. At the time he was wounded he played for
4 Columbcille Gaelic Football Club. He played once for
5 Derry Minors and for the County Vocationals. Although
6 he was county material he was unable to continue
7 playing the sport he loved due to on-going health
8 reasons and thus his career playing football sadly
9 ended as a result of the injuries he sustained on
10 Bloody Sunday.
11 After Bloody Sunday he could not take up
12 these sports again because of the damage that had been
13 done to his hips. Whilst he was in hospital he was
14 told that he would suffer severe arthritis and would
15 probably be in a wheelchair by the time he was 45.
16 Mentally, as a result of what happened to him on Bloody
17 Sunday, his outlook changed and he became more
18 withdrawn and introverted.
19 Joe Mahon, as the Tribunal has already heard,
20 was one of those people who was shot in Glenfada Park.
21 He was also one of the people who has made a very
22 detailed statement to this Inquiry about the murder of
23 Jim Wray. In his statement he describes how Jim Wray
24 was murdered by a soldier and that he himself was
25 terrified that he also would be murdered.
1 Having witnessed such a traumatic experience,
2 it has been very, very difficult for Joe Mahon to talk
3 about the events of Bloody Sunday until recently when
4 he made a very detailed statement to Eversheds. He
5 obviously, even at this point in time, has considerable
6 feelings of guilt and has explained how he himself felt
7 like a coward for being unable to call to Jim Wray to
8 stay still, and even to this day feels partly to blame
9 for his death. This severe emotional trauma has
10 resulted in Joe receiving, and continuing to receive,
11 medication for depression.
12 When Joe was 18 he married Eileen Lafferty,
13 the Knights of Malta volunteer who you will have seen
14 referred to in his statement and who he remembers
15 shouted to him on Bloody Sunday when he was lying face
16 down in Glenfada Park, and as a result of which he
17 believes his life may very well have been spared. They
18 have five children, and it is important to note that
19 Joe Mahon has never had any political affiliations and
20 has a clear record.
21 If I could turn now, sir, to William
22 McKinney, who was shot and killed in Glenfada Park.
23 P685, if it could be called up; this is the photograph
24 which has already been displayed and in which you can
25 see Willie McKinney standing there with very
1 distinctive glasses. William McKinney, or Willie as he
2 is known, was 3 days from his 27th birthday when, we
3 submit, he was murdered on Bloody Sunday. He was the
4 eldest of 10 children -- six brothers: George, Mickey,
5 Joseph, Patrick, Peter and John and three sisters:
6 Kathleen, Mary and Anne.
7 When he died Willie had been engaged to a
8 Derry woman, Liz O'Donnell, for some six years. Willie
9 McKinney had no criminal convictions and no political
10 affiliations. He was a quiet, placid and reserved man,
11 always well-dressed and looking respectable. In fact
12 his smart appearance, dark rimmed glasses, which you
13 can see in the photograph on the screen, and his habit
14 of carrying a raincoat over his arm reinforced the
15 family nickname "the Professor".
16 His sister, Anne, who was 15 when he was
17 killed said in her statement to this Inquiry:
18 "You knew if you went to tell Willie
19 something you had to have your facts exactly right or
20 he would send you back out to get more information."
21 Willie had been bright at school and enjoyed
22 it. John McLaughlin who attended the march on Bloody
23 Sunday saw Willie McKinney there and they had been at
24 school together. In his statement to this Inquiry --
25 this is at AM339.2, if this could be called up,
1 please -- just at the top where it begins "I stepped
2 out of the march":
3 " ... I stepped out of the march to shake his
4 hand. I had not seen him since school days because
5 I had been in Scotland. He was always a quiet fellow
6 and he had thick glasses because he had very bad
7 eyesight. The school we had gone to was not the best
8 in the world -- I had one jotter throughout my time at
9 school -- but Willie always seemed to have more books
10 than anyone else and I would say he was probably more
11 intelligent than the rest of us."
12 Willie left school at the age of 15 to take
13 up a job in a chemist's shop. It was through a friend
14 that he started to work in the offices of the Derry
15 Journal. Initially he was brushing up but he soon
16 moved on to learn his trade as a compositor, the job he
17 was doing when he died. At the Derry Journal -- if
18 this could be called up. MF201 is an extract from
19 a book called "Lost Lives", which is quoting from
20 a tribute which appeared in the Derry Journal at the
21 time of his death. In the left-hand column, it begins:
22 "Willie was not a stone thrower", if that
23 could be highlighted, please, fourth line down in the
24 second paragraph in the left-hand column. The second
25 full sentence in the second paragraph, the next
1 paragraph down, the tribute, which is quoted in full
2 here, states:
3 "Willie was not a stone thrower, a bomber or
4 a gunman. He had gone to the civil rights march in the
5 role of amateur photographer. He was a printer by
6 trade, an outstanding craftsman. The layout of some of
7 the reports and advertisements in this very issue,
8 which also records his untimely death, bears testimony
9 to his professional ability. Personally he was
10 a quiet, pleasant, hard-working young man, helpful to
11 and co-operative with all who were privileged to be
12 associated with him. He was engaged to be married. He
13 had the expectancy of a long and happy life."
14 Willie McKinney loved his job, but outside of
15 his work he was also a keen amateur photographer. Part
16 of his initial excitement about working at the Derry
17 Journal was fueled by his hope that he could some day
18 move into photography there. He took still photographs
19 and cine films of family members on special occasions,
20 his joy at such times enhanced by his act to capture
21 them in a permanent form. He developed his photographs
22 himself at home after dark when the rest of the family
23 had gone to bed.
24 If we could call up at this stage video 32 at
25 36 minutes.
1 (Video played)
2 That is Willie McKinney. Willie had a great
3 sense of family and family responsibility. When he
4 died he managed to save quite a bit of money, but
5 a considerable portion of his wages were given to his
6 mother and father. His interest in film led him to
7 erect makeshift cinema screens at home using sheets to
8 show Mickey Mouse films to his younger brothers and
9 sisters. Events like this and the record player he
10 bought for the family were rare and unusual treats in
11 the Derry City of the 1960s and 1970s.
12 Willie's job with the Derry Journal also
13 allowed him to get free tickets to dances in town for
14 his teenage sisters. From these descriptions it is not
15 difficult to see why his family adored him, and his
16 brothers and sisters still say he was a great brother.
17 Willie's interest in film and photography was
18 also to the fore when he attended the civil rights
19 marches at Magilligan and on Bloody Sunday. Annie
20 McKinney's memory of her son as he left to attend the
21 march on Bloody Sunday is, and I quote, "I thought to
22 myself, nothing will happen to Willie today, they will
23 think he is a reporter, him with his camera over his
24 shoulder."
25 Mickey recalls seeing his brother filming the
1 march on Bloody Sunday from a tree he had climbed along
2 the route; that is referred to in his statement to this
3 Inquiry.
4 As with many of the families of those killed
5 on Bloody Sunday, it was some time before the McKinneys
6 became aware that Willie was dead. They did not
7 immediately fear for his safety that evening, as they
8 knew he had arranged to meet his fiancee at the
9 Guildhall at 7.30. When finally they became aware that
10 he may have been one of those that was shot, Willie's
11 father went to the hospital, where Willie's body was
12 one of those in the morgue. His funeral was held the
13 following Thursday, the day after the joint funeral for
14 the others who had died on Bloody Sunday.
15 His sister Kathleen was living in Puerto Rico
16 at the time, and the family postponed the funeral until
17 she could return to Derry. Knowing him as they did,
18 the events of Bloody Sunday and the subsequent attempts
19 to justify the killings have made it impossible for the
20 McKinney family and all those who knew Willie to accept
21 the circumstances of his death. The Derry Journal
22 summed up these feelings as follows -- if I could call
23 up MF201 -- it is the paragraph in the bottom left-hand
24 corner, beginning:
25 "The death of such a man as Willie McKinney
1 and the circumstances in which it occurred give the lie
2 to British Army spokesmen, who by attempting to condone
3 the appalling events of Derry's Bloody Sunday, have
4 demeaned the once proud title 'officer and
5 gentleman'."
6 That can be taken from the screen. It is
7 only in recent years that the family has once again
8 been able to talk about Willie's death. Speaking about
9 the devastating effect it had on her, Annie McKinney --
10 if we could call up MF199 -- this is a quotation again
11 from Eamonn McCann's book, entitled "Bloody Sunday,
12 What Really Happened". It is the second paragraph in
13 the right-hand side, beginning "for years". She summed
14 up her feelings as follows:
15 "For years Willie's name never was mentioned;
16 I just could not do it. I would have broken down. It
17 is still terrible. I remember Willie's father taking
18 our boys to the one side after it and saying me and
19 your mother never want to go through that again, so
20 promise me you will not go looking for revenge, and
21 they have not. I have to admire them."
22 If I could then move, finally, to Gerry
23 McKinney and the photograph which is MF224. Gerry
24 McKinney was 35 when he was shot dead on Bloody
25 Sunday. At the time of his death he had been married
1 to Eda for almost 12 years and they had seven
2 children: Kevin, Aileen, Regina, Tracy, Martin, Fred
3 and Maraid. Kevin, the eldest, was just 11 at the time
4 of Bloody Sunday and an eighth child, Gerry, was born
5 eight days after his father was killed.
6 Gerry McKinney was a well-known and
7 well-liked man, full of fun and very involved in the
8 community. The family were at their most settled when
9 he died. They were back living in Derry, as Gerry had
10 hoped they would be, having previously moved around
11 when he worked in Ballymena and Belfast.
12 In Eamonn McCann's book the following passage
13 appears:
14 "He was a good man. He was not a bit
15 politically-minded. He laughed and joked and loved
16 fun. He ran the roller-skating at the Ritz. Gerry was
17 great on skates and when the blind doctor gave up
18 running it, he enjoyed it so much he took over. He ran
19 dances on Saturday nights there as well and I would do
20 the sweet shop for him."
21 Gerry had been a weighing machine mechanic
22 when he met his wife. The family then moved to
23 Ballymena when he worked in British Echlon (inaudible)
24 in Antrim and then to Belfast when he worked in
25 Grundigs. When he came back to Derry in 1969 Gerry set
1 up his own business making iron grids. At the time of
2 his death, he had worked for McLaughlin's wrought iron
3 works on the Strand Road.
4 Gerry's death tore his whole family apart.
5 His wife adored him. They met when she was 18 and he
6 was 21 and they were together until his death on Bloody
7 Sunday. She has said -- this is MF214 and again this
8 is an extract from Eamonn McCann's book -- about
9 halfway down; it is the paragraph that begins:
10 "We met at a dance and here was me, 'I don't
11 like him', but I knew within a week there was nobody
12 but Gerry. It was the same for him. It was great.
13 The picture of him that has been published in the books
14 does not do him justice at all. I remember him having
15 it taken for his driving licence and I said 'do not be
16 putting that in your driving licence, it looks
17 terrible.' He was beautiful, he was a real doll."
18 If that could be taken down from the screen.
19 Eda McKinney remembers her husband leaving the house on
20 Bloody Sunday. He picked her up and swished her
21 round. "I will see you at six, doll", he said. He
22 always called her "doll". Kevin McKinney remembers his
23 mother missed his father when he was away working, but
24 no matter how upset she became during his absences,
25 they saw how their father's return and his use of this
1 affectionate pet name for their mother would always win
2 her round and put her back in good spirits.
3 Eda McKinney was placed on heavy medication
4 at the time of her husband's death. Such was its
5 effect on her that at one stage Mrs McKinney was not
6 aware that her husband's body had already been taken
7 from the house to the chapel. After his body had gone,
8 Mrs McKinney went downstairs to sit with her husband,
9 only to leave the house and wander in the rain outside
10 looking for him when she did not find him there.
11 Although her eighth child was born a matter
12 of days after his father's death, Mrs McKinney could
13 not bring herself to speak the child's name, to call
14 him Gerry. Instead she called him "baby". To her
15 son's constant embarrassment this was a habit that
16 persisted until he was 16 and beyond, and unfortunately
17 Gerry, who was the individual who I had most contact
18 with before this Inquiry had been set up, has now
19 himself unfortunately died.
20 Eda McKinney's grief severely affected her
21 for some time after Gerry's death. She has told how
22 she would put on her dead husband's coat and tie and
23 sit in the corner with his picture stuck to her face.
24 She slept with a picture and his pyjamas. She lost
25 weight, at one stage weighing less than 6 stone. The
1 result of the heavy medication at the time is that Eda
2 McKinney and her children now feel that she did not get
3 a chance to properly grieve for her husband.
4 Gerry McKinney's children have lived with
5 their father's death and seen its effect on their
6 mother for all of their lives. His sons Fred and Kevin
7 have spoken of how many people he knew and how highly
8 he was regarded. They remember the countless letters
9 and messages of sympathy they received at the time of
10 his death and how just knowing that so many people
11 liked their father was of some comfort to them.
12 The McKinney family's hopes for this Inquiry
13 are quite simple: they do not seek revenge or
14 retribution, but justice. Eda McKinney speaks for them
15 all when she says -- again I am quoting from Eamonn
16 McCann's book:
17 "I would like somebody to come out now and
18 say they were innocent. I know it is asking a lot of
19 them after Widgery and after everything else that has
20 happened, but they should say it. I wish they would
21 say they were sorry. It would be great."
22 However, even if this were to happen the
23 death of Gerry McKinney will always be deeply felt by
24 his family, and his wife in particular. She says:
25 "It is easier for me now. I can go out and
1 enjoy myself, but it is always there. It will always
2 be there. I will never put it behind me."
3 If I could finally play video 14 at 0.01.17.
4 (Video played)
5 Therefore in conclusion, sir, we would say
6 that Eda McKinney really expressed the hopes not just
7 of herself, but of all of the families of the deceased
8 and the wounded when she says she would like somebody
9 to come out now and say they were innocent and that she
10 wished they would say they were sorry.
11 That concludes my address, sir.
12 LORD SAVILLE: Thank you, Mr Treacy.
13 Opening Submissions by MR McCARTNEY
14 MR McCARTNEY: I, along with my learned
15 friend, Mr Lavery, appear for Alana Burke and the
16 families of Peggy Deery, Hugh Gilmore and Kevin
17 McElhinney. Can I say at the outset that
18 I respectfully adopt the general comments of Mr Harvey,
19 Mr Finnegan and Mr Treacy. On behalf of my clients
20 I adopt the comments of Mr Clarke and Mr Harvey. Those
21 comments substantially reduce the need for me to go
22 beyond what amounts to a personal portrait of the four
23 people for whom I appear.
24 Can I say at the outset, though, that an
25 additional difficulty faced by this Tribunal involves
1 the need to have a clear and accurate understanding of
2 the perceptions held by the various individuals and
3 groups associated with these events almost 30 years
4 ago.
5 The majority of people on this march already
6 felt that they represented a generation of victims;
7 victims of political, social and economic alienation.
8 Individually the majority on this march lived more in
9 fear rather than in respect of the Northern Ireland
10 state and the institutions employed to preserve the
11 sectarian ethos. Collectively, through the medium of
12 simple, dignified, peaceful protest, they shared the
13 courage to ask for political, social and economic
14 equality.
15 They were not in any sense republicans or
16 Communists, anarchists or socialists, they were just
17 decent, ordinary people, making by what today's
18 standards was an extraordinary request: justice and
19 equality for all. No one truthfully expected the reply
20 which those people received on that date. So who were
21 these ordinary people?
22 Peggy Deery was born on 9th August 1933 and
23 she died on 26th January 1988. She was originally
24 Peggy McIntyre, and ironically she came from a family
25 with a long tradition of service to the British Army.
1 On 31st January 1972, she was a 38-year-old widow; her
2 husband had died of cancer of the spine some three
3 months previously. She had 14 children aged between
4 the years 10 months and 16 years. Uniquely, she was
5 the only woman shot on Bloody Sunday. Curiously this
6 fact has been overlooked by a number of officially
7 endorsed publications on the Parachute Regiment.
8 She lived at the time at 7 Swilly Gardens in
9 Creggan, although by the time she would be released
10 from hospital the family would have moved to 82 Creggan
11 Heights.
12 She was the first victim to be shot in what
13 is now defined as Sector 2. She was shot in the
14 wasteground north of Rossville Street car park. She
15 was thereafter taken to 33 Chamberlain Street and
16 removed by ambulance to Altnagelvin Hospital. The
17 bullet had entered her left upper thigh, causing
18 extensive soft tissue damage. There was a fracture of
19 the distal end of the femoral shaft with marked
20 displacement and fragments.
21 She would remain in hospital until 29th May
22 1972. Her recovery would be adversely affected after
23 being supplied with a Rhesus positive blood
24 transfusion. Peggy was Rhesus negative. She remained
25 seriously ill for some months, although police managed
1 to record a statement from her on 19th February 1972.
2 It is interesting to pause at that point and
3 look at the background and circumstances in which that
4 statement was taken. She had not seen her children for
5 almost three weeks. She had been made aware that a
6 large number of people had been arrested and a good
7 number of them had been charged. She was also aware
8 that one of the reasons she was on the march that day
9 was people could be arrested and put in prison without
10 any apparent charge.
11 She was aware that those who had been shot on
12 Bloody Sunday were being represented as gunmen or
13 bombers, and therefore she was understandably confused
14 and was clearly an extremely worried woman. She was
15 more frightened then than she had ever been, not for
16 herself, but a fear that arose out of the possibility
17 that she could lose her family.
18 In that statement she seeks to avoid telling
19 the fact that she was associated with the Civil Rights
20 Association or that she was on that march. More
21 significantly, however, there is no attempt within the
22 body of that statement to obtain or provide
23 a description of the soldier who shot Peggy Deery.
24 If I could pause at that moment, and perhaps
25 if we could take up MF174, please. That is
1 a photograph of Peggy Deery with her son, Tony, who has
2 attended virtually on a daily basis throughout this
3 Tribunal hearing.
4 It was fairly clear at the time that any
5 admission by Peggy to the fact that she was on that
6 march or providing a statement by her of a description
7 of the soldier who opened up on her on that particular
8 day could carry serious repercussions for her.
9 Six weeks would pass before she would see all
10 of her children. In the meantime Margy, her
11 15-year-old daughter, assisted by her 13-year-old
12 sister Helen, assumed day-to-day responsibilities of
13 looking after the rest of the children in that family.
14 Their formal education basically ended at that point.
15 When Peggy emerged from hospital, she
16 depended almost totally upon these girls and they were
17 only too willing to adopt the role as able care
18 assistants. Peggy would be destined to wear a caliper
19 for the rest of her days. The hardship of a single
20 parent rearing 14 children at a time when the conflict
21 in Northern Ireland was almost at its height was to
22 take on a greater dimension and was considerably added
23 to by her newly acquired handicapped status.
24 As if that was not enough, she would become
25 the rest of her life the merciless target of insult and
1 taunt by patrolling members of the security forces. In
2 those circles she would ever become known as "chicken
3 leg". Peggy bore these insults with dignity and
4 patience. Some of her children responded in a more
5 extreme manner and through time Peggy's home became
6 a frequent target for police and army raids. Again,
7 she endured these occasions with a silent dignity and
8 patience.
9 If loyalty to any cause was to be identified
10 as far as Peggy Deery was concerned, it was a loyalty
11 of a devoted mother. She went to every length to rear
12 and protect her children. Tragically she would lose
13 her elder son to the Troubles and another son would die
14 in equally violent circumstances.
15 For Peggy Deery, as with a great number of
16 people participating on this march, the march itself
17 was as much a focus and a medium for social interaction
18 as it was for political protests. Peggy could leave
19 the cares of a one-parent family for a couple of
20 hours. It was people like Peggy Deery that gave this
21 march the carnival atmosphere so evident in the footage
22 and photographs already viewed by this Tribunal.
23 Peggy was not a republican; she was just an
24 ordinary, decent woman caught up in an extraordinary
25 event. Her life and the lives of her children will be
1 significantly altered forever by those events.
2 If I could turn now to Alana Burke. She will
3 give evidence on her own behalf. If you turn up MF225,
4 please. Alana Burke was born on 10th April 1953. She
5 was the eldest of 10 children: three boys and seven
6 girls. There were twin girls, Christine and Caroline,
7 aged 17 at the time; Morcilla, aged 15, Ann-Marie, 14;
8 Liam, 13; Seamus, 11; twins Sarah and John, aged 8; and
9 Teresa, aged 3. They all lived at 267 Bishop Street.
10 Her father, aged 46, had died approximately six months
11 prior to Bloody Sunday from a massive coronary.
12 Following the death of her father, her mother
13 became clinically depressed and eventually residential
14 treatment was required. The responsibilities for the
15 children fell to Alana and she undertook the day-to-day
16 management and supervision of the family home.
17 As can be seen from this photograph, she
18 prepared and financed the trip for the twins' holy
19 communion a short time after her father's death. She
20 became responsible for school uniforms, meals, doctor's
21 appointment, going to church, hospital visits. All in
22 all she had adopted the maturity of a lifestyle that
23 someone twice her age would be reluctant to approach.
24 She left school with five O levels, she
25 became an accounts clerk and she worked for four years
1 with the local company, Desmond Motors. Later she
2 secured work with Robert Smith & Company, a wholesale
3 medical suppliers. She worked in the same capacity in
4 Manchester for many months. Eventually she became
5 homesick and she returned home to Derry.
6 She married here in 1982. She had two
7 children, one of whom was adopted. If I could turn up
8 MF226, please. This is a photograph of Peggy with her
9 eldest son, now aged 18, currently studying A levels,
10 and it is his hope that he will shortly attend
11 university.
12 Her adopted son is presently aged 9 and her
13 husband currently enjoys a moderate success as a local
14 businessman. Like Peggy Deery, it is difficult to
15 conceive what possible threat Alana Burke would have
16 been to the Northern Ireland state on this date.
17 Again, can I repeat that she was just an ordinary
18 teenager with extraordinary responsibilities growing up
19 in extraordinary times.
20 Hugh Gilmore was a young man on the threshold
21 of life. He was 17. Can I have up on the screen
22 MF176, please? The family of Hugh Gilmore would
23 acknowledge that he disliked school. However, he
24 showed an enthusiasm for any activity which required
25 manual or physical dexterity. He was the youngest in
1 a family of eight children, four sisters and four
2 brothers. The family had no political affiliations.
3 He was educated at Saint Patrick's Primary School in
4 Pennyburn, and St Brecan's Secondary School. He left
5 school at 15.
6 His ambition was to become a mechanic and he
7 approached virtually every garage in and about the
8 Derry City area in pursuit of this ambition.
9 Eventually his perseverance paid off and he
10 was offered a job with the Northern Tyre company; not
11 quite what he wanted, but still it was a job and he was
12 prepared to take it.
13 He had been working there for approximately
14 18 months when he was shot. To all that knew him, he
15 loved his job. Hugh's father had been a talented
16 footballer in his time, he had played for Derry City
17 Football Club. Hugh was fiercely proud of this fact,
18 although he was often the butt of jokes as his own
19 skills never matched those of his father.
20 His father, like many men in this city, had
21 to work to keep a family. Seasonally he was sent to
22 England with the purpose of sending money home; times
23 were tough.
24 At the time of Hugh's death, his father was
25 employed by the local council as a road sweeper. The
1 older children had left the family home and were in the
2 process of starting families of their own. The
3 hardship of earlier times had been relieved by the
4 security of a regular weekly wage coming into the
5 house. In addition to that there were also less mouths
6 to feed.
7 Out of his five pounds a week wages, Hugh was
8 entitled to keep ten shillings. His mother, as the
9 only one left in the house, could now afford to spoil
10 him and he was always regarded among his family as the
11 baby. A close bond clearly existed between him and his
12 mother and, if we could have AM451, paragraph 21 up on
13 the screen, please.
14 I should say that this is a statement from
15 Geraldine McBride, formally nee Richmond. I can make
16 the point very simply --
17 LORD SAVILLE: Which paragraph?
18 MR McCARTNEY: Paragraph 21, I have it
19 recorded as in my notes. Perhaps if the second page of
20 the document could be highlighted. It is the wrong
21 statement. AM45.1, I beg your pardon: paragraph 21,
22 please:
23 "At this time Hugh was still conscious. When
24 I looked at his wounds, I did not know how he had
25 managed to run after he had been shot. He was talking
1 to me. He told me his address and that he wanted his
2 mother."
3 This request to a large extent highlights the
4 very close relationship that this young man enjoyed
5 with his mother and which has been emphasised to me by
6 a considerable number of the members of his family.
7 In relation to that family, they were not
8 known as republican, in fact are still not known as
9 a republican family even to this day. The house was
10 never raided. There is no doubt that Hugh's death came
11 as a complete and devastating shock to this family.
12 His bedroom became a virtual shrine to his memory. His
13 clothes, posters and personal belongings remained
14 untouched for years after his death; his overalls had
15 acquired an almost static shape, due to the resin and
16 chemical properties which he had used during the course
17 of his work. They remained untouched and his mother
18 could be frequently found in his room holding on to his
19 clothes and looking at his photograph.
20 It would be years before his mother agreed to
21 part with these clothes, and ironically she died soon
22 afterwards. The mother could never leave her home at
23 23 Garvan Place, block 2, if it meant using the door in
24 the vicinity of where Hugh was shot.
25 It was often said that a man's true character
1 can be judged by the company he keeps. Among his
2 constant friends in 1972 could in later years be found
3 publishers, mechanics, civil servants, teachers,
4 businessmen and builders. At one time these young men
5 were suspected, and maybe occasionally identified as
6 potential stone throwers. Unlike Hugh Gilmore, they
7 avoided paying the ultimate price.
8 Finally if I can turn to Kevin McElhinney and
9 if I could have photograph or image MF128 on the
10 screen, please: Kevin McElhinney, like Hugh Gilmore,
11 was aged 17. Again, another young man on the threshold
12 of life. He was born and reared at 44 Phillip Street.
13 Close, it should be pointed out, to Victoria RUC
14 station and opposite Fort George military post. This
15 was a mixed neighbourhood. There were three girls and
16 two boys in the family. Kevin was the middle child and
17 the youngest boy. The family had no interest
18 whatsoever in politics. The father was a solid family
19 man; he had a sober and consistent manner and this was
20 illustrated by the fact that he was employed as
21 a fitter by the same company for over 50 years. It was
22 a Northern Ireland transport company.
23 Mr McElhinney, like many in his generation,
24 only wanted a decent life for himself and his family.
25 As a working-class man, purchasing his own home was an
1 enormous commitment and a tribute to his determination
2 to better his family's standing. He had absolutely no
3 interest in politics and politics were never discussed
4 in the house.
5 Kevin was regarded as a quiet and industrious
6 if not slightly self-conscious lad. He had a slight
7 visual impairment which probably contributed to this.
8 His nature was reflected in the interests which he
9 developed as a teenager. He had acquired a large
10 number of discarded floorboards and with these he
11 floored the attic and then built up a Scalextric
12 racetrack. He would add to this every week from what
13 little he was allowed out of his regular wage packet.
14 In addition to this, he had a very keen
15 interest in working with wood and he built a pine fire
16 surround as a 16 year old. Remarkably, to this day
17 that item still sits proudly in the family living
18 room. The Northern Ireland Housing Executive, through
19 the medium of grants, visited this house several times
20 with the view to making improvements, but because these
21 improvements involve the removal of this fire surround,
22 the house remains as it is. That is the strength of
23 the memory and illustrates the deep sense of loss which
24 this young man's sudden and tragic death still provokes
25 within this household.
1 He was interested in all the normal pursuits
2 of a happy and balanced young man. He was a long
3 distance runner and he was also very keen on football.
4 Can we have image MF129, please? This is a photograph
5 of Hugh with a local youth club football team. He
6 remained a fervent and enthusiastic member of this
7 football club. Can I have MF130 up, please.
8 Hugh was often called upon to babysit his two
9 younger sisters. They have made statements about him
10 and these generally reflect upon the impression that he
11 made upon them: he was generous and patient and he gave
12 a lot of his time to them. At 16 he was offered
13 a mechanics course in Belfast and ironically his mother
14 talked him out of going because of the reputation for
15 sectarian murder which Belfast had at that time
16 acquired. She was just too afraid to let him go.
17 Hugh then eventually obtained a job as
18 a trainee storeman with Lipton's supermarket in the
19 city. He worked six days a week. On Saturdays his
20 duties involved security man at Lipton's front door,
21 that is searching people coming in and out of the
22 store.
23 He walked to work every day, both at
24 lunchtime and morning time and after work, past Fort
25 George. His routine, his father says, you could set
1 your clock by. He was never arrested in his life. He
2 and his father enjoyed an easy relationship, the sort
3 of special relationship that most fathers would envy if
4 they were to witness it with any other father and
5 a teenage son.
6 He was teaching his father to drive. One
7 such lesson had already been planned for January 30th,
8 1972. He had put on his good brown suit, his green
9 pullover and new brown boots. He had gone to mass and
10 he had eaten his lunch. He asked both his parents
11 could he go to the march and both agreed that he could
12 and he then made arrangements when he returned that he
13 and his father would then go for another driving
14 lesson.
15 As the Tribunal is aware, he was shot from
16 behind outside block 1 of the Rossville Flats; he had
17 no firearm; he had no bomb. At its height this
18 Tribunal might speculate that he was throwing stones.
19 At its evidential height, he may have been seen picking
20 up a rubber bullet.
21 The family, by 8 o'clock on Sunday night,
22 became increasingly concerned about his failure to
23 return home. His father's uncle's brother Mark decided
24 to go to Altnagelvin Hospital to see if he was there.
25 Telephone calls had been made to both Altnagelvin and
1 Letterkenny Hospital that day and they had been told
2 that no one answering Kevin's description was in
3 hospital. Some time later that evening his uncle
4 marked returned to say that he had positively
5 identified Kevin in the hospital. The family remained
6 in a state of shock for the remainder of the night.
7 The following day, early in the morning the
8 father still, with a sense of disbelief, decided to go
9 to the hospital himself and eventually made his way to
10 the morgue, where he was met with two armed policemen,
11 both of whom were holding machine-guns. He explained
12 who he was and why he was there.
13 He was shown into the morgue, there was one
14 body left. That was his son, Kevin. Once he had
15 formally identified his son one of the policemen turned
16 to Mr McElhinney and said "this will end it all now".
17 Mr McElhinney, who had kept his head down, worked
18 steadily for the same company for 50 years, turned to
19 that policeman and said "I think you have just started
20 it". Those words were prophetic.
21 The body was eventually brought home, and the
22 wake was attended by as many Protestants as it was
23 attended by Catholics. At one point during the course
24 of the first evening that Kevin's body had come home,
25 the army arrived outside and began to taunt those who
1 were either arriving or leaving the house. Fortunately
2 an incident was averted when, after several hours,
3 someone had the sensitivity to order them out of the
4 area.
5 Even to this day the McElhinney family are
6 still not republican. They have not changed, they
7 still remain an ordinary decent family, just as they
8 were almost 30 years ago.
9 As one of the family representatives said to
10 me, we have waited almost 30 years for this Inquiry,
11 maybe this time we will get the truth. It would be
12 a great pity to wait another 30 years. These people
13 have shown great faith and courage in lending their
14 full support to this Inquiry.
15 May I respectfully urge upon its members not
16 to let them down. Unless there is anything I can
17 usefully add?
18 LORD SAVILLE: No, thank you very much.
19 Opening Submissions by MS QUINLIVAN
20 MS QUINLIVAN: Sir, I represent the families
21 of John Young and Michael McDaid with Mr Harvey QC, and
22 I also represent Mr Patsy O'Donnell.
23 If I could deal firstly with John Young, who
24 was killed at the rubble barricade. John Young was
25 only 17 years old. He was murdered on Bloody Sunday.
1 He was killed alongside Michael McDaid and William Nash
2 only minutes after the shooting of Michael Kelly.
3 I wonder at this stage if we could show
4 photograph MF132: this is a photograph of John Young
5 along with his brothers Leo and Patrick and his sisters
6 Eilis, Helena and Maura.
7 John was born in May 1954. He was the
8 youngest of the six children of Thomas and Lily Young.
9 His early years were profoundly influenced by the
10 discrimination experienced by Catholics in Derry in
11 relation to access to housing. Prior to his birth the
12 family's accommodation was a single room in someone
13 else's house, where they ate, lived and slept. This
14 was despite the fact that both of John's parents were
15 in employment, his father employed as a labourer and
16 his mother employed as a cupper in Hunter's factory.
17 When John's father suffered pneumonia before
18 his birth, his family were unable to continue living
19 under the one roof and the family had to be split up,
20 his elder sisters moving in with their grand aunts.
21 When John was born his parents were living in a squat
22 in Springtown camp, which was a disused American army
23 camp. They had lived in a one-roomed wooden hut for a
24 number of years, before moving to the relative luxury
25 of one of the tin huts which is where John spent the
1 first years of his life, living with his parents and
2 his brother Leo and his sister Maura.
3 Eventually the family were moved to a house
4 in Westway in Creggan in 1959, but even at that stage
5 the family remained split, with his two older sisters
6 continuing to reside with their grand aunts because of
7 the proximity to the schools to which they had been
8 sent. John went to Rosemount Primary School. He
9 successfully sat the qualifying examination for the
10 Municipal Technical College in Derry, although it was
11 subsequently decided he should attend St Joseph's
12 Secondary School.
13 He was considered to be bright and
14 intelligent and that description of him is contained in
15 one of the statements to this Tribunal by a former
16 English teacher of St Joseph's, John Anthony Dunne,
17 whose statement I do not need to bring up but can be
18 found at AD164.
19 He left school in 1969 at the age of 15 and
20 immediately began full-time employment at the
21 Tailor-Fit men's outfitters in Shipquay Street, where
22 he had been working part-time prior to leaving school.
23 He remained in this employment until the date of his
24 death on Bloody Sunday. Tailor-Fit was a branch of an
25 English firm and John Young appears to have had a
1 promising future within Tailor-Fit. He had been
2 selected to go to England on a managerial training
3 course in the summer of 1972 and his sister Maura
4 remembers that John's boss, Mr O'Donnell, had said to
5 her mother, "you know, Lily, it is not every young
6 fellow, especially from the Derry branch, that gets
7 that opportunity".
8 As with any young Catholic growing up in
9 Derry, John could not fail but to be politically
10 aware. He opposed internment, which is why he attended
11 the Bloody Sunday march. Prior to the Bloody Sunday
12 march he had also come upon the scene -- a scene
13 referred to in Mr Harvey's opening and also by
14 Mr Clarke, where Annette Magavagan, a young child, had
15 been shot and killed, and his family recollect that
16 this incident had upset him deeply. However, his
17 reaction had not been to become politically involved,
18 his reaction had been that he wanted to get out of
19 Derry and as far away from the Troubles as he could.
20 His hope, which he expressed to his family on
21 more than one occasion, was that if the managerial
22 course in England went well he would be able to work in
23 England and have his future in England.
24 As the youngest of six children born late to
25 his parents he was treasured by his family. He was
1 described by his brothers and sisters as the apple of
2 his mother's eye and her favourite child. He was
3 a teenager at the time he was killed and was described
4 as "wild about music". As a child he had been a member
5 of a prize-winning choir, and as a teenager he enjoyed
6 an active social life, much of it revolving around the
7 music scene in Derry and in Donegal.
8 Eugene Roddy, his best friend, who has made
9 a statement to this Tribunal, which is not yet
10 contained in bundle A, but can be found currently at
11 MF227 to 233, talks about John Young, who he attended
12 the march with. He says:
13 "We went everywhere together. We used to go
14 to dances together. We were both interested in music
15 and John used to follow the bands around. He was very
16 interested in music and girls. Rioting was not his
17 scene. He was like a roadie for the bands and he was
18 also quite interested in playing with the bands. It
19 was a good way of pulling girls."
20 On 30th January 1972, all of John's brothers
21 and sisters attended the march. His family remember
22 that John was particularly excited by the prospect of
23 going on the march because it was the first civil
24 rights march he had ever attended. Previous marches
25 had been held on Saturdays and John was always working
1 on Saturdays and had consequently been unable to
2 attend.
3 He went on the march with Eugene Roddy, Noel
4 McLaughlin and Brian Joseph McKay and while everyone in
5 his family had agreed they would meet back at his
6 parents' house at the end of the day, John was going on
7 to a club after the march.
8 His dress sense, both on the day of march and
9 on other occasions, was the source of much comment by
10 his family and friends. He had a reputation as a smart
11 dresser and at the time of Bloody Sunday, at the age of
12 17 years, he owned three suits, which he had bought
13 over his years of working for Tailor-Fit. He was
14 well-dressed on the day of the march and this was the
15 source of comment by his friends, who reminded him he
16 was going on a march and not on a dance.
17 However, the reality for John was that as
18 well as this being an opportunity to express his
19 opposition to internment, the march was seen by himself
20 and his friends as a social occasion, where they could
21 meet up, check out the talent and have some crack.
22 As Brian McKay stated in his statement, which
23 can be found at AM100, which I do not need to have
24 brought up:
25 "We were there to see the women more than
1 anybody else."
2 Certainly John's motivation in attending the
3 march on Bloody Sunday was far from the motivation that
4 has since been ascribed to him. He was killed
5 alongside Michael McDaid and William Nash at the rubble
6 barricade, one of seven who died at that location.
7 A source of deep distress to his family, and
8 to the family of Michael McDaid whom I also represent,
9 was the manner in which he was treated having been shot
10 and killed. Those persons who had gone to the
11 assistance of Michael Kelly, who had been shot just
12 minutes before, were unable to reach John Young,
13 Michael McDaid or William Nash, because of the volume
14 of shooting going over the rubble barricade at that
15 time.
16 His body was eventually thrown on to the rear
17 of an APC by members of Parachute Regiment. This is an
18 incident which was witnessed and recollected with
19 horror by large numbers of civilian witnesses, who gave
20 evidence both at Widgery and to this Tribunal. They
21 variously described the rough manner in which the
22 bodies were treated. Anne Gallagher, one of those
23 witnesses, described them as having been thrown into
24 the back of the Saracen like cattle.
25 Even more disturbing for the families was the
1 decision by soldiers and officers of the Parachute
2 Regiment to deny those three men both spiritual and
3 medical assistance. Bernard Feeney of the Knights of
4 Malta and Father Irwin both were lied to in terms of
5 where these bodies were and were denied access
6 initially to the three men in the back of the APC.
7 Eventually access was given when they were accompanied
8 by Father Mulvey.
9 The callousness and inhumanity of this
10 incident is one which has haunted the families of John
11 Young and Michael McDaid since the date of Bloody
12 Sunday.
13 Moreover, while Michael McDaid, John Young
14 and Michael Nash were removed from the rubble barricade
15 and thrown into an APC at approximately 4.30 pm, it was
16 not until after 6.00 pm they were eventually taken to
17 Altnagelvin. No adequate explanation has ever been
18 forthcoming for that delay, nor is there any
19 explanation forthcoming to any of the statements which
20 have so far been provided to this Tribunal.
21 What is clear, however, is that the manner on
22 which these bodies were dealt with on Bloody Sunday and
23 the manner in which they were handled contributed
24 directly, it would seem, to the forensic evidence which
25 was used against those three men to such effect at the
1 Widgery Tribunal and contributed directly to them being
2 labelled as gunmen or persons being associated with
3 gunmen.
4 John's family, with the exception of John and
5 his brother Leo, who has been referred to earlier,
6 arrived home safely from the march and as they had
7 their tea they heard the first news of people having
8 been shot. When his sister Maura went to the local
9 shop, she was advised that if her brothers were still
10 missing she should contact Altnagelvin, and when she
11 did so she was advised she should go to Altnagelvin
12 immediately in connection with her brother John.
13 She attended the hospital in the company of
14 neighbours and she recollects the scene of horror at
15 the hospital, with blood everywhere, the wounded being
16 brought in and many distressed families seeking
17 information about their loved ones. She eventually
18 learned that her brother was dead and had had to go
19 home and break the news to her family.
20 However, John's family did not merely have to
21 deal with the difficulties of John's death. John's
22 older brother Leo was still missing at this stage and
23 it was some time before they established his
24 whereabouts. Leo, who had gone to the assistance of
25 Gerard Donaghy, had been arrested along with Raymond
1 Rogan and the car taking Gerard Donaghy was stopped by
2 the army and it was not until later that evening that
3 the family learned that Leo had in fact been arrested
4 and had been taken to Ballykelly.
5 One of the issues which has been a profound
6 difficulty for the family is the treatment of Leo
7 Young, and particularly the manner in which the death
8 of his brother was communicated to him. He was
9 questioned about his family during his detention at
10 Ballykelly and in the early hours of the morning --
11 this was at a time when those who had arrested and
12 detained him would have known of the identity of his
13 brother, John, and the fact that he was now deceased.
14 Before he left he was ordered to brush the
15 floor of the alleyway in Ballykelly. When he was
16 eventually released, he was asked by a police officer,
17 who has since been identified to him as Detective
18 Donnelly, how many brothers he had. He answered "two"
19 and Detective Donnelly's response was "you only have
20 one now".
21 At the time Leo did not understand the import
22 of this comment, but when he arrived at his home and
23 saw the crowds of people and his elder brother,
24 Patrick, came running from the house, he realised
25 immediately that John was dead.
1 John's family have had to live since Bloody
2 Sunday not only with the knowledge that their brother,
3 an innocent man, was murdered by British troops, but
4 with the degree of callousness and inhumanity in
5 addressing their grief that defies comprehension.
6 However, the final indignity for the family
7 of John Young came in the form of the
8 Widgery Tribunal. During Widgery Dr Martin's firearms
9 residue tests, which were inaccurately described by
10 Lord Widgery as a paraffin test, were relied upon to
11 suggest that John Young had been a gunman. Widgery
12 concluded that while the possibility of contamination
13 from the soldiers who had removed him from the rubble
14 barricade could not be totally excluded -- this can be
15 found at page 29 of the Widgery Report -- "the
16 distribution of particles seems to me to be more
17 consistent with Young having discharged a firearm."
18 The suggestion that John Young was a gunman
19 was the final insult to the memory of John Young to his
20 family and has been a source of deep distress and
21 anguish to this date. It was particularly distressing
22 for his mother, who died grief-stricken at the thought
23 that her youngest and favourite son had been labelled
24 a gunman.
25 When John's parents died the official
1 description of their son, as sanctioned by the
2 Widgery Tribunal, was as a gunman. They did not live
3 to hear John Major acknowledge the innocence of their
4 son, nor did they live to learn the establishment of
5 this Tribunal. John Young's family's hope is that this
6 Tribunal will eventually acknowledge the injustice of
7 his murder and clear his name.
8 If I could now deal with Michael McDaid who,
9 as I have indicated, was killed alongside John Young.
10 Michael McDaid -- I wonder if at this stage you could
11 show photograph P597? This is a photograph which at
12 this stage I think the Tribunal will be familiar with.
13 Michael McDaid was 20 years old when he was murdered on
14 Bloody Sunday.
15 He was killed alongside John Young and
16 William Nash only a matter of minutes after the
17 shooting of Michael Kelly; the image of Michael McDaid,
18 unarmed and bewildered, and moments from death, walking
19 through the rubble barricade, as those nearby attended
20 the dying Michael Kelly, is one of the poignant images
21 of Bloody Sunday.
22 Michael was the second youngest in a family
23 of twelve. He had seven brothers and four sisters.
24 While he was known as Michael to most, the family
25 called him Mickey. The family originally lived in
1 Bridge Street and moved to Tryconnell Street in the
2 Bogside, where Michael was born. He went to Long Tower
3 Boys Primary School and then went to Saint Joseph's
4 Secondary School in the Creggan.
5 Michael left school in 1967 at the age of 15
6 and began working for John Bradley immediately upon
7 finishing school. John Bradley ran a grocery shop and
8 a bar and he started as a messenger boy in the grocery
9 shop, working his way up to the position of barman.
10 As with John Young, he had been in full-time
11 employment from the date he left school until the date
12 of his death on Bloody Sunday.
13 References obtained by Michael's family
14 demonstrate that Michael was highly regarded by his
15 employer as an industrious and conscientious employee
16 and was well regarded by the customers of Bradley's
17 bar. I wonder if you could show document MF139. This
18 is a reference from Mr Bradley's son:
19 "Michael worked in my father's family
20 business for six and a half years. After he left
21 school he started working in our grocery shop and moved
22 on to the public house after a short time.
23 "He was an exceptional young man with regard
24 to both his application to work and integrity and had
25 a very pleasant disposition. He was extremely
1 clean-cut and was always well groomed and dressed
2 impeccably. He was mannerly and very upright in
3 behaviour. He did not indulge in alcohol or cigarettes
4 and had a very mature attitude to life for one so
5 young.
6 "He was very highly regarded by my late
7 father, who thought the world of him. His untimely
8 death on Bloody Sunday left an indelible mark on both
9 my family and the customers of our local business. In
10 summary I would conclude by saying that I would have
11 regarded Michael, as would all the people with whom he
12 came into contact, to have been an exceptionally
13 upright young man."
14 I wonder if we could now switch to MF222.
15 Michael had a particularly close relationship with his
16 mother. They had bought a car together, the car in the
17 photograph, and he used to take his mother and other
18 members of his family on day trips. He was generous
19 with his time and many memories of his family have
20 recollection of the last time they were taken on day
21 trips with him. The overriding image is of an
22 affectionate and generous young man for whom nothing
23 was too much trouble, particularly for his family and
24 his neighbours.
25 Michael is also remembered by his family as
1 particularly close to his young nieces and nephews and
2 in the photograph in front of the Tribunal one of his
3 nephews, Seamus Gallagher, son of his sister Bridy
4 Gallagher, is also in the photograph. His sister Bridy
5 speaks about him in these terms -- and his sister
6 Bridy, in a statement to this Tribunal, which is in
7 AG5, which again I do not think there is any need to
8 bring up, has given a detailed account of her loss and
9 her family's sense of loss at the loss of Michael. She
10 states:
11 "I feel very lucky to have had a brother like
12 Mickey, for he was not only a good brother but also
13 a great friend."
14 After Bridy got married she remained in daily
15 contact with her family, living in the next street and
16 she had three sons at the time of Michael's death in
17 1972, Seamus, Hugo and Damien. She says:
18 "My sons were very close to Mickey and loved
19 him like a big brother. It was Mickey that got
20 Seamus" who is in the photograph "to take his first
21 steps and to say his first sentence. He would call in
22 every day to our house. He loved to tape Seamus, Hugo
23 and Damien sending messages and singing for their
24 granny and granddad.
25 "Mickey had a very special way with
1 children. When Seamus started school, Mickey would
2 watch out for him every single day as he passed the pub
3 on his way to and from school."
4 Michael's family last saw him alive on the
5 morning of the march. His younger brother Kevin
6 remembers him at home at lunchtime with his mother,
7 while his sister Bridy met him on the street just prior
8 to the march. She says:
9 "He was on his way to the Creggan for the
10 start of the march. He was like myself and everyone in
11 Derry on that day -- jubilant. We were going to see
12 the biggest crowd that had ever been on a march
13 before. We spent a few minutes talking, and then we
14 said goodbye. Little did I know that the next time
15 I would see Mickey, he would be in a coffin."
16 Michael was well-dressed on the day of the
17 march, dressed in a jacket, shirt and tie. While this
18 was not unusual for him, and his brother Danny says he
19 was often described as the best dressed man in town,
20 a factor may have been that he had a date in Buncrana,
21 where he was headed when the march was over. His
22 family never learnt about his girlfriend until after
23 the march.
24 Michael was shot alongside John Young and
25 William Nash at the rubble barricade. As with John
1 Young, his body was thrown into the rear of the APC by
2 members of the Parachute Regiment and as I stated
3 earlier, this was a source of deep distress to his
4 family.
5 When the march ended and the family returned
6 to their homes, the news of the deaths began to trickle
7 through. When it was realised that Michael was missing
8 the family congregated at their parents' house to wait
9 for news. His sisters Bridy and Kathleen eventually
10 decided to go to the house of John Hume, which was
11 where a lot of the information from Altnagelvin was
12 being brought.
13 When they arrived there was a large crowd
14 there, all of them distressed and panicked about the
15 whereabouts of their loved ones. Kathleen and Bridy
16 were assured Michael was not one of those who had been
17 killed, that he had in fact been arrested. Their
18 reaction was one of relief. While he might spend six
19 months in custody on foot of an arrest at Bloody
20 Sunday, and while normally that would have been
21 a source of some distress, they had heard of the
22 numbers of dead and wounded and had witnessed the
23 distress of those who had learned of the deaths of
24 their loved ones and this seemed a relatively welcome
25 outcome to the day.
1 However, it appears minutes after they left
2 John Hume's house it was learnt that Michael was dead.
3 When they arrived home news had already arrived to the
4 family home that he was believed to be dead. No one in
5 the family can quite account for how the news arrived,
6 but what is remembered is that Kathleen -- when they
7 arrived home, Michael's mother Kathleen was ill. Her
8 daughter Bridy hastened to reassure her that everything
9 was okay and Michael had only been arrested and he
10 would be coming back. But sometime later priests
11 arrived at the family home to advise them in fact that
12 Michael was dead.
13 As Bridy describes it again in her statement
14 to this Tribunal:
15 "Our whole world had been torn apart, our
16 family changed forever. From that moment my mother
17 died inside herself. We never heard her sing or hum a
18 tune again."
19 A doctor had to be called to attend Michael's
20 mother and his elder brothers John and Danny went to
21 Altnagelvin to identify his body.
22 The treatment of John and Danny at the morgue
23 was a source of further distress for the family. When
24 they arrived at the morgue all those who had been
25 killed were lined up against the back wall and covered
1 with a blanket. After they had identified the body,
2 Michael's brother John asked if he would be allowed to
3 remain with his brother in the morgue and was refused
4 permission to do so. Yet throughout that time armed
5 soldiers and police had free access to the morgue.
6 Michael's family were devastated by his
7 death. The McDaid family believe their parents never
8 recovered from the shock.
9 Again the words of Michael's sister Bridy
10 give some indication of the level of the family's
11 anguish since January 1972:
12 "Our lives would never be the same again.
13 Coping with the stress and strain of it all was almost
14 impossible. The brutal and barbaric nature of the
15 deaths, the suffering of the injured, the callous
16 face-saving propaganda which labelled the victims as
17 gunmen and bombers and the disgracefully uncaring
18 attitude of those in power to the families of the dead
19 was hard to fathom.
20 "Widgery's whitewash tribunal simply
21 sandpapered salt onto broken hearts and open wounds.
22 How can anyone expect the families to forget this?"
23 Bridy also articulates in her statement her
24 hopes and the hopes of her family for this Tribunal:
25 "I hope for the sake of the families that
1 the British finally have the courage to let the world
2 know the truth about what happened on 30th January
3 1972. I hope to live to see the day that my mother,
4 father and two of her brothers, Willie and James, and
5 her sister Margaret, who have died since January 1972
6 did not. My mother died on 17th July 1976. She is
7 with Michael now in death and with us in spirit as we
8 seek the truth surrounding Bloody Sunday."
9 The truth which the family of Michael McDaid
10 expect from this Tribunal is an acknowledgment of the
11 murder of their brother, and cruel injustice of
12 depriving him of his innocence through the calumny of
13 describing him as someone who acted in concert with
14 gunmen. Michael's family and the community from which
15 he came have always recognised and acknowledged their
16 brother's innocence. His family now await the day when
17 the British Government acknowledge that truth.
18 His death has been described by his family
19 and friends as a loss not only to his family but to his
20 community. He would have been 48 years old this year
21 and it does seem appropriate to leave the final word to
22 his sister Bridy:
23 "Mickey was a fine, decent, hard-working,
24 loving human being. He had much to offer yet he was
25 gunned down. My family were not the only ones robbed
1 over his death, the people of Derry were robbed also.
2 They were robbed of a special person, someone who cared
3 for others more than himself, someone who could have
4 made a difference. I am proud to have had a brother
5 such as Mickey, whose short life enriched us all."
6 Finally, if I could deal with Patsy
7 O'Donnell. I wonder if the Tribunal could show
8 photograph MF223. This is a photograph of Mr O'Donnell
9 taken at the outset of this Tribunal, in March of this
10 year. Patsy O'Donnell was 41 on Bloody Sunday and at
11 the time of Bloody Sunday he was also in full-time
12 employment with roofing contractors Northwest Asphalt.
13 He had left Long Tower Boys School in 1945, at the age
14 of 14. He had started work with the roofing
15 contractors almost the week after he left school and
16 had been in full-time employment within the roofing
17 contracting business from that date until Bloody
18 Sunday.
19 He married his wife Kathleen in 1955 and in
20 1972 they had six children: Donna, who was aged 15;
21 Caroline, aged 14; Trisha, aged 13; Marceline, aged 9;
22 Phillip, aged 5; and Linda, aged 4.
23 On the morning of Bloody Sunday, after mass,
24 the whole family, as was the routine, went to visit
25 Patsy's mother, Mrs O'Donnell. She was concerned about
1 the march and advised her son not to go and he promised
2 he would not, although he had in fact already made
3 arrangements to attend.
4 He went on the march with friends, his wife
5 Kathleen went on the march with her sisters, and his
6 eldest daughter Donna also went on the march. Patsy
7 O'Donnell was not a regular marcher. He had been on
8 civil rights previously, but he believed this march was
9 particularly important, both because of its opposition
10 to internment and also because of the huge numbers that
11 it was anticipated would be present at the march.
12 Patsy did not go as far as barrier 14 on the
13 day of the march, but went through Columbcille Court to
14 Glenfada Park, intending to go to Free Derry Corner to
15 hear the speeches. When he arrived at Glenfada Park
16 and went out towards the rubble barricade, he found
17 a large group of people huddled behind the gable wall
18 of Glenfada Park. The scene was chaotic. People were
19 panicked, and he was told that soldier were shooting
20 over the barricade and that he should get down.
21 He took shelter crouching behind a fence
22 inside Glenfada Park and while trying to protect
23 himself from the soldiers, and posing no threat to
24 anyone, he was shot in the shoulder. Within minutes of
25 having been shot, he was arrested, again by soldiers
1 from the Parachute Regiment, along with all of the
2 others taking shelter and taking refuge in
3 Glenfada Park and at the gable wall.
4 It could not but have been evident to the
5 soldiers who had arrested him that Patsy O'Donnell had
6 been injured by their gunfire. He was in obvious
7 distress and pain, as described not only by himself but
8 other witnesses. He was holding a handkerchief to his
9 wound, he repeatedly told the soldiers he had been shot
10 and this was also communicated to them by
11 Father Bradley, who was assaulted for his troubles.
12 Despite his distress and pain, no attempt was
13 made to obtain medical attention for him. He was
14 repeatedly ordered instead to raise his arms above his
15 head, a movement he found excruciatingly difficult,
16 having just been shot in the shoulder.
17 Those arrested were eventually taken towards
18 the City Cabs taxi depot and civilians urged
19 Mr O'Donnell to come inside and sit down, because of
20 his clear and obvious distress. Immediately members of
21 the Parachute Regiment came running in, forcing him out
22 of the taxi depot and in the process of leaving he was
23 hit over the head by one of those soldiers, using
24 either a rifle or a baton. This blow was of some force
25 which caused him to bleed profusely at the time and
1 resulted in him having stitches later in Altnagelvin
2 Hospital.
3 LORD SAVILLE: The City Cabs taxi depot, is
4 where?
5 MS QUINLIVAN: It is in William Street.
6 LORD SAVILLE: In William Street?
7 MS QUINLIVAN: Yes, in William Street.
8 Following Father Dennis Bradley's further
9 intervention after Mr O'Donnell had been assaulted by
10 a soldier, Patsy O'Donnell was released and was taken
11 to Altnagelvin Hospital. As a result of his injuries
12 Mr O'Donnell was detained in hospital for two weeks.
13 He was operated on in relation to his gunshot wound and
14 received stitches in relation to the blow to his head.
15 When he was being taken to hospital, his wife
16 and family remained oblivious as to what had happened.
17 Kathleen O'Donnell had heard rumours that there had
18 been shooting at the march but she never associated
19 those with her husband.
20 Her recollection of that day is that she was
21 annoyed at his failure to return home in time for his
22 dinner. While waiting for Patsy to return home
23 a cousin of Kathleen O'Donnell arrived with a young man
24 and made a peculiar request for a photograph, a picture
25 of Patsy. Kathleen at this stage became concerned, but
1 was advised there was nothing to worry about. She
2 provided a picture and was then told that her husband
3 was in Altnagelvin Hospital and had been shot and was
4 injured.
5 Patsy O'Donnell was unable to return to work
6 for a period of six to eight months. However, he did
7 eventually return to his profession and in 1978 he set
8 up his own business and currently runs his own business
9 as a roofing contractor, which he continues to run to
10 this day.
11 Patsy O'Donnell gave evidence at the
12 Widgery Tribunal, one of the few wounded who was able
13 to do so. He found participation in the
14 Widgery Tribunal a disquieting experience, even prior
15 to the publication of the Report. He felt that the
16 focus of questioning centred on the existence or
17 otherwise of the fence which he had sheltered behind
18 and was designed to portray him as dishonest, when
19 a simple visit to Glenfada Park would have resolved
20 that issue.
21 He was also unhappy about the fact that he
22 was prevented from giving evidence about his arrest and
23 his assault to the Widgery Tribunal and he was
24 specifically prevented from giving this account by
25 Lord Widgery, who had decided it was not in his remit.
1 That is something that can be found in his statement,
2 which details his questioning in the Widgery Tribunal.
3 I do not need to bring up the reference. It is AO35.15
4 to 16.
5 Patsy O'Donnell was devastated by the report
6 of the Widgery Tribunal. He felt that his reputation
7 and that of others shot by British soldiers on Bloody
8 Sunday was sacrificed in order to protect soldiers who
9 had shot innocent men and women. After Bloody Sunday
10 Patsy O'Donnell suffered extensive harassment from the
11 army, harassment which he attributes directly from
12 Bloody Sunday. He was repeatedly stopped at the
13 border, which he had to cross frequently in the course
14 of his employment, and he also suffered house searches
15 and was frequently arrested and detained for
16 interrogation.
17 Patsy O'Donnell had a completely clear record
18 before and after Bloody Sunday and had no political
19 involvement either before or after Bloody Sunday.
20 Patsy O'Donnell has never attended a march
21 since Bloody Sunday, not even the Bloody Sunday
22 commemorative marches. When one of his grandchildren
23 asked him why he had not attended the most recent
24 march, he replied that the last time he had gone on
25 a march it had taken him two weeks to go home, and he
1 was not taking a chance again.
2 Patsy O'Donnell is now a grandfather to 15
3 grandchildren, and a great-grandfather to four
4 great-grandchildren. His family are certainly proud at
5 his ability to withstand what happened on Bloody Sunday
6 and his commitment to them as a family. While he has
7 not attended the Bloody Sunday marches, he supports the
8 holding of this Inquiry and he has expressed his hope
9 that at last his name and that of the others persons
10 killed and injured on Bloody Sunday will be cleared.
11 He would like the army to take responsibility
12 for its shooting and killing of innocent unarmed
13 civilians and he would like the truth of Bloody Sunday,
14 including the truth that Bloody Sunday was not an
15 arrest operation, and the killing of unarmed civilians
16 was inevitable by virtue of the manner in which it was
17 handled. He would like that truth to be officially
18 acknowledged by the British Government.
19 I have nothing further.
20 LORD SAVILLE: Thank you very much.
21 Opening Submissions by MR C HARVEY
22 MR C HARVEY: I appear on behalf of
23 John Johnston, Damien Donaghy and Daniel McGowan. I am
24 led by Arthur Harvey.
25 May I first refer to John Johnston. Perhaps
1 I could have the photograph of MF121 brought up at this
2 stage.
3 On Bloody Sunday, John Johnston was 59 years
4 of age. He lived at 50 Marlborough Street, with his
5 wife Margaret. He was the oldest victim on Bloody
6 Sunday. He was well-known in Derry; he was well liked
7 and he was well respected. He was a deeply religious
8 man, who showed a genuine concern for his fellow man.
9 He took pride in his appearance and was proud of his
10 job. He had no criminal record and no political
11 affiliations.
12 He was a draper by trade and worked in
13 McDivit's shop throughout the war years. He married
14 Margaret Duddy in 1946. Upon marrying Margaret, he
15 established his own business operating from above
16 Margaret's family pub, and he also used a van on the
17 road. It was through this business that he became very
18 well-known in Derry.
19 He operated the business for some 16 years
20 before he went to work for Eastwoods to manage
21 a clothing shop in Cookstown. After working there for
22 a few years he returned to work in Derry, where he
23 managed Hassons, one of the leading drapery stores in
24 the town, and he was working there on the day of Bloody
25 Sunday.
1 Outside work, his main interest was playing
2 golf. He was a member of Lisfannon Golf Club in
3 Donegal. Indeed he was an accomplished player, having
4 won the Captain's Cup on many occasions.
5 He also enjoyed playing cards and he enjoyed
6 singing, although not naturally gifted. On the day of
7 the march Johnny Johnson, like so many of the victims
8 on Bloody Sunday, was dressed in his Sunday best. He
9 was dressed in an overcoat, a tweed jacket, grey
10 trousers, white shirt and tie and a thick woolly
11 cardigan.
12 He watched the procession as it passed by his
13 house at 50 Marlborough Street. He then left his house
14 to go to Glenfada Park to look after a 90 year old man
15 called Tommy Duddy, to ensure that the elderly man,
16 whom he and his wife Margaret cared for, would feel
17 safe while the march proceeded by.
18 Caring for Tommy Duddy was his main mission
19 on this day. Johnny Johnson cut across the wasteground
20 to the south of the Nook Bar to go to Tommy Duddy's
21 flat. While on the wasteground he was shot by British
22 soldiers, Paratroopers who were members of the Machine
23 Gun Platoon. They were in Abbey Taxis. They were no
24 more than 30 yards from Johnny Johnson. Johnny Johnson
25 sustained gunshot wounds to his right leg and left
1 shoulder, as well as an injury to his right hand. When
2 he was shot he fell and struck his head on the
3 pavement.
4 He was carried to Shields' house, that was 8A
5 Columbcille Court, where he was treated by Dr McClean
6 and Johnny Lafferty from the Knights of Malta.
7 Perhaps I could show photograph P755 at this
8 stage. Perhaps I could then show P757. This
9 photograph shows Johnny Johnson lying prone in Shields'
10 house being attended to by Johnny Lafferty. Could we
11 have control, please?
12 Johnny Lafferty is the figure highlighted.
13 Johnny Johnson was then taken by Father Carlin to
14 Altnagelvin Hospital in Father Carlin's white
15 Volkswagen Beetle. Perhaps you could show photograph
16 MF220 at this stage. Father Carlin is the highlighted
17 figure.
18 Johnny remained in hospital for ten days.
19 However, he was never the same man again. His
20 immediate family describe him as being very quiet and
21 very introverted, most unlike himself. Indeed, he was
22 no longer as attentive to his nieces, Helen and
23 Brigitte, and his nephews, John and Jimmy, whom he had
24 previously doted on, as he and his wife Margaret had no
25 children of their own.
1 Johnny returned to work in Hassons, although
2 he appeared distant and disinterested in his work. His
3 health deteriorated rapidly and he died on 16th June
4 1972. He died from a brain tumour, which Mr Flannon,
5 a consultant neurosurgeon in the Royal Victoria
6 Hospital in Belfast, stated could have been caused as
7 a result of a blow to the head. It is for this reason
8 that Johnny is referred to as the 14th death of Bloody
9 Sunday.
10 I would now like to turn to the case of
11 Damien Donaghy.
12 LORD SAVILLE: Before you do, Mr Harvey,
13 there is some indication somewhere in the evidence,
14 unless I have misremembered it, that Mr Johnston was in
15 fact taking part in the march?
16 MR HARVEY: As far as I understand it, the
17 evidence is that he joined the march after it had
18 proceeded by his house.
19 LORD SAVILLE: That is my recollection, he
20 joined it, although I think the evidence so far
21 suggests that he joined it really because it was more
22 or less going his way.
23 MR HARVEY: That is precisely it, sir.
24 Certainly from the evidence that I have available, his
25 main mission on that day was to visit Tommy Duddy to
1 ensure that he was safe whilst the march proceeded by,
2 and it was simply a case of it enabled him to proceed
3 with the march, although not necessarily wishing to be
4 associated with it, but that his main mission was to
5 attend to Tommy Duddy.
6 LORD SAVILLE: Yes, it was connected,
7 I think, with some evidence to the effect that he did
8 not say at the time he was taking part in or joining
9 the march, for what perhaps were fairly obvious
10 reasons.
11 MR HARVEY: Perhaps he was slightly anxious
12 at that time.
13 LORD SAVILLE: As I say, there were fairly
14 obvious reasons for not saying so at the time. Thank
15 you, we can go on, I think, to Mr Donaghy.
16 MR HARVEY: Yes, Damien Donaghy. Perhaps we
17 could have photograph 750 brought up at this stage,
18 please.
19 Damien Donaghy is known as Bubbles, due to
20 the prominence of his short, black, curly hair. He was
21 15 on Bloody Sunday. He was the youngest victim on
22 Bloody Sunday. He lived at 144 Renmore Drive,
23 Creggan. He lived with his grandparents, as his father
24 and mother were dead. He attended St Joseph's
25 Intermediate School. He had just left school to begin
1 as an apprentice engineer at the Government training
2 centre.
3 He was a young boy interested in athletics
4 and he was a promising footballer, who played for the
5 renowned Derry Athletic. He was considered to have
6 been good enough to play football professionally.
7 On Bloody Sunday he met up with his friends.
8 He was late for the march, as he had been out at a
9 dance the night before. Indeed, it was the first time
10 he had been on a march. He was a 15-year-old boy
11 interested in football and going out with his friends,
12 not politics; he had no criminal record and no
13 political affiliations.
14 As the march proceeded along William Street
15 past the Presbyterian Church, Damien noticed that there
16 was a bit of commotion around the vicinity of Abbey
17 Taxis, a number of rubber bullets were fired from this
18 point. Damien sought to retrieve one of these rubber
19 bullets and keep it as a souvenir. As he was doing so,
20 he was shot by Paratroopers, members of the Machine Gun
21 Platoon; they were no more than 30 yards from Damien.
22 He was shot in the right leg above the knee,
23 his femur was badly fractured. In that moment
24 a promising football career was shattered. Damien
25 Donaghy, like Johnny Johnson, was carried to Shields'
1 house in 8A Columbcille Court, where he was treated by
2 Dr McClean and Johnny Lafferty of the Knights of Malta.
3 Like Johnny Johnson, Damien was brought to
4 hospital in Father Carlin's car, the Volkswagen Beetle,
5 indeed, the photograph that we now have displayed shows
6 Damien lying in the back seat of Father Carlin's car.
7 Father Carlin had to make two trips to the hospital
8 because Dr McClean insisted that the injured persons
9 lay flat on the back seat of the car. Damien was in
10 hospital for 14 weeks, in plaster for 12 weeks and then
11 was placed in a caliper for three to four weeks. It
12 would be three years before he would play football
13 again. However, he would never be the same player.
14 Today his right leg is riddled with arthritis
15 and his knee functions at only 75 per cent of its
16 capacity.
17 Damien lives at 49 Circular Road, Derry,
18 where he lives with his wife Joanne, whom he married on
19 25th August 1984. He lives there with his four
20 children, Michelle, Damien, Emmett and Aisling.
21 Perhaps I could have the photograph MF218 shown at this
22 time.
23 We now propose to turn to the case of Daniel
24 McGowan. Perhaps I could have photograph MF219 shown
25 at this stage. Daniel McGowan was 37 on Bloody
1 Sunday. He lived at 10 Lone Moor Gardens. He was
2 married with eight children and his wife Teresa was
3 expecting their ninth child at the time of Bloody
4 Sunday. She had another child after Bloody Sunday.
5 He was a hard-working man, dedicated to his
6 family and like many Irish men and women, he was forced
7 to leave these shores in search of work. Throughout
8 the 1950s and 1960s he worked at a variety of jobs in
9 England. Indeed, he married his wife Teresa in
10 England, at Morecombe, in 1954. He married her at the
11 end of the holiday season, as he and his wife had
12 worked at the Morecombe Bay holiday camp.
13 However, he always hoped that he could return
14 to Derry. The opportunity to return to Derry arrived
15 when Dupont decided to base a plant there.
16 Despite the best endeavours of Derry's MP,
17 Teddy Jones, to ensure that Catholics would not be
18 employed in Dupont, Danny got a job, firstly in the
19 construction and then in production.
20 He worked in Dupont from its inception until
21 Bloody Sunday. On Bloody Sunday Danny was not on the
22 march. Indeed, he was making his way across to his
23 brother-in-law's house at St Columb's Street, as he
24 normally did on a Sunday. While making his way there,
25 he spotted his eldest child, also called Danny, who was
1 15 at the time. Danny is now an accountant.
2 Danny was annoyed that his eldest son had
3 defied his orders to remain at home during the march
4 and he chased him home. Danny then proceeded towards
5 Chamberlain Street, when he saw Hugh Gilmore running
6 down the side of block 1 of Rossville Flats. Hugh had
7 been shot at this stage. Danny ran towards Hugh and
8 attended him at the southwestern corner of block 1 of
9 Rossville Flats. Perhaps I could show photograph P763
10 at this time. Perhaps you could lighten it slightly.
11 Danny McGowan is the figure highlighted.
12 It was at this time that Danny saw Patrick
13 Campbell, who was obviously wounded, at the south side
14 of block 2 of Rossville Flats. He went towards
15 Campbell and helped him as far as the passageway at the
16 rear of Joseph Place. However, the passageway at the
17 rear of Joseph Place was packed with people, so Danny
18 dragged Patrick Campbell on to the steps. While on the
19 first step Danny was shot in the right leg. The force
20 lifted him up into the air. The bullet entered on the
21 inside of the lower leg exiting on the outside. Danny
22 lay in the alleyway for almost an hour before he was
23 helped to a car at the junction of Fahan Street and
24 Rossville Street.
25 The car attempted to go up towards
1 Barrack Street. However, the driver was afraid when he
2 saw the army, the driver turned the car around and
3 brought Danny to his home at 10 Lone Moor Gardens.
4 John Radcliffe, a neighbour, then called the
5 ambulance. The ambulance was stopped on the Abercorn
6 Road. Everyone inside the ambulance was searched
7 before they were permitted to continue. Danny was
8 detained in hospital for eight to nine weeks after
9 Bloody Sunday; he was unable to return to work.
10 After Bloody Sunday he found life
11 exceptionally difficult and he was unable to return to
12 work. Therefore he no longer had his work to distract
13 him or focus his attention. Danny still lives in Derry
14 with his wife, Teresa.
15 MR TOOHEY: Mr Harvey, would you just
16 describe for us in a bit more detail the path that
17 Mr McGowan took from his home until he was shot?
18 MR HARVEY: Could we have Q9 up on the screen
19 at this point?
20 LORD SAVILLE: Mr Harvey, it may be you would
21 prefer to do that tomorrow morning, provided we are
22 running more or less to schedule, because we do now
23 have an application relating to Soldier 027. It is
24 a matter for you. If you could deal with it now, do,
25 but we could leave it until tomorrow, provided we are
1 reasonably confident we are running more or less to
2 schedule.
3 MR HARVEY: That perhaps would be the best
4 way to do it. I think the difficulty is --
5 LORD SAVILLE: Can I ask if we are running
6 more or less to schedule?
7 MR MANSFIELD: It may be for me to help at
8 this stage. I think we have had discussions as far as
9 it is possible to determine absolutely the schedule.
10 I think my learned friend Lord Gifford will be tomorrow
11 and, if I may be permitted to book part of Thursday,
12 and it will only be part of Thursday, in advance,
13 I think that is what has been agreed, that I go last
14 for the families.
15 LORD SAVILLE: Lord Gifford and you will be
16 happy for Mr Harvey to go over until tomorrow?
17 LORD GIFFORD: I think we are doing rather
18 well, I and Mr Declan Morgan would be due to go
19 tomorrow.
20 MS MACDERMOTT: I also have some
21 submissions. I appear with Mr Topolski on behalf of
22 the family of Patrick Doherty. Mr Topolski and
23 I between us will take less than an hour.
24 LORD SAVILLE: Those remaining on the part of
25 the families are happy that we can still accommodate
1 this by Thursday afternoon.
2 LORD GIFFORD: Yes, we are, sir.
3 LORD SAVILLE: Mr Harvey, if it suits you, we
4 could deal with that tomorrow.
5 MR HARVEY: We could deal with it now, if you
6 wish.
7 LORD SAVILLE: I think now perhaps is the
8 time to move on to 027. We will leave it until
9 tomorrow morning, if we may, until 9.30. We will rise
10 for five minutes and come back to that application.
11 (3.06 pm)
12 (A short adjournment)
13 LORD SAVILLE: Mr Clarke, we have an
14 application to relation to 027, but I think it might be
15 helpful to everybody present if you could introduce the
16 nature of that application.
17 Submissions by MR CLARKE
18 MR CLARKE: Yes. During the week of Monday,
19 27th September, you heard a number of submissions made
20 orally and following written submissions in relation to
21 the question of anonymity and by that ruling you
22 applied, in consequence of the second decision of the
23 Court of Appeal, your ruling that had previously
24 applied to those who fired live rounds on Bloody
25 Sunday.
1 LORD SAVILLE: That was September last year,
2 of course.
3 MR CLARKE: Yes, you applied your ruling to
4 all soldiers who played a part in relation to the
5 Bloody Sunday. That ruling was, as was its
6 predecessor, subject to a number of exceptions, the
7 only one of which that is presently relevant is those
8 soldiers whose identity the Tribunal has ruled or does
9 hereafter rule to be in the public domain.
10 The question that arises now, in the light of
11 submissions that have previously been made, is whether
12 or not that exception, namely that those soldiers whose
13 identity is clearly in the public domain, should or
14 should not apply to Soldier 027 and you have received
15 submissions from, amongst others, Lord Gifford, on
16 behalf of his clients in relation to Soldier 027. The
17 purpose of this afternoon's hearing is that Mr Geoffrey
18 Bindman, who is here on his behalf, can address
19 argument to you as to whether or not it is appropriate
20 to treat 027 as being somebody whose name is clearly in
21 the public domain and so that others who may wish to
22 contribute to that debate may do so also.
23 LORD SAVILLE: Thank you very much.
24 Mr Bindman, if it is convenient to you, we have your
25 skeleton argument and I would expect that that has been
1 distributed to everybody else for you to make your
2 submissions at this stage.
3 Submissions by MR BINDMAN
4 MR BINDMAN: I am happy to do that, my
5 Lords. I hope I am audible; I may not be visible, but
6 I hope I can be heard.
7 In my skeleton argument I started with the
8 point which relates to the rulings made by the Tribunal
9 in October 1999, and perhaps I should say straightaway
10 that I accept that of course the Tribunal may decide
11 that my client should not have anonymity by virtue of a
12 finding that his name is in the public domain, but
13 I would draw attention to the paragraph 4 of your
14 ruling in October 1999, which makes it clear that what
15 you are concerned with is those who are clearly in the
16 public domain.
17 I would submit that if you are to deny
18 anonymity on the ground that someone is already in the
19 public domain, it should only be in a very clear case.
20 I will go on to my next submission, in
21 paragraph 4, which is in fact that my client's identity
22 is not in the public domain. First of all, there are
23 only two claims which have been included in a letter
24 from Mr Tate to me of 15th November, which I think has
25 been attached to my skeleton argument; it was a reply
1 to a letter from me. There are only two suggestions
2 that my client's name has been publicly mentioned,
3 firstly, by Mr Glasgow at a hearing of the Tribunal,
4 and I think it is fair to say that Mr Glasgow has
5 accepted that he did so inadvertently or by mistake and
6 that he then apologised for doing that and accepted
7 that at that stage, at any rate, the name was not in
8 the public domain.
9 Secondly, it is said that a submission was
10 made to the Tribunal -- I have only just been told by
11 Mr Tate that there was a submission naming my client
12 which was a document put in to the Tribunal. But of
13 course that was put in along with a whole lot of other
14 names, names of other soldiers who were clearly covered
15 by the Court of Appeal's ruling. And I think by your
16 own ruling people who have admitted to having fired
17 live rounds, who are alleged to have fired live rounds,
18 and therefore seem to be fairly and squarely within the
19 category which the Court of Appeal said, should be
20 given immunity.
21 I fail to find any reference to the Court of
22 Appeal judgment to any exception or names said to be in
23 the public domain in relation to those soldiers.
24 Mr Glasgow, as I have said, accepted that he
25 was wrong to mention the name and he apologised for
1 having done so, and since that time all references to
2 my client have been by a pseudonym, by the number, and
3 no reference in the public press has appeared to his
4 name. He has never identified himself publicly. He
5 has been very concerned to keep his identity out of the
6 public domain and to the extent that it could be said
7 that it has come into the public domain, it is not in
8 any way his fault; it is something very much to his
9 regret.
10 LORD SAVILLE: I do not think anyone is
11 suggesting it is his fault, Mr Bindman, and it may be
12 through an error. Indeed, I think the Tribunal are
13 prepared to accept that was through an error that
14 Mr Glasgow mentioned his name. The fact of the matter
15 is that name was mentioned in the course of a public
16 inquiry to which the public have access, the press have
17 access, concerned with the very matters which, among
18 other things, relate to your client.
19 In those circumstances, speaking for myself,
20 I find it a little difficult to see what more would be
21 required to put that person's name in the public
22 domain.
23 MR BINDMAN: I still submit that on a proper
24 construction of the term "public domain" I am not sure
25 it is a term of art anyway. I am not sure how it is
1 defined, but it seems to me this is not a case where
2 the name has been made public in any wide sense.
3 LORD SAVILLE: Can you give me an example of
4 where you would say that a name had been made public in
5 the proper circles?
6 MR BINDMAN: If a name had appeared widely
7 in the media so that it could be known to any member of
8 the public picking up a newspaper or watching
9 television, that would be a name in the public domain,
10 but this name has not appeared in newspapers. Its
11 appearance in the transcripts of this Tribunal, it has
12 appeared once, and it would take some time and effort,
13 I suspect, for any member of the public to track it
14 down, although I accept that with diligence it could be
15 tracked down. It seems to me that is a very different
16 situation from a name which is widely publicly known.
17 I accept of course also that the name is
18 known to people in this room and it is known to the
19 clients of people in this room. That, it seems to me,
20 is very different from having the name widely broadcast
21 and widely publicly known, that at any rate --
22 LORD SAVILLE: So far as the latter is
23 concerned -- I am not saying I necessarily accepted the
24 point, but I fully understand it -- the fact that the
25 families and the lawyers acting for the families know a
1 name does not, on the face of it, necessarily mean that
2 it is in the public domain, but this case is different,
3 is it not, because of the public mention of that name
4 in a public inquiry in the presence of the public and,
5 indeed, the media?
6 MR BINDMAN: I submit that is not so,
7 because it was a long time. As I have said it has not
8 appeared elsewhere since. The mention accidentally of
9 a name so that it can be ascertained by the public
10 seems to me hardly enough to say that the name is in
11 the public domain, certainly on the interpretation
12 I would like to put on it, but if I may respectfully
13 say so --
14 LORD SAVILLE: I am sorry to keep
15 interrupting. I am finding difficulty with this,
16 because if you ask the general question: are the
17 proceedings of this Tribunal as they take place in this
18 hall, in this city, in public, the answer is,
19 undoubtedly, yes, they are. I repeat, I am finding a
20 little difficulty in seeing how more clearly somebody's
21 name could be put in the public domain than being
22 stated in the course of the public proceedings of this
23 Inquiry.
24 MR BINDMAN: I do not want to get hung up on
25 semantics, my Lord, but it may be the more important
1 question is: how significant is the degree to which
2 this name has been made public in relation to the
3 decision which you will be making as to whether
4 anonymity should be granted?
5 I would contend that even if it can be said,
6 and I submit in a very narrow sense that it could only
7 be said in a very narrow sense, to be in the public
8 domain because of this one reference that has been made
9 inadvertently, that the real question is: what would be
10 the consequence of denying anonymity? That would be
11 surely to make the name much more widely publicised and
12 allow a great many more people to have easy access to
13 it.
14 It seems to me there is a question of degree
15 here. The way your Lordship's question was posed
16 implies that you are looking at a black or white, all
17 or nothing situation; the name is either in the public
18 domain or it is not. But I would submit that this is
19 not an all or nothing situation.
20 The ability of diligent individuals to
21 ascertain the name of my client is identical for all
22 the other soldiers who, I believe, have already been
23 granted anonymity. I think they have all been listed
24 in -- I have a document here which I think is part of a
25 submission made on behalf of the Wray family which
1 lists all the soldiers in 1 Para.
2 If the view of the significance of public
3 domain is that which your Lordship has advanced, then
4 it seems to me there cannot be anonymity for anybody if
5 the test is, solely, is the name in the public domain?
6 MR TOOHEY: Does your submission amount to
7 saying that in the circumstances the name has not
8 passed into the public domain, or that it may have done
9 but nevertheless, for the future, some steps should be
10 taken with anonymity?
11 MR BINDMAN: As I have said, my Lord, I do
12 not want to get into too much of a semantic argument
13 here, because I do submit that the real question is
14 not, has the name come into the public domain, but what
15 consequences follow from that and, indeed, what steps
16 should be taken now.
17 MR TOOHEY: I am not entirely clear what is
18 meant by paragraph 3 of your submission, which seems to
19 constitute an argument that the granting of anonymity,
20 the soldiers, by reason of the Tribunal's ruling
21 following upon the decision of the Court of Appeal,
22 carries the consequence that the name should not be
23 revealed, or perhaps put more accurately, should be
24 granted anonymity, to use your words, "whether or not
25 the name was in the public domain"; is that a separate
1 argument to the one that you have been addressing thus
2 far or is it --
3 MR BINDMAN: I think that is a separate one
4 that is simply arising from the meaning of the Court of
5 Appeal decision and what they contemplated.
6 As I said before, I think I concede that it
7 is a matter for the Tribunal to decide whether to grant
8 anonymity or not and to apply the Court of Appeal
9 test. I simply observe that the Court of Appeal does
10 not deal with the question of public domain. It seems
11 to say there should be a blanket exemption for those
12 soldiers who have fired --
13 LORD SAVILLE: I find great difficulty in
14 following that. The principle the Court of Appeal
15 appeared to be following was that the personal safety
16 of the soldiers and their reasonable fears should be of
17 paramount consideration only overridden if the
18 revealing of their identity was essential for
19 ascertaining the truth of what happened, but to talk of
20 anonymity for somebody whose name is in the public
21 domain seems to me to be a contradiction in terms.
22 MR BINDMAN: I hesitate to repeat what
23 I said, but I would say there are degrees of public
24 domain. We are not really talking about an all or
25 nothing situation that there has been limited
1 publication of this name, limited to such an extent
2 that it is in a sense in the past that the name has
3 been published; it is not currently being published.
4 If I could move on to what I submit is the
5 real question here which is not whether the name has
6 already come into the public domain, but whether he
7 should be granted anonymity by the Tribunal so far as
8 any future publication of his name is concerned; that
9 seems to me the important question.
10 In deciding that question I submit that it is
11 necessary to balance the danger to him that could come
12 from the wider publication of his name against any
13 benefit that could be achieved in any shape or form by
14 allowing it to be published, and I submit that all the
15 evidence and argument is one way. It is quite clear
16 that both the Tribunal and the Northern Ireland Office
17 have accepted that he is genuinely afraid -- I think
18 the phrase appears in the memorandum that was sent out
19 with a redacted version of the agreement which my
20 client entered into with the Northern Ireland Office,
21 where, in paragraph 10, it says:
22 "The Tribunal accepted that the fear of
23 reprisals expressed by this witness was genuine and
24 reasonable".
25 I submit that it is beyond argument that if
1 the name is publicised in the media and repeated around
2 the world, as it has not been hitherto, that can only
3 increase the danger and the risk that he will face, and
4 to deny him future anonymity, to deny him anonymity
5 would be to undermine the agreement which has already
6 been reached for his protection with which the Tribunal
7 has clearly concurred.
8 The agreement itself -- I do not have the
9 redacted version that was sent to other people, I have
10 the actual version of the agreement, and it makes it
11 quite clear, although it says "the Tribunal" --
12 LORD SAVILLE: We can probably supply you
13 with a redacted version, if it would help you.
14 MR BINDMAN: It might be helpful if I could
15 have a copy of it from someone. (Handed)
16 The paragraph I was going to refer to is the
17 same as in the original agreement, paragraph 10, which
18 has been referred to by Mr Tate in a letter he wrote to
19 me:
20 "The parties acknowledge it is for the
21 Inquiry to determine whether, during the course of its
22 proceedings, Soldier 027 will continue to be known as
23 such or by any other name."
24 It certainly could be argued that this
25 supports the Tribunal's right to grant or deny
1 anonymity, and I do not think that is in dispute, but
2 the next sentence says:
3 "The Inquiry is free to make public the terms
4 of this financial agreement with the exception of any
5 details which may compromise Soldier 027's security."
6 One of the essential parts of this agreement
7 is his name. In my submission, the underlying purpose
8 of this agreement to which the Tribunal, if not a
9 party, certainly accepts, is to protect the genuine and
10 reasonable concern that my client has for his security;
11 that is something we are looking at in the future. It
12 is not a question that should be determined by what
13 happened some 18 months ago when his name was
14 inadvertently mentioned here or any document that has
15 been produced some time ago by another party to this
16 Inquiry which has been circulated among families and
17 other people.
18 It seems to me, as your Lordship referred to
19 the Court of Appeal saying, that the matter of
20 paramount importance is the safety of the soldiers.
21 The safety of my client must depend partly -- and I say
22 substantially -- on the extent to which his identity is
23 made known publicly and widely.
24 MR TOOHEY: That submission seems to
25 acknowledge that there is nothing that the Tribunal can
1 or should do in respect of past events; have
2 I understood you correctly in that respect?
3 MR BINDMAN: I do not think there is
4 anything that the Tribunal could do in relation to past
5 events. I am not seeking to invite the Tribunal to
6 make any ruling that would affect past events. What
7 I --
8 MR TOOHEY: That is what I understood you to
9 be saying. There is a question of some precision what
10 it is you are asking the Tribunal --
11 MR BINDMAN: I am asking the Tribunal to
12 order that my client be granted anonymity for the
13 purpose of this Tribunal.
14 MR TOOHEY: For the future proceedings of
15 this Tribunal.
16 MR BINDMAN: As I say, from now on would be
17 enough because obviously what has happened before
18 cannot be put right by any order of the Tribunal.
19 MR HOYT: Mr Bindman, will not the protection
20 afforded by the agreement be sufficient to allay your
21 client's fears?
22 MR BINDMAN: No, he does not feel that it
23 is. I should say that I had lengthy conversations with
24 him yesterday in which he has expressed his very deep
25 concern that his name should now become widely
1 publicised.
2 I mean, even earlier this week or last week,
3 there were reports referring to him of the proceedings
4 in this Tribunal, which of course did not mention his
5 name. Now, as I have conceded and accepted, his name
6 is known, perhaps, to everybody in this room, certainly
7 to the parties. It is not known to the wider public
8 because the press has not published it and will not
9 publish it if the Tribunal grants the anonymity which
10 I am seeking.
11 LORD SAVILLE: I am not sure, though, the
12 Tribunal has any power to prevent the press from
13 looking at the record or looking at the notes they have
14 made when they were here 18 months ago and choosing to
15 publish the name.
16 MR BINDMAN: They have shown restraint so
17 far over a long period of time and I would expect them
18 to continue to do so if the Tribunal were to grant the
19 application which I am making.
20 LORD SAVILLE: Yes, but I do not think this
21 Tribunal has any power to prohibit the media from
22 taking whatever course they wish to take.
23 MR BINDMAN: With respect, my Lord, that
24 seems to be saying that this order which, whether made
25 or not, is of no value.
1 LORD SAVILLE: I think the order that was
2 made by us does have value because, on the basis of
3 those parties who are legally represented here, we can
4 direct that they shall or shall not do that sort of
5 thing, and we have made a direction in October last
6 year. I think the media rather stand on a different
7 footing, do they not?
8 MR BINDMAN: May I then respectfully say --
9 LORD SAVILLE: If the media have means of
10 finding out what the individuals' names are, who is to
11 prevent them from publishing them if they feel that is
12 the right thing to do?
13 MR BINDMAN: Clearly they have shown respect
14 for the anonymity that has been granted up to now and,
15 even though my client may not be represented here on a
16 regular basis, it is obviously important that his name
17 should not be mentioned in the Tribunal whose
18 proceedings are public because that would effectively
19 make it much more likely that they would be referred to
20 by the media and would be therefore detrimental to my
21 client's safety, in my submission.
22 LORD SAVILLE: Does your client consider the
23 possibility of changing his name?
24 MR BINDMAN: That is one of the issues that
25 has been raised in relation to the agreement which has
1 been entered into and the advice that is being given at
2 this stage is that he should not change his name; that
3 is the advice of the Northern Ireland Office. In fact
4 he would be very anxious to change his name now if it
5 could be done, but of course ironically the paragraph
6 I read from the agreement earlier, paragraph 10, says
7 that it is for the Inquiry to determine whether he will
8 be known as Soldier 027 or by any other name, so in
9 a sense it is not for him to decide whether to change
10 his name or not.
11 As I have said, the advice he is receiving is
12 that he should not change his name at this stage.
13 LORD SAVILLE: Is that advice in any way
14 based on considerations as to his safety?
15 MR BINDMAN: This is the advice of the
16 security people who are involved.
17 LORD SAVILLE: What is the answer to that
18 question?
19 MR BINDMAN: I believe it is, but I believe
20 that another factor is related to the Tribunal and the
21 fact that when he gives evidence, he will be expected
22 to do so under a name determined by the Tribunal, not
23 under any different name; any name that he might decide
24 to adopt, therefore, no purpose would be served by his
25 changing his name at this stage.
1 I am afraid I am not able very satisfactorily
2 to answer this question because I am trying to
3 interpret advice that was given by the security people.
4 LORD SAVILLE: I quite understand that,
5 Mr Bindman, and if you are not sure, you must say so,
6 but it seemed to me that it was a relevant question.
7 MR BINDMAN: Yes, well, I do not think I can
8 add any more.
9 I think where I have reached is, in my third
10 section, I am submitting that even if his identity is
11 in the public domain, he should still be granted
12 anonymity by the Tribunal and what I have --
13 LORD SAVILLE: I repeat, I find difficulty
14 with that. There are a number of officers concerned
15 with Bloody Sunday whose names are known and are in the
16 public domain.
17 MR BINDMAN: Yes.
18 LORD SAVILLE: By the same logic, should they
19 have anonymity, as you describe it?
20 MR BINDMAN: I am not in a position to say
21 anything about those cases because I do not know the
22 extent to which --
23 LORD SAVILLE: It was clearly the view of the
24 Court of Appeal that they should not because the Court
25 of Appeal expressed as a point the fact that the
1 officers' names were known and they would be named.
2 MR BINDMAN: I do not know how widely they
3 are known, but if they are known in a way which has led
4 to their being named in the media, in the press and
5 publicly in this hearing, then I would submit that they
6 are not in the same case as my client, who again
7 I repeat myself, but he has been identified publicly
8 only on one occasion in this Tribunal, as I understand
9 it, by Mr Glasgow inadvertently, he made a mistake for
10 which he apologised and to regard that as a
11 disqualification and, as it were, to allow his name to
12 be opened up widely and publicly throughout the media,
13 throughout the world and in the Tribunal as a result of
14 that mistake, seems to me wholly unjust.
15 As I say, I do not want to go back over
16 ground that has already been covered, but I think there
17 must be a distinction between a name that has been
18 revealed inadvertently on one occasion many months ago
19 and has never been published since, and the names of
20 these officers who, as far as I understand it, are
21 widely known publicly.
22 LORD SAVILLE: I think that is an argument
23 which goes back to you saying it is not clearly enough
24 in the public domain; I follow that.
25 MR BINDMAN: I accept that; yes, it does.
1 Let me stress again, that if you do decide
2 that his name is in the public domain, that is not the
3 end of the argument. I submit that there must be a
4 balance struck between the benefits of granting him
5 anonymity from now on, if one wants to put it that way,
6 and the benefits of naming him. There is a broad
7 principle of, I accept, openness, transparency, but the
8 Court of Appeal dealt with that issue. They pointed
9 out -- I am sure the reference is very familiar, but it
10 comes close to the end of the Court of Appeal judgment
11 --
12 LORD SAVILLE: Do you have a paragraph
13 number?
14 MR BINDMAN: It is the paragraph in which
15 the Court of Appeal point out that, even if the person
16 is not named, is granted anonymity, that -- sorry,
17 I wanted to find the particular paragraph. (Pause)
18 MR CLARKE: Might I suggest 68 might be what
19 my learned friend was looking for, 68.2.
20 MR BINDMAN: That is what I was looking for,
21 my Lord, yes. Yes, the Court of Appeal says that:
22 "There can be inroads on openness in an
23 Inquiry of this sort and they suggest that the Tribunal
24 lost sight of the fact that the inroad on openness
25 involved in allowing the soldiers to use letters and
1 pseudonyms is limited. This is because (i) the
2 evidence would still be given in public with the
3 soldiers capable of being observed while giving their
4 evidence; (ii) the Tribunal knows their names, and as
5 Mr Clarke accepted, could investigate any matters going
6 to credibility; (iii) their officers who were in charge
7 and should have been controlling events will be named;
8 (iv) if there was any reason for naming a particular
9 soldier, this could still be done; and (v) the ability
10 of the Tribunal to reach the truth was, as the Tribunal
11 acknowledged, not going to be undermined."
12 Those points go to my submission that one has
13 to balance the harm done by granting anonymity against
14 the benefit of refusing it. It seems to me that there
15 is really very little harm done by anonymity being
16 granted to my client and potentially the risk to him is
17 very great, as has been generally accepted.
18 LORD SAVILLE: The reason for granting
19 anonymity is to seek to reduce or eliminate the risk of
20 malicious persons trying to do violence to the
21 individual in question.
22 MR BINDMAN: Yes.
23 LORD SAVILLE: Your submission is that, in
24 effect, malicious persons are not likely to trawl
25 through the proceedings of the Inquiry to discover, as
1 they would if they did, the name of your client.
2 MR BINDMAN: That is certainly true, but
3 that is not the whole of it because if the name is
4 widely publicised in the media, readers may recognise
5 it. They may know where he is, for example; they may
6 know members of his family; they may be able to assist
7 those malicious persons to track him down. Of course
8 that is his real fear, that he is going to be tracked
9 down by people who mean to do him harm; that can only
10 be assisted by giving wider publicity to his name and,
11 as I have submitted, for no benefit.
12 The Court of Appeal said that the risk of
13 harm to the soldiers is the paramount factor which has
14 to be considered, and if one is giving proper weight to
15 that in the case of my client, one, I submit, should be
16 assisting him to the extent the Tribunal can do that by
17 minimising the extent to which his real name will be
18 uttered.
19 It seems to me also that if one recognises
20 that there is such a risk, and it is a risk that is
21 recognised not only in relation to my client, but to
22 other soldiers, then that must outweigh any possible
23 benefit in having his name further disseminated. It
24 must apply equally to the other soldiers. I do not
25 know what the position is going to be in relation to
1 other applications for anonymity or whether there are
2 suggestions that other soldiers' names are in the
3 public domain, but there is a question of being
4 balanced and fair to all those concerned here.
5 It seems to me if there is to be anonymity
6 granted to anybody on the ground that there is a threat
7 or a risk to their security, then my client is a prime
8 qualifier for anonymity particularly as he may suffer
9 threats from two sources: he may suffer threats from
10 his former colleagues because his evidence may well
11 diverge from theirs or the evidence of some of them,
12 and also from those who perhaps take the view that all
13 the soldiers should be tarred with the same brush and
14 should all be held equally culpable.
15 There is also a paradox here, that I am not
16 sure what position other parties to this Inquiry will
17 be taking on this application which I am making.
18 I think there may be opposition to anonymity and
19 I would say if that comes from the families, that would
20 be very odd because it would be paradoxical as my
21 client's evidence is likely to give more support to the
22 contentions they are making than otherwise.
23 It would be equally paradoxical if, certainly
24 if the Wray family were to object, that would be
25 exceedingly paradoxical because one of the publications
1 are said to put my client's name in the public domain
2 comes from them; it would be paradoxical if the
3 Ministry of Defence were to oppose anonymity. I do not
4 think they are going to do so, but if they were to do
5 so it would be paradoxical because, again, part of the
6 publication of my client's name comes from their
7 counsel.
8 So it seems to me none of the other parties
9 has any good reason for objecting to anonymity for my
10 client. I am certainly not aware of any and that again
11 adds to the whole picture, the whole balance; the
12 balance in favour of giving him anonymity is not
13 matched by any corresponding benefits to anyone else
14 involved in the Tribunal. I appreciate there is a
15 question of the broad public interest in transparency
16 and openness. The Court of Appeal has made it quite
17 clear that there must be exceptions to that.
18 I do not think I can say anything more that
19 adds to any of the submissions I have made. I would
20 like to say this: if the Tribunal is minded to deny
21 anonymity, I would ask that the effect of that decision
22 be stayed or deferred to enable me to consider whether
23 the matter can be taken further.
24 LORD SAVILLE: Of course, we have adopted
25 that course in respect of other applications. You do
1 not really have to ask, Mr Bindman.
2 MR BINDMAN: I am sorry if I asked
3 unnecessarily.
4 LORD SAVILLE: Not at all, but because you
5 have not been present here, of course we would not seek
6 to preclude anyone from seeking to challenge anything
7 on which we rule by trying to pre-empt it by announcing
8 the result in advance.
9 MR BINDMAN: I understand. I am grateful
10 for that.
11 MR TOOHEY: Mr Bindman, although you have
12 used the word "anonymity" more than once, I take it
13 what you are seeking is a direction that in future
14 proceedings of the Tribunal, your client be referred to
15 only by a number designation?
16 MR BINDMAN: I would be content with that if
17 that is -- I am not asking --
18 MR TOOHEY: I am not suggesting that I am
19 persuaded to that conclusion, it just seemed to me the
20 word "anonymity" itself may give rise to difficulty.
21 MR BINDMAN: As I have said in a different
22 context, I do not want to argue semantics and if the
23 effect that I am seeking is that my client will not be
24 named by his real name at any future hearing of the
25 Tribunal and that as far as possible he will be
1 anonymous in the future as far as this Tribunal is
2 concerned, that is what I am seeking.
3 The fact he was named once some time ago in
4 the Tribunal, that is water under the bridge. I do not
5 think we can do anything to correct that. That is all
6 I wish to say, my Lord, unless there are any other
7 questions.
8 LORD SAVILLE: Thank you very much,
9 Mr Bindman. Who else wants to speak on this
10 application? Lord Gifford.
11 Submissions by LORD GIFFORD
12 LORD GIFFORD: First of all our team has been
13 mentioned, and secondly we do have some views in
14 opposition to the application. It may be helpful if
15 I very briefly remind the two members of the Tribunal
16 who are here and perhaps enlighten Mr Toohey who was
17 not of the history of the matter.
18 The Wray family had in their submissions of
19 anonymity mentioned a considerable number of names of
20 soldiers whose real names were known to them in one way
21 or another. That was to support an argument that since
22 no harm had happened to them and their names were
23 known, the threat was fanciful. We did not, in the
24 public sessions of the Tribunal, mention any of those
25 names. Indeed, I think the submission was not
1 published in its full form.
2 However, during the hearing Mr Glasgow
3 identified the name of Soldier 027. Mr Burnett, who
4 then appeared for the Ministry of Defence, intervened
5 to suggest that an order might be made under the
6 Contempt of Court Act to prevent the publication of the
7 name which had been mentioned.
8 You, sir, said that you found great
9 difficulty in making such an order and added "in theory
10 there is nothing to prevent anyone who has any of this
11 information from taking a loudspeaker and going outside
12 and regaling the public with it."
13 There was then talk as to whether the
14 transcript of the hearing on 27th April 1999 should be,
15 as it were, edited by the deletion of the name or
16 whether an order should be made. Your instinctive
17 reply, and I am quoting from the transcript, was this:
18 "What do I do, forbid the members of the
19 public who are sitting here from telling other people
20 what they have heard today?"
21 On that reasoning, after some discussion, you
22 said that you would not make any order in relation to
23 the publication of the transcript. Clearly then the
24 transcript of the proceedings was available to the
25 public, in particular over the Internet, and so it is a
1 question that anybody who wants to know what went on
2 has been able to read it over the last year and a half.
3 We have always opposed applications for
4 anonymity because we never thought that the threat was
5 sufficiently real to justify them and we think that in
6 these matters where there was a question about names
7 which is in the public domain. There is an issue of
8 principle here, that is that first of all the openness
9 of the Tribunal where possible should be enhanced; and
10 secondly, the Tribunal should not be seen to be making
11 an order in vain.
12 The reality is that this name is in the
13 public domain. My learned friend, Mr Bindman,
14 mentioned two potential sources of threat, although he
15 produces no evidence to support them: members of the
16 Soldier 027's own former regiment or soldiers who might
17 pick offence at the evidence which he is to give, which
18 I accept is evidence which is extremely damaging to
19 some soldiers in particular. That of course is hardly
20 an argument because his name is known to them and his
21 identity is known and anybody from that quarter who
22 wishes to be malevolent and knows exactly who the
23 person is because he was their colleague. I maintain
24 it would be fanciful to suppose there is any threat
25 from any other quarter, particularly given the evidence
1 which Soldier 027 is to give.
2 But the measures which the Tribunal has taken
3 were taken no doubt in the knowledge that this
4 soldier's name was known to a large number of people
5 and the point being that measures should be taken which
6 would effectively prevent people from tracking him
7 down, and we have no objection to that.
8 So I really think that the application is
9 rather made to save Soldier 027 from embarrassment
10 rather than that any decision could do anything to
11 protect his security. That is not a good enough
12 reason, much as we have some sympathy with his position
13 and appreciate the fact that he has spoken out in many
14 important ways which have yet to be evaluated.
15 Nevertheless this is an important witness, his name is
16 in the public domain and there is no sufficient reason
17 to make any order of the kind which is sought.
18 I do believe there has been some mention in
19 the Irish Press, in certainly one Irish newspaper which
20 two of the solicitors from Northern Ireland have told
21 me about, that was reported in the press in the
22 aftermath of the hearing in April 1999.
23 Thank you, sir.
24 LORD SAVILLE: Thank you very much.
25 Submissions by MR COYLE
1 MR COYLE: Sir, a number of observations:
2 Mr Bindman postulates the view that there is no
3 disbenefit to conferring anonymity upon his client.
4 A submission we made, sir, to the Court of
5 Appeal, that if Mr Bindman were to be correct, the
6 effect would be that you, sir, and your two colleagues
7 would be compelled or would feel it appropriate to
8 engage in a game of "let's pretend" or a charade where
9 everyone in this room knows the identity of the witness
10 yet we pretend that we do not and, in terms of the
11 restoration of public confidence over a matter such as
12 this which has caused inordinate disquiet, we
13 respectfully submit if that were your election, sir,
14 and those of your colleagues, that that would be a
15 major disbenefit in the carrying out of the Inquiry's
16 work.
17 It is further contended by Mr Bindman that if
18 the families were to oppose the anonymity of his
19 client, that that would be paradoxical. We reject
20 that, sir. There has been a consistent thread on
21 behalf of those whom we represent to oppose anonymity
22 totally in respect of both military witnesses and in
23 respect of a person who goes under the pseudonym B.
24 Before the Northern Ireland High Court he is seeking
25 judicial review, as you will know, sir, of your ruling
1 and we had anticipated appearing last Friday in front
2 of the Board of the Tribunal and the contention that,
3 rather like this applicant, with a name so widely known
4 that there is a major disadvantage in the proceedings
5 before the Tribunal for that person's identity -- or
6 one to attempt to confer anonymity where none exists.
7 That really is not in support of the reasoning, and the
8 observation you make, sir, that you cannot grant
9 anonymity where none exists.
10 For those reasons, there is nothing
11 paradoxical, there is a consistent thread in our
12 position and we respectfully invite the Tribunal to
13 reject the application to continue anonymity for a
14 witness whose name is widely known.
15 LORD SAVILLE: Mr Lloyd Jones, do you want to
16 say something?
17 Submissions by MR LLOYD JONES
18 MR LLOYD JONES: Sir, members of the
19 Tribunal, with your permission I should like, on behalf
20 of the clients of Mr Anthony Lawton, to refer to three
21 matters.
22 The first is the nature and the consequences
23 of the error which Mr Glasgow made here; the second is
24 the question of law to which Mr Bindman refers; and the
25 third is the question of the application of the law to
1 the facts.
2 Sir, there is no doubt that Mr Glasgow made a
3 most regrettable error in referring by name to 027 at
4 the hearing on 27th April last year. It is, of course,
5 a matter which he very much regrets and he, as you
6 know, immediately made a full and public apology. It
7 is necessary to say something about the precise nature
8 of the mistake by Mr Glasgow made. It was not
9 inadvertent in the sense that it was a slip and he made
10 that clear at the time in response to a question from
11 White J; it was rather based on a mistaken
12 understanding as to the extent of public knowledge of
13 027's identity.
14 In connection with the interlocutory matter
15 then before the Inquiry, Lord Gifford had filed a
16 document in which he set out the names which he said
17 were believed to be the names of soldiers on duty in
18 Derry on Bloody Sunday. There were, I think, 50. They
19 included some names which are unquestionably very
20 widely known, for example, General Ford, Brigadier
21 MacLellan. They also included the name of 027.
22 Mr Glasgow's error was in forming the view that 027
23 fell into the same category for this purpose as, for
24 example, General Ford and Brigadier MacLellan. He
25 believed that 027, by his own act, had deliberately
1 made his name known in the media in connection with his
2 allegations, that is that he had publicised his views
3 and his name in the press, which is what he said at the
4 time. He was in error in relation to that as to the
5 extent to which 027's name was publicly known.
6 Sir, the issue before the Tribunal today
7 requires the Tribunal to form a view as to the extent
8 to which 027's name is known to the public. That will
9 require an evaluation of three matters, in our
10 submission; firstly, the matters placed before the
11 Tribunal by Lord Gifford in his submissions of 12th
12 April 1999, that is the matters which had occurred
13 before the hearing on 27th April; secondly, the
14 consequences of Mr Glasgow's mentioning that name
15 during the course of the hearing on 27th April; and
16 thirdly, the consequences of the Tribunal's decision to
17 publish an unredacted transcript of the hearing 27th
18 April.
19 Sir, Mr Tate, solicitor to the Inquiry, in
20 a letter to Mr Lawton, the letter was dated 16th
21 November this year, says this:
22 "The Tribunal's Provisional view is that the
23 issue of whether Soldier 027's name is in the public
24 domain depends solely on Mr Glasgow's mention of the
25 soldier's name on 27th April 1999."
1 Sir, if that does reflect the way in which
2 the Tribunal is approaching the matter, in our
3 respectful submission it overlooks two vital matters:
4 it overlooks the extent of public knowledge of 027's
5 identity prior to 27th April and, secondly, it
6 overlooks the effect of the Tribunal's decision not to
7 redact the transcript.
8 Nevertheless, Mr Tate's letter does raise an
9 important question as to the effect of a witness's name
10 being mentioned in error in the Guildhall. It gives
11 rise to a practical question as to how this should be
12 dealt with in the future; a matter of particular
13 concern to us and it is a matter on which we would in
14 due course welcome the Tribunal's guidance.
15 The Tribunal's practice in this regard has
16 not been consistent. We know that in the case of 027
17 the Tribunal did not redact the transcript. However,
18 on another occasion on which Counsel to the Inquiry
19 read out in error details of a witness which might have
20 placed that witness at risk the transcript was in fact
21 redacted.
22 It seems to us, sir, it is very likely that
23 there will be slips in future, certainly we would
24 suggest in the course of evidence when witnesses will
25 be asked to give evidence in relation to what they saw
1 and referring to other persons, and they will be asked
2 to do that by reference to numbers and letters. It
3 seems highly likely that there will be slips in the
4 future, and in our submission, it would be in
5 everyone's interests that the Tribunal should lay down
6 in advance how the matter should be dealt with as a
7 practical matter.
8 In our submission, if that happens the
9 Tribunal should not further publish the information, at
10 least until such time as there has been full argument
11 as to the effect of the disclosure in the Guildhall,
12 and it would not necessarily follow from the mere fact
13 of a single reference in the Guildhall that the
14 Tribunal could conclude that publishing the name more
15 widely would not expose the person concerned to risk or
16 the increased risk of attack; in other words
17 notwithstanding the fact that a name is mentioned in
18 the Guildhall, the maintenance of anonymity may
19 nevertheless continue to serve a purpose. It will
20 depend on the particular circumstances of each case.
21 Returning to the facts of the present matter:
22 the first matter which the Tribunal will have to take
23 account of is the extent of public knowledge of 027's
24 identity prior to the 27th April. That is a matter
25 which is addressed by Lord Gifford in his submissions
1 dated 1st November 1999, in particular in paragraphs 5
2 and 6. I do not propose to recite those.
3 Before the Tribunal could reach a conclusion
4 that the issue whether 027's name is in the public
5 domain depends solely on Mr Glasgow's conduct on 27th
6 April it would have to evaluate and reject
7 Lord Gifford's submissions and the evidence in support
8 of them. That factual issue --
9 LORD SAVILLE: I am not quite sure why that
10 follows. I mean, if what happened under the Tribunal
11 is a clear publication of the identity of 027 why
12 should the Tribunal have to go into the details of
13 other submissions which ex hypothesi simply do not
14 matter.
15 MR LLOYD JONES: Sir, what is said is that
16 the Tribunal's view is that whether the name is in the
17 public domain depends solely on Mr Glasgow's mention of
18 the name. In our submission, the Tribunal would have
19 to consider whether Lord Gifford is right in his
20 submission that the name was already in the public
21 domain. The factual issue is a matter on which we can
22 contribute little; it depends on an assessment of the
23 evidence which Lord Gifford is able to produce in
24 relation to that.
25 LORD SAVILLE: Again I do not follow that
1 because what would be wrong with saying -- I am not
2 saying we are going to say this -- whatever the
3 position before that day, whatever the position on that
4 day, his name, we came to this conclusion, was put
5 clearly in the public domain?
6 MR LLOYD JONES: Sir, that is not what
7 Mr Tate said in his letter; that is rather different.
8 If what the Tribunal is saying is whether or not the
9 name was already in the public domain, it was put in
10 the public domain by Mr Glasgow's act, is rather
11 different from saying it depends solely on Mr Glasgow's
12 act. In fairness to Mr Glasgow it is a matter which
13 the Tribunal should consider.
14 Lord Gifford made detailed submissions to the
15 Inquiry that this name was already in the public
16 domain. If that is right it is simply not correct to
17 assert, as Mr Tate does in his letter, that the
18 bringing of the name into the public domain depends
19 solely on what Mr Glasgow did.
20 LORD SAVILLE: Why does this matter? If
21 Lord Gifford is right that it was in the public domain
22 before, then it is in the public domain. If
23 Lord Gifford is wrong, one moves to what happened under
24 the Tribunal. Why does this matter, Mr Lloyd Jones?
25 MR LLOYD JONES: The Tribunal has to consider
1 the totality of what has occurred; it has to decide in
2 light of those facts whether any further purpose would
3 be served by maintaining anonymity by continuing to
4 refer to this soldier by a cipher.
5 It does matter as to what is the cause; it
6 matters of course to Mr Glasgow. It is also important
7 that the Tribunal should assess the precise extent to
8 which a name becomes known, and it is not an
9 appropriate way to proceed, in my submission, to
10 isolate one part of events and to say it turns entirely
11 in relation to that.
12 Sir, I turn to the other aspect, which
13 Mr Tate's formulation is omitted, and that is the
14 publication of 027's name by the Tribunal. On 27th
15 April Mr Glasgow made a single reference to 027's name
16 in the course of an interlocutory hearing in the
17 Guildhall. It was late in the day; the public areas
18 were very sparsely populated. As matters stood, it
19 might well have passed largely unnoticed, save by the
20 lawyers.
21 At that stage, immediately after Mr Glasgow's
22 mention of the name, there was nothing to link the
23 person named to 027. Mr Clarke very helpfully and
24 responsibly then raised the matter in an attempt to
25 limit the damage. At that stage it would have been
1 possible for a most attentive listener who did not
2 already know 027's identity to link the name with 027.
3 It may well be that that was unavoidable if the matter
4 was to be raised in public.
5 The result was that 027's name was revealed
6 to the lawyers present and to a very limited number of
7 members of the public. But if Lord Gifford is correct,
8 most, if not all of them, would have known 027's
9 identity anyway.
10 There may have been press representatives
11 present, I do not know, but if there were they also
12 appear to have behaved in a most responsible way. So
13 far as we in this team are aware, the media did not
14 subsequently publish the name of 027, and you heard
15 Mr Bindman, his solicitor say that 027's name has not
16 been published in the press.
17 Sir, those were the circumstances in which
18 the Tribunal was asked to consider redacting the
19 transcript and not to place the unredacted transcript
20 on the Internet, at least for the time being.
21 Mr Clarke pointed out that the name could be removed,
22 either temporarily or permanently from the transcript
23 and that that was a matter which should be addressed
24 urgently.
25 He also pointed out that this was a matter
1 within the Tribunal's power. The Tribunal, as a matter
2 of administration, had power over the extent of
3 publication of its transcript and in particular whether
4 it should go out on the Internet.
5 At that point what Lord Saville observed,
6 well, the question comes down to the fact that since
7 this is a public hearing, whether what was said should
8 be given to a small section of the public or a large
9 section of the public. That, in our submission, is
10 precisely the point. Mr Clarke's reply was "since the
11 argument has been that the public has to be
12 distinguished between a small part of it and a large
13 part of it, I thought it right to draw it to your
14 attention."
15 So far as that third element is concerned,
16 I submit that Mr Glasgow by his act made 027's name
17 known to a small section of the public, most of whom,
18 according to Lord Gifford, were already aware of it.
19 The Tribunal by its act gave it wider publicity.
20 Turning to the question of law which
21 Mr Bindman raises, we would respectfully support
22 Mr Bindman's submission, the starting point should be
23 that the Inquiry has a duty to protect witnesses who
24 appear before it. It should not by its procedures do
25 anything which could create a serious possibility that
1 a witness might be exposed to a risk of attack or an
2 increased risk of attack in the absence of some
3 compelling justification.
4 In any case where the Tribunal is asked to
5 revoke the anonymity of a witness it should, in our
6 submission, apply this test: it should ask whether that
7 course could create a serious possibility that the
8 witness might be exposed to a risk or an increased risk
9 of attack. If the answer is that naming him could
10 create a serious possibility that he would be subjected
11 to that increased risk, then the Tribunal could not
12 lawfully name him in the absence of some compelling
13 justification.
14 The question which arises in the present
15 application is whether naming 027 could expose him to a
16 risk or an increased risk of attack, given the extent
17 to which his name may already be known in public.
18 Expressed in different terms: would it serve any
19 purpose to maintain anonymity?
20 Sir, you have of course referred on a number
21 of occasions in rulings and in the course of argument
22 to the concept of the public domain and on many
23 occasions the concept has been qualified in some way by
24 asking whether a name is clearly in the public domain
25 or so clearly in the public domain that it would be
1 pointless to maintain anonymity.
2 In our submission reference to the concept of
3 public domain may be unhelpful if it is suggested that
4 there is an absolute standard which is either met or
5 not. In our submission, it is necessary to ask: for
6 what purpose is something to be regarded in the public
7 domain? In performing the duty of protecting its
8 witnesses, we would suggest it is necessary --
9 LORD SAVILLE: Can I go back to the question
10 which you say arises? You say the question which
11 arises in the present application is whether naming 027
12 could expose him to a risk or an increased risk of
13 attack given the extent to which his name may already
14 be known in public expressed in different terms would
15 it serve any purpose to maintain anonymity?
16 What material, if any, do you suggest we have
17 to say that the answer to that question is "yes"?
18 MR LLOYD JONES: The Tribunal should
19 consider, sir, the extent to which the identity of 027
20 is known. It may, on one view of the evidence,
21 conclude that the name is so widely known that it will
22 no longer serve any purpose to require everybody to
23 continue to refer to him as 027.
24 LORD SAVILLE: Yes, what I was directing my
25 mind to is there does not seem to be anything in the
1 agreement that was made with 027 to suggest that the
2 revealing, or rather the repeated, revealing of his
3 name would add to the risk. Is there any other
4 material that suggests that might be the case?
5 MR LLOYD JONES: Sir, two matters arise
6 there. We have seen the redacted copy of the
7 agreement; we have also seen the ruling of the Tribunal
8 on, I think, 14th August this year. That ruling says:
9 "The fear of reprisals expressed by 027 was
10 genuine and reasonable".
11 What the Tribunal has not yet said was the
12 source of the risk to 027, so it is not a matter on
13 which we are able to make any useful submissions. But
14 in our submission, sir, the rationale behind all of
15 this is that by giving greater publicity to the
16 identity of a witness there is a danger that the risk
17 of some sort of attack against him is increased.
18 LORD SAVILLE: That is the very question I am
19 asking: is there any material to suggest that that
20 danger is increased?
21 MR LLOYD JONES: Sir, I am not in a position
22 to assist the Inquiry in relation to the facts of the
23 present case for the reasons I have explained.
24 LORD SAVILLE: I think the answer to my
25 question is, Mr Lloyd Jones, "I do not know".
1 MR LLOYD JONES: I am trying to explain to
2 you, sir, is that I am not able to make any submissions
3 in relation to the merits of the present case because
4 we do not know the extent to which Lord Gifford is
5 right in his original submissions.
6 LORD SAVILLE: I thought you had just made
7 precisely that submission: by giving greater publicity
8 to the identity of a witness there is a danger that the
9 risk of some sort of attack against him is increased.
10 If you are not making that submission, I apologise. If
11 you are making that submission, then my question
12 remains material: is there any material to suggest that
13 the danger is going to be increased if this
14 individual's name is repeated?
15 MR LLOYD JONES: My submission was intended
16 to operate at a more general level, that is why I
17 prefaced it with the words: "in any case where the
18 Tribunal is asked to revoke the anonymity of a
19 witness", and that was intended to qualify everything
20 which followed. I was suggesting the approach that
21 should be followed.
22 So far as the facts of this particular case
23 are concerned, we take no position for the reasons that
24 I have explained.
25 LORD SAVILLE: Yes, thank you.
1 MR LLOYD JONES: That, in fact, is my third
2 submission to you, sir. So far as the application of
3 the law to the facts is concerned, in deciding whether
4 the publication of a person's name would expose that
5 person to a risk or an increased risk of attack, it is
6 necessary to have regard of course to the source of the
7 threat and its precise nature. As I have explained we
8 have a difficulty in that regard at the moment because
9 the memorandum of 14th August this year does not
10 identify the source of the threat.
11 MR HOYT: Surely, as Mr Coyle points out, the
12 two potential sources of risk or increased risk are
13 from people who already know the name of 027; his
14 colleagues on the one hand and the people of this
15 community on the other hand?
16 MR LLOYD JONES: Sir, the Tribunal has formed
17 a view that there is a threat. We have not been told
18 by the Tribunal the source of that threat. It would be
19 inappropriate for me to speculate as to what the
20 Tribunal's thinking was. These are clearly matters
21 that will be very much in the minds of you and your
22 colleagues in considering the application, but it is
23 not a matter on which I can make any submission.
24 LORD SAVILLE: I think what you say is
25 perfectly correct, but the memorandum sought to explain
1 why the Tribunal was prepared to accept the agreement
2 because there certainly would be no question of the
3 Tribunal accepting the agreement had there not been the
4 threat which they identified. That does not really
5 take us very much further because we have the agreement
6 now and the question is indeed, I think, the one you
7 posed: would there be an increased risk of attack in
8 all the circumstances of this case were this
9 individual's name to be repeated?
10 I do not think we can really draw anything
11 from the memorandum which is a memorandum prepared in
12 relation to the agreement that has been made for the
13 safety of this man.
14 MR LLOYD JONES: Sir, I do not think there is
15 any ground between us or any disagreement between us.
16 I am not trying to draw anything from the memorandum,
17 I am simply trying to point out that the Tribunal has
18 concluded there is a threat. The Tribunal has not
19 identified the source of the threat; until it does I am
20 saying it would be inappropriate for me to speculate as
21 to what the source of that threat might be. So for
22 that additional reason I am unable to assist the
23 Tribunal in the evaluation of the particular matters
24 which go to the merits of Mr Bindman's specific
25 application in relation to 027.
1 The only matter I would add, sir, is this:
2 that if the Tribunal is left in any doubt as to the
3 utility of maintaining anonymity, in our submission it
4 should maintain anonymity. The Tribunal, in our
5 submission, is bound to have regard to the very grave
6 consequences which might follow should it be wrong.
7 Sir, those are our submissions.
8 LORD SAVILLE: Yes, thank you.
9 MR ELIAS: Sir, we have no direct application
10 in relation to 027. May I simply raise one matter,
11 which is this: we are concerned, as my learned friend,
12 Mr Lloyd Jones, has indicated, for the future that the
13 inadvertent use of a name should not in the Tribunal's
14 view bring that individual into the public domain by
15 that fact.
16 We submit that your ruling of October, which
17 did use the words "clearly in the public domain" --
18 Mr Clarke's reference to this hearing last week in
19 which he suggested that the matter was to debate
20 whether 027's identity was fully in the public domain
21 imports, and we submit ought to have been intended to
22 import, if you like, a sufficiency aspect to the
23 particular test: to what extent is the name in the
24 public domain? And if there is in the future to be the
25 use of a name inadvertently by counsel or someone else,
1 we submit that that does not and ought not
2 automatically, as it were, to bring that individual
3 into the public domain such that anonymity should not
4 thereafter be maintained.
5 As you have been reminded, and of course it
6 is a client of ours who was concerned, there has
7 already been -- I can give the Tribunal the reference:
8 Day 16 of this hearing -- reference to an individual by
9 details that might more readily identify him, and of
10 course those details were subsequently redacted from
11 the transcript and in doing that, we submit, there was
12 an acceptance that sufficiency or extent of publication
13 is and was a material factor, we submit it should be
14 and it must be, if fairness is to be maintained for the
15 future, when as is acceptable perhaps there is
16 inadvertent mention of a name.
17 LORD SAVILLE: Thank you very much. Does
18 anyone else want to say anything before I ask
19 Mr Bindman if he has anything to say by way of reply?
20 Mr Clarke.
21 Reply Submissions by MR CLARKE
22 MR CLARKE: I was not proposing to say
23 anything unless I heard my learned friends. I think
24 there are some things I ought to say; firstly, the
25 question or one of the questions is whether the name of
1 027 is in the public domain i.e. is the fact that --
2 this is an imaginary name -- John Smith is 027, is that
3 in the public domain. It is not simply a question of
4 whether the name John Smith is in the public domain, it
5 is the equation between an identified name and 027.
6 Secondly, reference has been made to the
7 decision of the Court of Appeal. That decision did not
8 address the question of names in the public domain for
9 the simple reason that the argument before the Court of
10 Appeal was about whether the identity of those who
11 fired shots on 30th January 1972 should be made public
12 or not, and the names of none of those who fired shots
13 on that date were then, or so far as I am aware, are
14 now within the public domain, hence the Court of
15 Appeal's judgment does not deal with the question of
16 public domain or what it may mean for present purposes.
17 The next matter I wanted to deal with, is
18 this: some reliance was made on the provisions of the
19 agreement, in particular paragraph 10 of the agreement,
20 which provides:
21 "That the parties to this agreement
22 acknowledge that it is for the Inquiry to determine
23 whether, during the course of its proceedings,
24 Soldier 027 will continue to be known as such or by any
25 other name."
1 That is the first paragraph, paragraph 10.
2 Those words mean what they say, namely to reserve, as
3 the parties acknowledge for this Inquiry, to decide
4 what will be the appellation of Soldier 027 during the
5 proceedings before this Inquiry. It says nothing and
6 was never intended to say anything about what name
7 Soldier 027 might or might not adopt outside the
8 confines of the Inquiry.
9 The second paragraph of paragraph 10 says:
10 "The Inquiry is free to make public the terms
11 of this financial agreement with the exception of any
12 details which may compromise Soldier 027's security."
13 I understood Mr Bindman to be suggesting that
14 that clause might in some way inhibit the Tribunal from
15 revealing the name of Soldier 027 upon the basis that
16 his name was part of the agreement.
17 If that is the suggestion, it is not, with
18 respect, well-founded. The provision is that, in
19 effect, turning it round there will not be revealed the
20 terms of this financial agreement if they may
21 compromise Soldier 027's security; Soldier 027's name
22 is not a term of the financial agreement.
23 The Tribunal may think that a relevant
24 question for present purposes is what is meant or what
25 should be meant by using the expression that somebody's
1 name is clearly in the public domain, which is the
2 expression that the Tribunal has so far used.
3 A number of tests might be suggested. A test
4 that suggests itself, at any rate to me, is whether
5 anyone of the public can readily find and lawfully
6 publish the name in question, and the submission that
7 has been made by others is that in the circumstances
8 which occurred at the hearing in April 1999, for
9 whatever reason and from whatever cause, the name in
10 question became one such as satisfied those
11 characteristics, and any other view on the facts of
12 this particular case would be a Canute-like approach.
13 MR TOOHEY: Just before you leave that point,
14 Mr Clarke, I have some concerns about the way in which
15 you had expressed, "whether any one of the public can
16 lawfully find and publish". Do you attach any degree
17 of effort or --
18 MR CLARKE: My note to myself said "can
19 readily find and lawfully publish".
20 LORD SAVILLE: That I think is what the
21 transcript has recorded.
22 MR CLARKE: So the "readily" was intended to
23 suggest some degree of ease and the "lawfully" to avoid
24 the person who deals with it.
25 MR TOOHEY: I think the transcript presently
1 might do you an injustice. Perhaps I have done you an
2 injustice.
3 MR CLARKE: Yes, I think you have.
4 MR TOOHEY: Well, I readily accept that.
5 LORD SAVILLE: What I have written on my
6 screen is "a number of tests that might be suggested":
7 "The test that suggests itself at any rate to
8 me is whether anyone of the public can readily find and
9 lawfully publish the name in question, and the
10 submission that has been made by others in the
11 circumstances which occurred in the hearing April 1999,
12 for whatever reason and for whatever cause the name in
13 question became one such as satisfied those
14 characteristics."
15 MR CLARKE: What may be a different test,
16 I am not sure, has been expressed by my learned friend,
17 Mr Lloyd Jones, which is in effect that you have to ask
18 whether continuing to name 027 would expose him to an
19 increased risk of attack, given the extent to which his
20 name is already in the public domain if and insofar as
21 it is.
22 I suppose a third test, which may be no more
23 than the converse of Mr Lloyd Jones' test would be to
24 ask whether the name is sufficiently well-known that
25 anonymity or continued anonymity, that is to say
1 continuing to refer to him by a cipher would effect no
2 substantial protection from any risk to which he may
3 realistically be subject; that may be nothing more than
4 a way of expressing the same thing.
5 There are nuances of distinction between
6 those tests in, I suspect, eight or possibly more cases
7 out of ten. They may amount to the same thing since,
8 if any member of the public can readily find and
9 lawfully publish the name in question, one might
10 perhaps in egregious circumstances suppose that
11 continuing to hide the name would afford no substantial
12 protection from any risk to which the person was
13 realistically subject.
14 I proffer those three tests without settling
15 on any one or more of them as the test that it may be
16 relevant to consider as candidness.
17 LORD SAVILLE: Yes, Mr Bindman.
18 Reply submissions by MR BINDMAN
19 MR BINDMAN: My Lord, I do not want to
20 repeat anything I have said already, but I would like
21 to adopt certainly the suggestion of Mr Lloyd Jones --
22 I think Mr Clarke has just listed three possible
23 tests -- the second and third seem to me to be the ones
24 I would argue for, particularly the second test
25 proposed by Mr Lloyd Jones, that the real issue here is
1 whether naming Soldier 027 would expose him to
2 increased risk of attack.
3 This is not really an issue which is
4 susceptible to evidence. My Lord, Lord Saville was
5 asking the question, what is the evidence that he would
6 be exposed to increased risk? In my submission it is a
7 matter of commonsense that the extremely limited
8 disclosure of his identity which has occurred up to now
9 and, I would adopt what Mr Lloyd Jones said, that part
10 of that seems to have been the result of the Tribunal's
11 own decision, which would be --
12 LORD SAVILLE: You say "commonsense",
13 Mr Bindman, but the Northern Ireland authorities who
14 are responsible for the agreement of 027 do not seem --
15 you can correct me if I am wrong -- to have considered
16 that, I was about to say further anonymity, but that is
17 not quite the right expression, have not considered
18 that the risk to 027 from the repeated revealing of his
19 identity is of any particular materiality.
20 MR BINDMAN: That is not actually the case,
21 my Lord. It is certainly true that no reference is
22 made to it in the agreement, but it is one of the
23 issues that has been agreed, that his name will be
24 changed.
25 Now there has been discussion as to when his
1 name should be changed, as I indicated before. It is a
2 matter of commonsense that a wider public being able to
3 hear the name, perhaps repeatedly, read the name in the
4 press --
5 LORD SAVILLE: Yes, I follow what you are
6 saying entirely, but the idea of changing his name
7 would appear to indicate that somebody at least thinks
8 that his present name is a danger to him.
9 MR BINDMAN: He wanted to change his name
10 because he fears that he can be identified and he can
11 be found if he uses his present name as a result --
12 LORD SAVILLE: On the position as it stands
13 at this moment?
14 MR BINDMAN: Absolutely, as a result of the
15 discussions that took place with the people who are --
16 LORD SAVILLE: But then on that basis he
17 fears at the moment that the fact he is called the name
18 he has gives rise to danger?
19 MR BINDMAN: That is right.
20 LORD SAVILLE: That repeats the question: if
21 that is so, what will the repeated revealing of his
22 name before this Tribunal add to that danger?
23 MR BINDMAN: I have tried to explain. There
24 is not evidence that one can simply produce, it has to
25 be based on an assessment of what the probabilities
1 are, and the probabilities are -- I come back to the
2 point -- it is a matter of commonsense that if a few
3 people know his name, the families perhaps, if finding
4 his name buried in the transcripts of the Tribunal is
5 the only way that an ordinary member of the public can
6 find it, it is much more likely that if his name
7 appears repeatedly in the press throughout the world
8 because it is uttered in this Tribunal, perhaps
9 repeatedly at hearings, that those who do not already
10 know his identity and have malicious intent towards him
11 will then learn it and those who do not have malicious
12 intent, but perhaps know where he is or know his family
13 or know how he can be found, will pass on that
14 information to those who have malicious intent.
15 In my submission, even though that additional
16 risk may appear to be quite small, it is the
17 consequences, if it turns out to be a real risk, are so
18 serious and the balancing, which I submit, has to be
19 undertaken -- I think some other counsel have suggested
20 something similar -- that there are issues of degree
21 and balance here, that that physical risk, that risk to
22 his security whatever the extent of it, must outweigh
23 any possible gain or benefit by allowing his name to be
24 revealed.
25 It seems to me the only argument that can be
1 used for not granting future anonymity, or whatever
2 formula one wishes to use, is that it can be
3 established with certainty at this stage that there is
4 no possible increased risk because everybody who could
5 possibly have any information which would lead to his
6 whereabouts or have any malicious intent towards him
7 already knows it.
8 I submit that there is no evidence of that
9 fact before the Tribunal. If one is looking at
10 the burden of proof, as it were, or whether it is
11 necessary to improve an absence of any greater risk in
12 order to justify anonymity or the other way round, that
13 anonymity should be granted because there is a possible
14 uncertain, unknowable risk, then the latter is the
15 approach that the Tribunal should adopt.
16 LORD SAVILLE: I follow that, but I come back
17 to the agreement, the agreement as I understand it that
18 was designed to provide the security which those
19 responsible for security considered necessary for the
20 safety of your client --
21 MR BINDMAN: But agreement includes a change
22 of name. It may not be spelled out because the --
23 LORD SAVILLE: The point I was making was
24 that there does not seem to be any suggestion in the
25 agreement -- I am certainly not aware of any -- that
1 the agreement would be incomplete if 027's name was
2 repeated in the proceedings before the Tribunal.
3 MR BINDMAN: If I may -- no, it was not an
4 issue that arose. I can give my own evidence, as it
5 were, about that because I was closely involved in the
6 negotiations that led to this agreement. The issue of
7 change of name was widely discussed; it was not
8 included in this agreement.
9 LORD SAVILLE: No, but could it not be said
10 that this agreement does provide at least some evidence
11 that its provisions were regarded by those responsible
12 for security as providing reasonably adequate security
13 for your client?
14 MR BINDMAN: No, no, it would be quite wrong
15 to draw any inference of that kind. The agreement is
16 entirely neutral as to what other steps might have been
17 required.
18 What happens, as a matter of process, is that
19 in relation to the signing of this agreement my client
20 was put in touch with certain security officials who
21 have been made responsible for advising him on a
22 regular basis as to his security and agreeing with him
23 any decisions that have to be made about changing name,
24 whereabouts, a whole range of issues. They are not
25 included in this agreement, which is essentially a
1 framework agreement.
2 I do not really need to say any more except
3 to stress that my client himself feels very strongly
4 that wide publication of his name would significantly
5 increase the risk to his security. There is a
6 subjective element here as well; he is a witness before
7 this Tribunal; he is entitled to look to the Tribunal
8 for such protection as the Tribunal can give him; and
9 I submit that if the Tribunal requires his name to be
10 disclosed publicly it will be doing him a disservice
11 and it will be failing in its duty to give the
12 protection to a witness and make paramount the security
13 and safety of the witness which the Court of Appeal
14 said was in fact the paramount factor.
15 That is all I have to say.
16 LORD SAVILLE: Thank you, Mr Bindman, very
17 much indeed.
18 We will consider our ruling on this matter
19 and I can repeat, Mr Bindman -- this is not in any
20 sense an indication of what we are going to decide --
21 if we decide against you, we would give you an
22 opportunity to challenge that ruling as you have
23 requested. I repeat, that is not an indication that we
24 have formed any view at the moment.
25 MR BINDMAN: I draw no inference from it
1 whatsoever.
2 LORD SAVILLE: 9.30 tomorrow morning
3 (5.00 pm)
4 (Proceedings adjourned until Wednesday, 22nd November
5 2000 at 9.30 am)
6 Opening Submission by MR FINNEGAN................... 21
7 Opening Submissions by MR TREACY.................... 46
8 Opening Submissions by MR McCARTNEY................ 110
9 Opening Submissions by MS QUINLIVAN................ 126
10 Opening Submissions by MR C HARVEY................. 152
11 Submissions by MR CLARKE........................... 164
12 Submissions by MR BINDMAN.......................... 166
13 Submissions by LORD GIFFORD........................ 189
14 Submissions by MR COYLE............................ 192
15 Submissions by MR LLOYD JONES...................... 194
16 Reply Submissions by MR CLARKE..................... 211
17 Reply submissions by MR BINDMAN.................... 216