1 Wednesday, 1st May 2002
2 (10.35 a.m)
3 Questioned by MR CLARKE
4 LORD SAVILLE: Mr Caldecott, it does seem that you and your
5 clients have done an immense amount of work overnight
6 for which we are extremely grateful. Now we have
7 Mr Clarke with us we can take the matter further
8 forward.
9 MR CLARKE: Yes.
10 Could we have on the screen M25.45? What I am going
11 to do, if I may, is go through the material you have
12 very kindly provided. This document relates to Soldier
13 A. Can you tell us what it is a note of? This is
14 a telephone conversation or an interview, or something
15 else?
16 A. It is based on an interview.
17 Q. As I understand it, it reads:
18 "Wall on right -- 2/3 houses on right. Building was
19 downhill. 2nd building downhill on right. All
20 identical. In window -- no glass."
21 What is that a description of?
22 A. I think he is trying to identify the house where the
23 sniper was.
24 Q. Is the sense of what you were being told that it was the
25 second out of three houses on the right, downhill from
1 where he was, or is it something else?
2 A. I am not sure. He might have been saying it was either
3 the second or the third house on the right.
4 Q. But is it on the right from where he was or on the right
5 from some other perspective?
6 A. I just do not know that, I mean, I would presume he was
7 talking about describing the place we took him to.
8 Q. Is this a note that you think was made before you took
9 him to that place?
10 A. I think the note was probably made afterwards.
11 Q. I wonder if we could have on the screen P223. I know
12 you were shown a lot of photographs yesterday and it may
13 be this is a wasted exercise, but can we highlight the
14 bottom right-hand corner?
15 This is the double bastion at the far right-hand
16 side of the walls as you look at them. The ground does
17 obviously slope down and we were looking yesterday at
18 this group of houses, which are there. There is
19 a street here, Long Tower Street, which goes down there
20 and then down there, and then what I am pointing out in
21 green is Howard street.
22 There was evidence before Lord Widgery -- Mr Glasgow
23 referred to it yesterday -- of snipers at some stage
24 having fired from buildings either side of this street,
25 from approximately there and there; the houses may not
1 be exact.
2 Does looking at that photograph and this note help
3 any further as to where the house or houses were that he
4 was talking about?
5 A. I would speculate that it was the group of houses where
6 the red arrow was pointing.
7 Q. Is it this group of houses?
8 A. No, further down the hill. No, further down.
9 Q. Further down? Do you mean --
10 A. This one, yes.
11 Q. That is to say, the houses immediately to the south of
12 the double bastion?
13 LORD SAVILLE: No, immediately to the west, I think.
14 MR CLARKE: Immediately to the west of the double bastion,
15 yes, the house that you were identifying yesterday which
16 has a view out towards the Bogside.
17 Can we come, please, to M25.46? This is a note with
18 a diagram in it. Would I be right to assume that that
19 is Rossville Street with the wasteground on the right of
20 it as you look at the diagram?
21 A. Rossville Street is the street that goes down to the
22 Bogside?
23 Q. Yes.
24 A. I think this was a sketch where the soldier was trying
25 to show us where he was situated and I think the X --
1 the two X's on the left-hand side are on the extreme
2 left of Rossville Street.
3 Q. When you say "on the extreme left", do you mean that,
4 those two or --
5 A. No, there are two very small X's on the left-hand side.
6 LORD SAVILLE: On the left-hand side of the drawing?
7 A. On Rossville Street.
8 MR CLARKE: Those two actually on Rossville Street itself?
9 A. Yes.
10 Q. This all relates to Soldier A, does it?
11 A. Yes. I think this is a very -- it is not very reliable.
12 Q. I had thought Soldier A was on the walls?
13 A. Well, I think what he is doing -- I do not know the
14 names of the streets, but I think what he was doing was
15 showing where people -- he said there is wasteground
16 below the walls close to the derelict houses.
17 Q. Is it possible that this is not in fact Rossville Street
18 but is the walls themselves?
19 A. I think that is a sketch of the walls because it is
20 showing derelict houses and wasteground, but I think
21 this is probably not very reliable because he was trying
22 to work out where he was.
23 LORD SAVILLE: I am not sure I do at the moment. We see,
24 if we look at the bottom of this drawing, Ms Ferguson,
25 the bottom of the drawing could represent the walls and
1 the ground below the walls.
2 A. That is what I think --
3 LORD SAVILLE: That is what you think, but the vertical two
4 lines with the two crosses in it on the left, do you
5 still think that may have been what you gather was his
6 representation of Rossville Street still or some other
7 street?
8 A. I do not know if it is -- Rossville Street is the name
9 of the street, I think he was letting us know that he
10 was -- the derelict house they were in was quite close
11 to a street going down into the Bogside.
12 LORD SAVILLE: Yes, I see. But then, as Mr Clarke pointed
13 out, there are three little crosses on the right-hand
14 side of this drawing; are you able to help on those at
15 all?
16 A. I do not know what that is, no, no idea. I mean,
17 I think what he possibly wanted to do was avoid actually
18 going to this area, so he was trying to remember and
19 I think we probably all then decided, you know, we
20 needed to go just to be sure.
21 LORD SAVILLE: Was this his drawing or yours?
22 A. It is his drawing.
23 Q. Do we get in your writing "in first 10/15 mins"?
24 A. That is right, yes.
25 Q. And "soldiers not as far up as them"; can you tell us
1 what that signifies?
2 A. I think what he is saying is in the first 10 or 15
3 minutes he is possibly indicating that the sniper's
4 firing happened in the earlier part of all that
5 activity.
6 Q. The words "soldiers not as far up as them"?
7 A. I am afraid I do not know what that means.
8 Q. Might it mean that the position where he was was up high
9 on the walls and the soldiers who were in the Bogside
10 were not up there, or is that a strange construction?
11 A. It is possible, I just do not remember.
12 Q. "Convinced that IRA shot first"; that is his words, is
13 it?
14 A. That is his opinion, yes.
15 Q. Do you know whether that relates to shooting at the Army
16 sniper or something else?
17 A. I do not know.
18 Q. At the bottom has something been redacted between
19 "convinced that IRA shot first" and what appears at the
20 bottom at "NB"?
21 A. Yes.
22 Q. It says:
23 "NB believes happened quite early on -- their
24 firing"; do you know who "their" refers to?
25 A. I would presume that means the Royal Anglian firing from
1 the sniper.
2 Q. Can we go over the page to M25.47, and can you tell me
3 what the first line reads?
4 A. Said "either", I am not sure what the next word is,
5 "[something] fire or shooting". It is possibly "open
6 fire", I do not know.
7 Q. Is the next "F" for the usual obscenity, "... hell 2 out
8 of 3"?
9 A. "Fucking hell, 2 out of 3".
10 Q. "Few minutes later then 2 more rounds"; is that
11 referring to the sniper having fired two more rounds
12 after the first three?
13 A. That is right.
14 Q. Then: "From his Platoon -- only shots fired".
15 A. I think that means from his Platoon they were the only
16 shots fired.
17 Q. "3 platoons to accompany"; is that what it says?
18 A. Yes.
19 Q. You produced to us some notes which we went through
20 yesterday about what Soldier A had to say and you have
21 produced these additional three pages; is that the
22 totality of the notes that you have that relate to
23 Soldier A?
24 A. Yes.
25 Q. It looks, does it not, as if there is not anything in
1 the notes that links the shots that A was talking about
2 as having been fired by the sniper with any spot where
3 people fell, or where three people fell at, or near
4 a barricade?
5 A. That is right.
6 Q. Can we come, please, to M25.48; that is "Notebook 2,
7 various compilation"?
8 A. Yes.
9 Q. M25.49 is what you have produced from that.
10 Can you help us as to what this is? It is obviously
11 notes of something that appears either on video or
12 audio?
13 A. It looks like a running order of the story we did in
14 which three soldiers -- we used actors' voices to cover
15 the words of three soldiers. It was possibly a note for
16 a producer as to what the actors were going to say.
17 Q. A note as to what they were going to say or what they
18 did say? We have timings on the left, which look as
19 though they come from an actual video.
20 A. I mean, they are the time codes of the clips on the
21 tapes and they were called Soldiers 1, 2 and 3, so we
22 would get the actors to play the correct sound bites for
23 each soldier.
24 Q. This is a written record of something that has already
25 been recorded?
1 A. Yes.
2 Q. You have 22nd Light Air Defence; is that a reference
3 to --
4 A. That is how we described Soldier C.
5 Q. "Said firing from the hip". "4.37", can you tell me
6 what that says?
7 A. Again, I think I have taken the words at the beginning
8 of the clip and at the end for somebody's guidance, he
9 is saying it is not accurate -- he is talking about
10 shooting from the hip, it is "not accurate -- up, down,
11 left or right -- unprofessional -- not a battle ground".
12 Q. "5.25 -- close to a building -- under cover"?
13 A. He is talking about if you come under fire, you get in
14 close to a building, get under cover.
15 Q. The next sentence, "paras on arresting people"?
16 A. Paras went on arresting people, I presume went on
17 arresting people.
18 Q. What is the next --
19 A. "Do not stay in open -- if you are being fired at".
20 Q. "5.58 2 ...", what are the next words?
21 A. I am not quite sure, "... 2 (said there was firing)".
22 Q. Do you know what that means?
23 A. No.
24 Q. "Military and police side -- very disorganised -- did
25 nothing"; does that mean that the speaker did nothing or
1 something else?
2 A. I do not know. Again, I mean it sounds to me like he is
3 talking about the police.
4 Q. Number 2, who is number 2?
5 A. It would be the second soldier in that report, who
6 I think was probably Soldier E.
7 Q. Can you tell us what the next words are?
8 A. "The regiment has nothing to be ashamed of -- some
9 individuals cannot be accountable for -- somebody did
10 overreact, beyond the line".
11 Q. "3" is presumably --
12 A. Soldier D.
13 Q. Soldier D. This is the bit about "will resign English
14 citizenship"?
15 A. Yes.
16 Q. "51 Paras died"?
17 A. I think it was "the memory of 51 Paras".
18 Q. "Died ...", what is the squiggle?
19 A. It might be "appalling".
20 LORD SAVILLE: "Upholding".
21 A. Sorry, "... upholding law and order".
22 MR CLARKE: 51, what goes on?
23 A. "Government is to get" something. I think the sense of
24 it is: he will renounce his citizenship, he does not
25 want to be British. I think he is probably talking
1 about the apology.
2 Q. "1", who is he?
3 A. I think, again, that is Soldier C, who said "a big wrong
4 done". I think that is:
5 "Truth out. Good come out. If one side wrong --
6 things could be more open. Could be agreement."
7 Q. Would I be right to infer that there must, in the light
8 of this note, be or have been a video which has on it
9 what various actors were saying taking the parts of C
10 and E?
11 A. I think that is probably the transmitted report from
12 Channel 4 News.
13 Q. You think this is the actual --
14 A. I think that is a running order piecing together what
15 the actor said. They might have been recorded -- these
16 particular clips might have been recorded by three
17 actors onto a tape.
18 Q. Is this, do you think, an outtake of what was actually
19 broadcast or is this something that was prepared before
20 the broadcast from which clips were taken to form part
21 of the broadcast?
22 A. I think this is a tape of three actors with the selected
23 clips of the soldiers, which then would be used to put
24 together the broadcast.
25 Q. It is something that predates the broadcast and,
1 presumably, contains more in it than was in fact
2 broadcast?
3 A. I do not think it does. I think we selected the clips
4 and then just gave the clips we had decided to use to
5 the actors.
6 LORD GIFFORD: Mr Clarke, my reading of pages X1.6.36 to
7 X1.6.39 is that you will find exactly the same
8 references on the broadcast transcript, as we have just
9 been going through, if that is helpful.
10 LORD SAVILLE: I think it is helpful, yes.
11 MR CLARKE: I am grateful to my learned friend.
12 Can we come, please, to M25.50? This brings us to
13 Soldier C, or what remains to be disclosed of Soldier C.
14 Can we turn the page to M25.51? We have seen a part of
15 this before. What we saw before at M25.27 took us down
16 to the words "think tonight", but then what has been
17 produced additionally on this document are the words:
18 "Elevated in the air -- did not fire a round --
19 fired ...", what is the next word?
20 A. I am not sure what that word is.
21 Q. There seems potentially a contradiction between "did not
22 fire a round" and "fired", whatever the word is,
23 "Embassy building"; can you tell us what the sense of
24 this is?
25 A. I am sorry, when we looked at the notes last night
1 I could not really work this out either.
2 Q. And nothing has changed this morning?
3 A. No.
4 Q. Do we now have, subject to the redaction we can see on
5 the page, the totality of your notes in relation to
6 Soldier C?
7 A. As far as I know, yes.
8 Q. May we come, please, to M25.52? We have your notes in
9 relation to Soldier E. Are there any additional
10 notes -- we have somehow got out of order. Could we go
11 to M25.57? This is soldier D, which is in notebook 5.
12 Could we go to M25.58 and rotate that, please?
13 I can see your notes read:
14 "Came under fire as coming up Chamberlain Street --
15 coming straight at them", then there is a triple
16 question mark against "Chamberlain Street"?
17 A. I think that is the soldier would not have known the
18 name of the street.
19 Q. Did he give you the name and you questioned whether he
20 actually knew the place he was talking about?
21 A. I think I probably showed him a map and got him to
22 describe what happened, where he went to. He would not
23 have known the name of the street, so the question mark
24 to get it checked.
25 Q. But if you showed him a map is the place that he
1 described himself coming up in fact Chamberlain Street?
2 A. I just cannot be sure about that, I do not know.
3 Q. "Coming straight at them," does that mean the fire was
4 coming straight at them?
5 A. That is right.
6 Q. "Single shots -- auto fire"?
7 A. "Auto fire".
8 Q. Can you tell us the sense of that?
9 A. I think he is making the point that there was a lot of
10 firing.
11 Q. In one sense single shots and automatic fire are
12 opposites?
13 A. Yes, I think he is saying there were both single shots
14 and automatic fire coming their way.
15 Q. Then "Support Company -- began returning fire.
16 C Company there first"; is that the sense?
17 A. Yes.
18 Q. "Some --"
19 A. "Some C Company hit acid bombs".
20 Q. Over the page, "Support Company, A, C, D and Support and
21 HQ -- the companies"; that means, does it not, that
22 A Company, C Company and D Company of the 1st Battalion
23 were the relevant companies?
24 A. That is right.
25 Q. Together with Support and HQ Company?
1 A. Yes.
2 Q. "Most after training -- Rifle Co ...", what is the next
3 word?
4 A. "Rifle Company -- mortars/machine-gun -- older, more
5 mature", I do not know what that means.
6 Q. May it mean that those who were members of the Mortar
7 Platoon and the Machine-gun Platoon were older men and
8 more mature?
9 A. It is possible.
10 Q. "Support Company -- older -- C Company drove back ...",
11 is that?
12 A. "C Company drove back, others all stayed".
13 Q. Do you know what that means?
14 A. I am afraid I do not.
15 Q. "No statements made"; does that mean no statements made
16 by C Company, do you suppose?
17 A. The impression I got was that C Company did not make
18 statements and were not called to the Widgery Tribunal.
19 Q. The next entry is, "C Company not called to Widgery.
20 Ford ..."
21 A. "Ford in a flap."
22 Q. Could you read out the next two lines, "paras ..."
23 A. "Paras there to sort people out. Different from the
24 Royal Anglians. Small number of IRA began firing --
25 could hear different weapons being fired. From riot
1 mode to ..."
2 Q. Is it something "battle"?
3 A. It looks like "[something] battle mode".
4 Q. Can we go back to the previous page and rotate it? Look
5 on the right-hand side, which is the second page that
6 has been copied; do you know what --
7 A. Something "firing was a [something] of weapons".
8 Q. What is the word underneath a hat, as it were?
9 A. The word in the box is "majority", "types of weapons",
10 I am just not sure what that was. He is probably making
11 the same point again that there was a lot of firing.
12 Q. "From the flats", is that what it next says?
13 A. That is right, yes.
14 Q. Does that mean he was saying there was firing from the
15 flats, or something else?
16 A. I think so, yes.
17 Q. "Pinned down. C Company did not fire a shot. Support
18 Company in Pigs".
19 A. "C Company over barricades".
20 Q. Is this somebody in C Company?
21 A. Again, I would need to check that from the original
22 notes.
23 Q. M25.60, "escorts and ..."
24 A. "Drivers were cooks --"
25 Q. "Cooks, not essential personnel", right.
1 Could we go back to M25.52? This is your notebook 4
2 in relation to Soldier E. Could we come to M25.53?
3 Your note reads:
4 "Shots. Not from SLR. Distinction in weapons.
5 Totally convinced of incoming fire -- could be from
6 a height ...", is the next word "examined it"?
7 A. "Examined it", yeah.
8 Q. "Were others firing. IRA firing at the beginning"; so
9 that is all E's account of what was happening, is that
10 right?
11 A. Yes.
12 Q. The next page, please, M25.54:
13 "Company net and battalion net. Two shots ...",
14 what is the next word?
15 A. "Two shots at the ambulance pig".
16 Q. "Like Pig ..."
17 A. "Like Pig but with red cross.
18 "1) Coming towards us.
19 "2) Different types of shots".
20 Q. Does it then say, "difference between SLR"?
21 A. That is right.
22 Q. Is the sense of that that he was saying: I can tell you
23 why people other than the Army were shooting, firstly,
24 because the shots were coming towards us, and secondly
25 because they are a different type of shots and you can
1 tell the difference between an SLR shot and another
2 shot?
3 A. I think so, yes.
4 Q. Then "saw man ..."?
5 A. "Saw man with something in his hand".
6 Q. And then what is on the left-hand side, is it "B"?
7 A. It seems to be a "B".
8 Q. There then appears on what we have on the screen the
9 letter "H"; do not tell me the name, but is it right
10 that in the original of your notes there is a name and
11 the "H" has been put there by the Inquiry staff so as to
12 preserve the anonymity of the name?
13 A. That is right.
14 Q. It continues in your writing, "the nutcase -- considered
15 a lunatic", and then there is a reference to someone
16 called "Callan -- Greek Cypriot -- was not there on
17 Bloody Sunday, was not liked -- a bully in fights"?
18 A. That is right.
19 Q. We have heard something of that name before, but can you
20 tell us, if you know, why he was mentioning this man
21 when telling you about the events of Bloody Sunday if he
22 was not there on Bloody Sunday?
23 A. Sorry, I think it was -- I mean, a lot of the soldiers
24 would talk in general terms about other soldiers and
25 especially if they held the view that the regiment, as
1 a whole, had nothing to be ashamed of, but a few people
2 behaved badly.
3 I think he is talking about those people because
4 they were the people he remembered, regardless of
5 whether they were there or not, and also I would
6 encourage the soldiers to talk about people like that as
7 a way of cross-referencing what they said and what
8 others said.
9 Q. Then there is a drawing, which we can see on the
10 right-hand side of the screen; is that your drawing or
11 his?
12 A. That is mine.
13 Q. It appears to show what is marked as Rossville Street
14 and William Street, and the flats and Glenfada Park.
15 Can you tell us, if you remember, what the arrow that
16 goes to the right of the drawing behind the flats is?
17 A. I am sorry, I cannot remember what that particular arrow
18 is. I think the point of the drawing is he was trying
19 to show where the ambulance was when it was hit, or the
20 vehicle.
21 Q. There is a rectangle in Rossville Street, which has what
22 might be an "A" underneath it, but I do not know whether
23 it is; is that intended to be the ambulance vehicle or
24 is it something different?
25 A. No, I think the ambulance vehicle is further down. It
1 has little wheels on.
2 Q. This one?
3 A. This one, yes.
4 Q. The vehicle with little wheels on it, there is an arrow
5 the tip of which is on the vehicle and the beginning of
6 the shaft of which is against the "F" of "Flats"; can
7 you tell us what that signifies?
8 A. I am sorry, I just cannot remember.
9 Q. Then, in the ambulance vehicle there is what looks
10 rather like a tadpole tailing away to the south; do you
11 know what that is?
12 A. No.
13 Q. Lastly, there are two arrows on the right pointing
14 towards Rossville Street; do you know what those
15 signify?
16 A. I do not know, I mean, he possibly was just trying to
17 demonstrate the movement of soldiers.
18 Q. Can we have a look at the next page, M25.55? You have
19 written what I take to be:
20 "Possible shots were friendly"; what is the next --
21 A. "It is possible ..."
22 Q. "Possible -- but different sounds -- why our way --
23 possibly shot and misjudged target -- different sound";
24 can you tell us the sense of what he was saying that you
25 recorded?
1 A. I think what he actually says, that word is probably
2 "poor shot and misjudged target". I think I had put to
3 him the possibility that we had looked at in our first
4 report that firing had come from the walls from
5 a different regiment and he is saying it is possible,
6 but the sound of the firing would have been different.
7 Q. Would have been different if what?
8 A. Would have been a different sound from guns from the IRA
9 and then he is asking: but why would it have come our
10 way unless there was a poor shot, somebody misjudged
11 their target.
12 Q. I want to make sure I am clear about this: is,
13 effectively, what he was saying, it is possible that
14 shots he heard were friendly shots, that is to say the
15 Army, but if that was so, they would have sounded
16 different?
17 A. That is right.
18 Q. Why would they have come our way anyway?
19 A. Yes.
20 Q. "Briefing"; is that your note to him asking what
21 briefing --
22 A. I presume that is my question, yes.
23 Q. There is a direct quote, is there, "'our role ...'"
24 A. "'Our role was to intercept, take out troublemakers --
25 we worked in pairs. 1 baton. [One, I presume, had a
1 baton.] Task to snatch squads -- take out
2 troublemakers -- stone-throwers."
3 Q. "No C Company fired"; is that?
4 A. It seems to be, yes.
5 Q. "Close to ..."
6 A. "Close to soldiers firing".
7 Q. Does that mean he was close to soldiers firing?
8 A. I am not sure if it does.
9 Q. Then you asked him, did you, was this a suitable role?
10 A. I think I probably asked him did he consider it
11 a suitable role for the paratroopers.
12 Q. What is the answer that is recorded?
13 A. I think he says:
14 "It had been done, done for a long time, a similar
15 role with no problems, train for a different role,
16 adaptable. Proved -- helped other units."
17 Q. The words "in here" have been written; do you know what
18 that means?
19 A. I think that is me reviewing the notes, suggesting that
20 I would use the clip beginning there.
21 Q. "25 years to think ..."
22 A. "I have had 25 years to think"; I think he is suggesting
23 something wrong was done or asking was something wrong
24 done.
25 Q. The next words "not wrong ..."?
1 A. I am not sure what that is.
2 Q. Then:
3 "I do not believe it went wrong from a soldier's
4 point of view -- from a political and policing point of
5 view. The march was illegal."
6 Does that mean no-go area for two years?
7 A. Yes.
8 Q. "Terrorists spotted doing evening patrols. March
9 underestimated. Troublemakers there ..."; what is the
10 next word?
11 A. "Underestimated".
12 Q. "... underestimated by police and military."
13 Over the page "not briefed -- brief to snatch
14 squads, not sent in to shoot armed gunmen".
15 Is the sense of "not briefed" that he meant he was
16 not briefed that he should shoot armed gunmen?
17 A. That is the impression I get, yes.
18 Q. "Not warned"; is that what it says?
19 A. I think so.
20 Q. Can you remember what he was saying he was not warned
21 about?
22 A. I would speculate that he was not warned to expect armed
23 gunmen.
24 Q. "March almost over, feel of event passed off. In as
25 last resort to quell violence"; presumably that is him
1 saying they went into the Bogside as a last resort to
2 quell violence, is it?
3 A. That is what it sounds like, yes.
4 Q. His perspective, "I believe ,.." what are the next
5 words?
6 A. "I believe the whole situation was underestimated by
7 police and authorities. March larger than expected,
8 violence at the end to die down. Police not ready for
9 amount of violence. No communication system to
10 organise."
11 Q. "Very disorganised on military and police side as to who
12 was shooting and where the targets were, who were being
13 shot. Why confusion ..."?
14 A. It is possibly "arises".
15 Q. "Know gunmen were there", then what are the next words?
16 A. Was he ashamed of the regiment, was the regiment
17 ashamed? He says:
18 "Not at all. Individuals we cannot be accountable
19 for who did overreact and did go beyond the line. As a
20 regiment as a whole, no we have not because we have been
21 in Northern Ireland for a long time -- glowing
22 reputation with RUC and other regiments, also Catholic
23 and loyalist communities, we were well disciplined and
24 organised force."
25 Q. Is that the totality of the notes about E that you have?
1 A. Yes, as far as I know.
2 Q. Can we come to M25.61? These are the unredacted notes
3 in relation to Soldier B. Can we turn to the next page,
4 M25.62? Is this a note of an interview or of
5 a telephone conversation?
6 A. I think that is probably my first meeting with him, but
7 I am not entirely sure.
8 Q. By "meeting" you mean a face-to-face meeting rather than
9 a telephone conversation?
10 A. Yes.
11 Q. It says "happy to do interview. Strange many know what
12 went on"; can you tell us the sense of that?
13 A. I cannot really, no.
14 Q. Is it "much tucked under the carpet"?
15 A. That is right.
16 Q. "Not come out. Some aspects ..."
17 A. "Some aspects have not been said at any time".
18 Q. "In a quandary, loyalties to the regiment. Out of the
19 Army a long time. NB tinkering with evidence ...", what
20 are the next words?
21 A. "How Widgery was done"; I think he is making the point
22 there that he found it very difficult to talk about it.
23 He was in a quandary as to whether to meet me because it
24 took quite a few weeks before he would agree to
25 a meeting.
1 Q. What was the sense of what he was saying about
2 "tinkering with evidence", "how Widgery was done"?
3 A. I think he probably goes on to explain that later. He
4 said he gave a statement to Widgery, but he was not
5 called in.
6 Q. "Very selective" appears before that. Then: "some were
7 exempt -- who did fire"?
8 A. That sounds like he is saying some people who fired were
9 exempt from giving statements to Widgery, but I cannot
10 be sure.
11 Q. Then: "Some...", what is the next word?
12 A. "Some have their own ammunition".
13 Q. "Not ..."
14 A. "Not standard policy, but they did".
15 Q. "Some fired rounds ...", what is the next word?
16 A. "Their own stock not called at all".
17 Q. The sense of what he is saying, there were some people
18 who fired rounds from their own stock --
19 A. Yes, they had their own supply of ammunition.
20 Q. "Chaotic et cetera"; what are the next --
21 A. "Group of macho men -- sadistic. Full of glee.
22 Enjoying what they were doing".
23 Q. The next page, what is the first word?
24 A. "Running ...".
25 Q. "... into Glenfada Park. Full of glee"; is the next
1 sentence "I know of 9 who were responsible"?
2 A. That is right.
3 Q. "Most shot by them". The next line, "other ..."
4 A. "Other weird and wonderful aspects. Being briefed by
5 officers. Feeling of going there to do some
6 arse-kicking, 'going to kill some people'. At the time
7 it was nothing shocking", and then he quotes, "'go
8 a bit ape'".
9 Q. But what are these quotes of, "going to kill some
10 people"; do you know what that was supposed to be
11 a quote of?
12 A. I am not sure if he is actually talking about comments
13 the soldiers made during the briefing or this was the
14 sense of what they understood they were told at the
15 briefing.
16 Q. "Colonel Derek Wilford. Very loyal, defended his
17 troops. His duty and role after the shooting."
18 Presumably, that means he regarded it as his duty
19 and role to defend his troops and be loyal to them after
20 the shooting, is that the sense of it?
21 A. I am not sure what that was, presumably he was saying he
22 was impressed with Derek Wilford and he was loyal.
23 Q. Then, "2 hung round together"; you put in brackets "(F
24 and G?) Prime movers".
25 That F and G are your writing, not something the
1 Tribunal staff have done, is that right?
2 A. That is right.
3 Q. You put a question mark; can you tell us the sense of
4 these two lines and why you put a question mark and in
5 brackets?
6 A. He had talked about two soldiers who he had regarded as
7 the main troublemakers. I do not think he actually gave
8 letters, but based on my own reading of the
9 Widgery Tribunal I might have suggested these two people
10 to him. I mean, the reason there is a question mark is
11 for me to know to check it, that it is not necessarily
12 the right people.
13 Q. The message from him is that, as you put, 2 prime movers
14 were two people who hung around together, and you raised
15 the possibility it was F and G?
16 A. I had a conversation to try and work out who they might
17 be.
18 Q. Was he able to confirm whether it was F and G?
19 A. I cannot remember that. I sort of feel I should be very
20 careful about that because I might have given them
21 letters and they might not have been reliable.
22 Certainly he was making a point about two people.
23 Q. "Colonel said we would get them into the SAS. More
24 trouble than it was worth"; does that mean more trouble
25 having them in the regiment than it was worth or
1 something --
2 A. Yes, I think this is something Derek Wilford is meant to
3 have said after the shooting.
4 Q. Can you tell us what the next paragraph reads?
5 A. "Told that violence was high"; again, I think he is
6 talking about the atmosphere in advance, possibly the
7 briefing, or just possibly the conversation on the way:
8 "Told that violence was high. People were taking
9 the piss. 'Red rag' ra-ra gung-ho military outfit. Had
10 been a build-up".
11 Again, I suspect he is talking about "red rag" being
12 the constant rioting.
13 Q. But that was like red rag to a bull?
14 A. I think so, but I am not entirely sure about that.
15 Q. "Paras -- going in and asserting themselves ...", what
16 are the next words?
17 A. "That is their thing".
18 Q. Over the page, "officer said 'we want some kills
19 tomorrow'. Taken to heart -- heard by those who did
20 most of the --"
21 A. Again, I presume he goes on to say "most of the
22 shooting".
23 Q. What is the next line, "waiting ..."
24 A. "Waiting for an order".
25 Q. "They never did the normal thing of waiting to be ..."?
1 A. Again, I presume that is waiting to be given an order.
2 Q. "There were more senior officers, you did not see them
3 there", and he mentions Ford and Tugwell?
4 "Complete bunch of ...", something in shorthand; do
5 you know what that says?
6 A. Sorry, I cannot just work it out.
7 Q. "Round the corner of world's press", you have written
8 "not the slightest -- no hint of drugs"; had you asked
9 him whether there was any indication that people were
10 taking drugs and he said "not the slightest"?
11 A. I just cannot remember that exchange, no.
12 Q. "Nobody to fire at. No-one had any weapons", what is
13 the next line?
14 A. "They were shot because they could be".
15 Q. "Had a radio"; does that mean he had a radio?
16 A. That is right.
17 Q. "Company Commander began shouting ..."
18 A. "To".
19 Q. Something is tantalisingly missing; do you know what the
20 sense of that was?
21 A. I do not, I mean, I presume he is just talking about
22 other soldiers.
23 Q. In the bottom right-hand corner there is something in
24 shorthand and some words I cannot read.
25 A. "Machine-gun, mortars, anti --", I presume that goes on
1 to say "anti-tank".
2 Q. On the next page there is a diagram which shows,
3 I think, the Mortar Platoon going off to the left and on
4 the right "rifle -- anti-tank [that must be Anti-tank
5 Platoon] began the shooting, fired randomly at the
6 crowd".
7 Beneath that, "company major doing things on the
8 ground"; can we go a little further down the screen,
9 please, what are the next words?
10 A. "He stayed on the rear, 'a flapper', Military Cross
11 [something] thought I had totally [something]."
12 Q. You have written "Major Boden"; may that be a mistake
13 for Major Loden?
14 A. I think that is right, yes.
15 Q. "Military Cross"?
16 A. I think he is making the point that he was honoured,
17 possibly after Bloody Sunday, but in his opinion he did
18 not feel he deserved it because he was in a flap.
19 Q. "15 minutes ceasefire call"; what does that signify?
20 A. I am not quite sure what the "15 minutes" significance
21 is. Soldier B, as I understand it, was the radio
22 operator so was given the ceasefire call. I do not know
23 if that came from Major Loden or not.
24 Q. "Radio operator ...", which means he was the radio
25 operator?
1 A. That is right.
2 Q. "... verbally passed on 'they all knew they were naughty
3 boys running around'"; is that all one quote?
4 A. I am not quite sure what that is, it sounds like two
5 separate thoughts. I think that is his own description,
6 that is how he describes the others.
7 Q. If that is so, do you know what they all knew they were
8 means?
9 A. I am not quite sure.
10 Q. "22 rounds H -- intellectually challenged"; again "H" is
11 not something that has been put in by the Inquiry, that
12 was in your original note?
13 A. That is right, yes.
14 Q. Over the page, "nothing courageous"; what is the
15 significance of that?
16 A. Again, I think he is probably making the comment on some
17 of his fellow soldiers.
18 Q. They had done nothing courageous on Bloody Sunday or
19 generally, or --
20 A. I think he is talking specifically about a small number
21 of people on Bloody Sunday.
22 Q. "Fine regiment", is it "no credit to the regiment", or
23 --
24 A. Yes, I think again he is making a general comment and
25 supporting the Parachute Regiment, but he talks about
1 a small number of people were no credit to them.
2 Q. The next words "stayed ..."?
3 A. "Stayed for some time longer".
4 Q. Does he mean he stayed in the regiment?
5 A. As far as I know, yes.
6 Q. "5 to 6 months earlier -- had joined up. Another year";
7 does that mean he stayed for another year?
8 A. I am not sure. It might mean he stayed in
9 Northern Ireland for some time longer, I am just not
10 quite sure.
11 Q. "That day itself ...", what is the next word?
12 A. The next word is "... accommodation for the evening", so
13 wherever they stayed, "men were macho -- elated --
14 swaggering like cowboys".
15 Q. "Back to breakfast --"
16 A. "Belfast".
17 Q. What is the next word?
18 A. "Shankhill -- running beside the vehicles, clapping them
19 on the back and", I am not sure what that is.
20 Q. Something, is it "massaging the ego"?
21 A. The last bit is "massaging the ego".
22 Q. What is the next word?
23 A. Sorry, I am trying to think, I think that actually says
24 "beer, "clapping them on the back and throwing the beer
25 in", so he is talking about how they were congratulated
1 on the way back to Belfast.
2 Q. What is the next line?
3 A. The next line is "not much grey matter".
4 Q. Who is that a reference to?
5 A. He seems to be talking about Colonel Callan.
6 Q. "In a ..."
7 A. "In a secure environment".
8 Q. "Company Sergeant guy -- knew him -- he was quite"; do
9 you know what that is about?
10 A. I think he was saying he was somebody he had a high
11 opinion of, from memory.
12 Q. A single word "notebook"?
13 A. I think then we went on to talk about his notebook, or
14 look at it, that is what he described as his diary.
15 Q. Was it, in fact, a diary or --
16 A. Well, he regarded it as a diary; to me it looked like,
17 I think, a military notebook to me.
18 Q. It was not a statement or in statement form?
19 A. He had lots of notes in it and drawings, and
20 descriptions of things and ...
21 Q. And then the various matters have been redacted as
22 appears from -- sorry, they ought not to have been.
23 Beneath the word "notebook" there are three dashes; has
24 something been redacted here?
25 A. Again, I cannot remember. It looks quite like it, yes.
1 I just cannot remember what specifically was there.
2 Q. Before we finish could you check because --
3 A. Sorry, I do know, it was details of where he was living.
4 Q. At the time?
5 A. Yes.
6 Q. Thank you. Are those the totality of the notes that you
7 have in relation to B?
8 A. As far as I know, yes.
9 Q. Did you discover any notes of any conversation that you
10 may have had with Colonel Wilford in connection with the
11 broadcast?
12 A. I did not, no.
13 Q. Did you look for any?
14 A. Well, I looked through all the notebooks I had, which
15 was about, I think, 9 or 10 notebooks and I did not
16 uncover any more.
17 Q. Thank you very much, that is extremely helpful, thank
18 you.
19 Questioned by LORD GIFFORD
20 LORD GIFFORD: Just one or two questions on the new
21 material. Could we look at M25.49? You have told us
22 these are notes of what was said by three of the
23 soldiers, including soldier C. We see the last
24 reference is 8.50 and you will remember that
25 I intervened to point out that one could, in fact,
1 correlate everything that is said on that page, I think,
2 with material that forms part of the broadcast
3 transcript.
4 Remembering that figure of 8.50, can I go on to
5 M25.29, which we saw yesterday? That starts with
6 a timing of 9.13 and was said by you yesterday to be
7 part of a tape of Soldier C?
8 A. That is right.
9 Q. The question I want to ask first, now that you have the
10 actual notebooks to look at: does 9.13 follow on in your
11 notebook from the 8.50 in the page we saw before --
12 A. I do not think it does, no. I think it is probably
13 complete coincidence because the note I have here,
14 I think, is just the three soldiers cut together, edited
15 together onto one tape.
16 Q. So the one we saw yesterday which starts at M25.29 is
17 a different exercise?
18 A. That is right.
19 Q. Indeed, it contains quite a lot that is not transmitted,
20 including the reference at 10.48 to Soldier C, said that
21 he saw three civilians go down near the Rossville Flats?
22 A. Yes.
23 Q. Mr Chairman, may I just interject that yesterday
24 Mr Clarke, page 100, said that he would be asking you to
25 ensure that the untransmitted broadcast, of which these
1 notes seem to be a note, should be furnished to the
2 Tribunal to the interested parties. I hope we will not
3 forget that because it is clearly a very important
4 extract and I look forward to seeing it.
5 Staying with Soldier C, at M25.51 there was clearly
6 a redaction, something had a sticker placed over it
7 under the words "fired Embassy building"; were you able
8 to tell us what that second word after "fired" was meant
9 to be?
10 A. I cannot say, I just do not know.
11 Q. You do not know if it is shorthand for "to" or for
12 "from", or something else.
13 A. It does not really look like either of those words.
14 Q. The sticker seems to cover something which maybe
15 a sketch, is it?
16 A. I do not think it was a sketch. I think it was some
17 details of where the soldier lived, and possibly contact
18 details.
19 Q. Looking at the new notes, are you able to help me at all
20 further with the question I asked yesterday,
21 namely: what route Soldier C took in order to enable him
22 to see the things that he says he saw?
23 A. Based on the notes, no.
24 Q. I will not take it any further than yesterday.
25 Finally, in relation to Soldier B, at M25.64, the
1 bottom of the page: after the words "nobody had any
2 weapons", could you help us to translate the next
3 sentence?
4 A. "Nobody to fire at. No-one had any weapons after that.
5 They were shot because they could be."
6 Q. You put a star by it because you felt that was
7 significant?
8 A. That is right.
9 Q. What did you understand him to be conveying to you by
10 those words?
11 A. I think just what it says: he talks about the people who
12 were killed.
13 Q. Who was there?
14 A. Who were there, yeah.
15 Q. Thank you very much.
16 Questioned by MR GLASGOW
17 MR GLASGOW: Ms Ferguson, could we look at the first page
18 that you were helping Mr Clarke with, M25.46? Just
19 a small detail. In the extreme top corner, Ms Ferguson,
20 there is a straight line. It is very difficult to see
21 on the screen. Can you see the straight line coming
22 down there? I think you have the original in front of
23 you, have you?
24 A. Yes.
25 Q. If I mark it myself, and a line going down there on the
1 edge. It looks, on the copy as if we have, that it
2 might be part of a plan; is it the edge of a Post-it or
3 something that has been put on?
4 A. It is, yes.
5 Q. There is something confidential at the top right-hand
6 corner?
7 A. Yes.
8 Q. As we see from the other little crosses down at the
9 bottom here where I was putting in the red ones, and
10 a bit more plan there, part of the plan is actually
11 covered up with the Post-it that has been put on with
12 the help of your lawyers?
13 A. I do not think any significant part of the plan is
14 covered up -- we specifically covered up a name and
15 a phone number.
16 Q. While we have that page in front of us, this is A
17 talking to you?
18 A. That is right, yes.
19 Q. We need not go back to the previous page, but you have
20 it there and one of the things he told you -- this is
21 his first interview, is it?
22 A. Again, I think this -- I do not know, I do not think it
23 is his first interview. I think the previous page
24 I gave was a summary of his first interview.
25 Q. I will come back to that in a second, if I may. There
1 is one other matter while this is in front of us: you
2 think he told you he was convinced that the IRA had shot
3 first?
4 A. That is right.
5 Q. Whereas in the broadcast programme it was stated that he
6 was not sure and thought the Army might have fired
7 first; how did that change come when it was broadcast?
8 A. Did we say that exactly in the broadcast?
9 Q. Yes. If you would like to look -- the way it was
10 broadcast, this interview, was at X1.6.15. If we go to
11 the middle of the page, it starts:
12 "Our source told us that he could not say for
13 certain that soldiers near the walls were fired at
14 first. He thought it was possible, but in the confusion
15 the Royal Anglian sniper could have fired without being
16 fired upon", whereas I remind you your own note in your
17 own handwriting appears to say he was convinced that the
18 IRA --
19 A. If he said that in the report, that is what he said.
20 Q. You also told the Tribunal yesterday that your summary
21 note -- and unless there is anything you want on that
22 page -- may we go back to it at M25.23? This was the
23 page that you thought was your summary of all the
24 interviews you had had, I think; maybe that answer has
25 to be revisited in the light of the work you have done
1 overnight, does it, or is this page still --
2 A. Again, that is a summary of one of the interviews I did
3 with him. It might have been -- sorry, could I make
4 clear, it might have been the interview that I did, that
5 I summarised the first time we met him, whereas I think
6 the sketch was possibly -- Alex might have a better
7 memory of this -- the sketch was possibly when we went
8 to Derry.
9 Q. That obviously makes sense, does it not, if he was
10 drawing a sketch for you it may have been on the ground?
11 A. Yes.
12 Q. But if this is a summary of an interview or of other
13 interviews, where are the notes which this summarises --
14 M25.23 I am talking about -- where are the notes that
15 are summarised in M25.23?
16 A. I do not know. It is possibly a summary of
17 a conversation to which I did not have any notes.
18 Q. Forgive me, I will try and -- as I promised -- take the
19 other matters with Mr Thompson, but there are a few
20 other matters, if I may. Back to your new note today,
21 M25.51 --
22 A. Could I just make one last point about what you asked
23 me? I mean, sometimes we would have an early
24 conversation with a soldier and they would make a point,
25 and then a few weeks later we would talk to them again
1 in more detail and they would not always necessarily
2 agree with what they had said first time around, and
3 over the course of a few weeks soldiers often change
4 their minds about things they remembered.
5 Q. The last three lines: "elevated in the air, did not fire
6 a round, fired something, Embassy building"; you cannot
7 help us with the missing word or the shorthand?
8 A. I cannot be sure what that is.
9 Q. Why was that taken out; why was a decision made to
10 redact that when you were redacting material for fear of
11 disclosing identity?
12 A. Because I felt at the time I was not happy and I felt
13 that was information that we should not pass on.
14 Q. But you were helping the Tribunal and you were, if I may
15 say so, being trusted as a responsible body only to
16 redact things that might spoil the whole point of the
17 exercise, which we were all trying to take care over,
18 not disclosing people's identity.
19 Bearing that in mind and that you were a trusted
20 organisation with legal advice, what was the conceivable
21 justification, just as this one example, for redacting
22 those lines?
23 A. Well, I would say what I said before: in my judgment
24 I was not happy to pass that on, and last night I took
25 legal advice and was persuaded that I should pass it on.
1 Q. To take it shortly, Ms Ferguson, does that apply to all
2 the other pages we have seen this morning that were not
3 disclosed; is the justification that you personally take
4 responsibility for redacting the material, that you were
5 not happy to disclose them because they might lead to
6 identification?
7 A. Well, I think I explained the process yesterday. We did
8 have a discussion and I think overnight it was made
9 clear that possibly there were grounds for us to hand on
10 more information. I have to say I am still not very
11 happy about what we have been asked to do. I think it
12 has put us in a very difficult position, and I think my
13 initial judgment was right about the information we
14 passed on.
15 Q. Ms Ferguson, would it be right that it has put you in
16 a very difficult position because the material that you
17 have redacted tells a very different story from the
18 story that Channel 4 wished to put out in the programme?
19 A. No.
20 Q. A large number of the redactions referred to firing at
21 troops?
22 A. That is not --
23 Q. Firing down Chamberlain Street, firing by the IRA, all
24 of which were redacted under the pretence that you were
25 trying to protect your source, whereas what you were
1 actually doing was trying to conceal the fact that you
2 have put out a grossly distorted programme; is that
3 fair --
4 A. I think it is totally unfair to say we put out a totally
5 distorted programme, and I think also it is absolutely
6 wrong to imply that is why we redacted the material.
7 I was very clear about my guidelines for withholding
8 information, and those guidelines are still the same.
9 Q. I want to make it clear, I only thought it right that
10 I should put that to you so that you could comment on it
11 before I comment on it behind your back.
12 A. As I explained yesterday, what is important about the
13 exercise we were doing as journalists is to give
14 information that is new and different and certainly for
15 years, including at the Widgery Tribunal, soldiers had
16 talked about being fired at, so we had a particular
17 theory that was presented to us which we then explored,
18 which was firing from the walls, and the other stories
19 followed from that. There was not a question of us not
20 trying to be fair to the soldiers or the Army, in fact I
21 think we have been very fair, and we are still trying to
22 be very fair in not disclosing their identities today.
23 Q. Just one example: Soldier D, who impressed you as being
24 a credible and honest man, you noted that in your
25 statement; Soldier D impressed you as being credible?
1 A. I think all the soldiers, I felt, were credible.
2 Q. I only gave you Soldier D, Ms Ferguson, as an example
3 because the only part of the account he gave you,
4 including all the accounts he gave of being shot at by
5 the IRA, the only part you put in this programme was his
6 claim that he would give up citizenship if there was an
7 apology?
8 A. I think Soldier D was very happy that I did that. I do
9 not think Soldier D ever complained to me about that,
10 and I do not think he has ever had any problems.
11 Q. Maybe we will now be able to ask him because, because of
12 your evidence the Tribunal had hitherto ruled that he
13 had nothing of substance to tell them, but perhaps we
14 now know the truth, and I am grateful for it.
15 Questioned by MR ELIAS
16 MR ELIAS: Just a question or two, Ms Ferguson, if I may, on
17 the issue of the totality of your notes. Could we look,
18 please, at X1.6.38; the passage attributed to "FP"
19 immediately under 48 minutes and 45 seconds? "FP" for
20 this purpose Soldier E, do you follow? That passage
21 broadcast -- well, as far as statements taken from the
22 military, there were 41 soldiers made statements, and so
23 on -- does not appear in any notes that you have
24 disclosed to us today as attributable to E; can you tell
25 us where it is, please?
1 A. I would presume it was in the broadcast he made to us.
2 Q. I am sorry?
3 A. You are saying this is an actual clip we carried?
4 Q. Yes. It is not in your note, as far as we can see
5 anyway?
6 A. But, as was pointed out yesterday, my notes are not
7 necessarily a transcript of the interview.
8 Q. Say that again, please.
9 A. I do not quite understand what point you are making.
10 Q. There is a passage transcribed as attributed to Soldier
11 E, which does not appear in any note that you have
12 provided to this Tribunal, as far as we can see?
13 LORD SAVILLE: Mr Elias, can you remind me, is this an
14 actor speaking these words on this particular
15 transcript?
16 MR ELIAS: I believe it is an actor. If we can go up the
17 page -- if we can go back to the full page, FP1, the
18 extract towards the top of the page:
19 "I do not think the regiment as a whole has anything
20 to be ashamed of about that day", is of course part of
21 the note that this witness has produced and has been
22 ascribed to Soldier E. I am being reminded by Mr Moss
23 it is at M25.56 in the notes we were provided with
24 today --
25 A. I do not think you have an entire transcript of
1 everything that this soldier said in his interview.
2 Q. That may be so. What I am simply asking you, if you can
3 help us, is whether this passage from Soldier E which is
4 in the broadcast; do you follow?
5 A. Yes.
6 Q. But does not appear in any note you have provided, as
7 I understood --
8 A. There is no reason this soldier said everything they
9 said in a broadcast interview to me previously in
10 a different conversation.
11 LORD SAVILLE: Yes, but this was not in fact the soldier,
12 it was an actor, so somebody must have given the actor
13 the lines, which is why I asked the question. This was
14 an actor on this particular --
15 A. Soldier E was played by an actor.
16 LORD SAVILLE: What Mr Elias is saying in effect, where did
17 the actor get his words from?
18 A. He would have got his words from -- based on the
19 interview that the soldier gave. Where the notes are,
20 they are possibly on separate pieces of paper, I do not
21 know. I do not have them.
22 MR ELIAS: You do not have them.
23 A. Well, I have gone through all the notebooks and we
24 passed on everything relating to these five soldiers
25 that we could.
1 Q. Have you destroyed any notes?
2 A. No.
3 Q. I will leave E. If I take up the question of Soldier A
4 for a moment again, M25.2, your statement to this
5 Tribunal, paragraph 4, Soldier A. What you said here:
6 "Following our first broadcast on Bloody Sunday, we
7 received a call for a Royal Anglian soldier based on the
8 walls. I spoke to him at length. He eventually agreed
9 to meet me and Alex Thompson. I made it clear he would
10 speak only on a confidential basis", then this:
11 "We spent 2 and a half hours with him and I made
12 lengthy notes of conversations [note the S] with this
13 soldier. He agreed to let us use this information", and
14 so on.
15 What you say at the end of this paragraph is:
16 "I have separated what I understand is referred to
17 as the 'informing' material from the confidential
18 material and believe the former has been or will be
19 disclosed to the Inquiry".
20 You did go through, did you, some exercise of
21 separating informing material, as you call it, from
22 confidential material and that produced the one page
23 that you, at that stage, produced to this Inquiry,
24 namely M25.23, the summary?
25 A. That is right.
1 Q. So you did make lengthy conversations, lengthy notes of
2 2 and a half hours' worth of conversations which, for
3 the purposes of this Inquiry, originally you reduced to
4 one page, M25.23; can we have that on the screen for
5 a moment?
6 I ask you the question and I invite you to think
7 about it, Ms Ferguson: is this a summary made
8 contemporaneously, as you suggested to Mr Clarke
9 yesterday, that is to say at the time of the interview,
10 or is this a summary you made later for the purposes of
11 giving to this Tribunal?
12 A. No, I certainly did not make it later to give to the
13 Tribunal. It was -- I possibly made it late on in the
14 conversation with the soldier, but, you know, this
15 soldier, like many other people, had not talked about
16 this for a long time. I do not -- you know, our
17 conversations with them were not an exact science, they
18 would be quite rambling, incoherent a lot of the time,
19 so as we were talking to him -- Alex was talking to him
20 I might have sat and summarised what I thought he said,
21 or the important points --
22 Q. It was very important, was it not, to keep the original
23 record of what the soldier said and not a summary if you
24 were ever going to quote him, particularly in any
25 television programme?
1 A. Well, as far as I know these are the notes to the best
2 of my knowledge --
3 Q. I simply ask you this question --
4 A. -- of what I had.
5 Q. Then I simply ask you this question: if, as you told
6 Mr Clarke -- we will go back and look at it if you need
7 to -- this was a summary of the conversation made at the
8 end of the conversation, a conversation where you had
9 been taking notes, as you have told the Tribunal, where
10 are the notes that relate to the matters set out in this
11 summary because, with one or two exceptions, we do not
12 appear to have them?
13 A. I do not know. I have gone through the notebooks and
14 I have not seen them. I do not know.
15 Q. You have told the Tribunal yesterday that some of the
16 notebooks of yours were in Belfast and some, I think you
17 said, were elsewhere; what did you mean by that?
18 A. Just exactly as I said.
19 Q. Where did "elsewhere" mean?
20 A. I said they were in Northern Ireland.
21 Q. Where elsewhere in Northern Ireland?
22 A. I do not feel I particularly want to answer that
23 question any further than I have. We went through all
24 the notebooks last night. They were all here last night
25 and I went through them all.
1 Q. Were they in the hands of people who should not have had
2 them?
3 A. What sort of people are they?
4 Q. I am simply wondering why you will not tell the Tribunal
5 where they were?
6 A. Well, I have answered the question; all the notebooks
7 were here last night and I went through them all, and
8 I gave my notes as I found them.
9 Q. The notebooks that had been in Belfast and elsewhere in
10 Northern Ireland were all recovered for you, were they,
11 last night?
12 A. They were all delivered to the hotel, yes.
13 Questioned by SIR ALLAN GREEN
14 SIR ALLAN GREEN: Ms Ferguson, I appear for a number of the
15 soldiers, including Soldier H, as will soon become
16 clear. My name is Allan Green.
17 May I ask you to look, first of all, please, at
18 25.52, which simply says "Notebook 4, all Soldier E"?
19 I want to examine with you whether that is actually
20 right and accurate in one particular respect.
21 Can we go two pages over, please, to M25.54? You
22 will see at the bottom of the page "H" and various less
23 than flattering comments about him, but on the left
24 there is the letter B"; is it possible that that in fact
25 relates to Soldier B?
1 A. I do not think so.
2 Q. If that is not right, what does it relate to, or what
3 may it relate to?
4 A. I do not know, I am sorry, I do not know.
5 Q. Sir, I would like, if this is allowed, the opportunity
6 to see, and only to see, the way in which the name
7 appears in the notebook. I do not seek to see it at
8 this moment; I do not seek to see anything else on that
9 page, but I would like to see the way in which my
10 client's name apparently is set out there, if I can be
11 afforded the opportunity.
12 LORD SAVILLE: Yes, Mr Caldecott, is there any objection to
13 that? The reason we have put "H" in is, of course, to
14 preserve anonymity, but that can hardly apply to Sir
15 Allan who appears for "H".
16 MR CALDECOTT: Certainly. We disclosed it in fact without
17 the "H" in, so we cannot object to him seeing it
18 unredacted if he wishes to.
19 LORD SAVILLE: Do we have a copy of it unredacted?
20 SIR ALLAN GREEN: Sir, I can see it during the adjournment
21 if that is more convenient.
22 MR CLARKE: There is a slight problem in that I am not sure
23 that I was not provided -- fatal to give Counsel
24 originals -- with my learned friend Mr Caldecott's only
25 copy this morning and we have redacted it with Tippex.
1 If one looks carefully one can see where the Tippex is,
2 but I can tell my learned friend what I have seen and if
3 there is not some other solution that may satisfy --
4 LORD SAVILLE: We will start with that anyway, Sir Allan.
5 We will see what we can do over lunch.
6 SIR ALLAN GREEN: Sir, I am grateful and we can take it as
7 far as we can in that way, and I am obliged.
8 You cannot help us any more about the letter B?
9 A. I am afraid I cannot, no.
10 Q. Can we come to Soldier B? Yesterday, I think you were
11 able only to produce one page of his. For
12 cross-reference purposes that was M25.25; that was all
13 that was available yesterday in relation to that
14 particular soldier's conversations with you. We have
15 many more pages today and I would like to look at some
16 of them with you.
17 Let me ask you some preliminary questions: you had
18 a number of telephone conversations with Soldier B
19 before you actually met him?
20 A. That is right, yes.
21 Q. Roughly how many, very roughly?
22 A. Possibly 4 or 5 conversations.
23 Q. Over what sort of period?
24 A. Over a period of 2 or 3 weeks.
25 Q. And then in due course you meet him?
1 A. Yes.
2 Q. And talked to him for a substantial period of time?
3 A. The first time I spoke to him was for several hours.
4 Q. And he brought along to this meeting with you various
5 documents?
6 A. He brought along a notebook.
7 Q. I think you said -- if I caught it right earlier on --
8 that it looked like a military notebook?
9 A. That is right.
10 Q. What sort of size?
11 A. Maybe 4 by 6.
12 Q. Did he refer to that and to other documents during the
13 course of his conversation with you?
14 A. Yes, he did.
15 Q. Would it be right to describe him as quite a fluent and
16 talkative person?
17 A. No, that is not the way I would describe him. He was
18 very nervous, quite stilted. It took him a long time to
19 work out what he wanted to say exactly.
20 Q. He, as you have indicated, helped himself, no complaint
21 about that at all, but helped himself and helped you by
22 referring to various documents that he had with him?
23 A. Well, I do not really remember him referring to the
24 diary very much. I mean, I know it was there. He
25 showed it to me. I mean, he had notes in it that were
1 similar to some of the things he was saying, but I do
2 not remember playing a major part in the conversation.
3 Q. He had other pieces of paper as well?
4 A. I do not remember anything else.
5 Q. I think you said he had drawings of some sort?
6 A. I think the drawings were in the diary, I do not think
7 they were separate pieces of paper.
8 Q. The notebook itself: as far as -- this is page 25.63 --
9 is concerned the references to F and G, as I understand
10 it in your notebooks, the originals, the letters F and G
11 appear there?
12 A. That is right.
13 Q. As distinct from my client's appearance on the page that
14 we were talking about a few minutes ago, where his name
15 appears, but in the original here the letter F and the
16 letter G appear?
17 A. That is right.
18 Q. And you were telling us earlier, I think, that you could
19 not be sure whether you have supplied him with F and G,
20 or were able to as a result of what he was saying, or
21 whether he was able to supply the reference?
22 A. That is right, I think it was more likely that
23 I supplied the letters.
24 Q. That you supplied them. As far as H is concerned, there
25 is a reference to him on page M25.65 at the very bottom.
1 Can I just get clear -- although others may be, I am not
2 quite clear -- what the position is about the reference
3 to H there; is it the case that again a letter has been
4 supplied either by you or by Soldier B as earlier on
5 with F and G, or is it the case that his name appears
6 and it has been redacted?
7 A. No, no name has been redacted. I cannot remember the
8 process exactly, but Soldier B talked about soldiers and
9 named the soldiers, but the names of the soldiers did
10 not mean anything to me. I had read the Widgery
11 reports, so I would try to relate the names he gave me
12 to what I had read in Widgery. So I would say between
13 us I had worked out that that is who H was.
14 Q. Of course the 22 rounds would help you?
15 A. Yes.
16 Q. Ms Ferguson, thank you very much.
17 MR CLARKE: Ms Ferguson, one last matter. I wonder whether
18 it would be possible before you leave for you to be able
19 to tell us whether D and E were in C Company or what
20 other company they were in? You told us, I think, that
21 you would have a look at your notes; would it be
22 possible to do that?
23 A. I would prefer not to answer any further questions about
24 details on who the soldiers are.
25 Q. Not details where they are --
1 A. Of who they are or anything that might lead to any
2 further identification of them.
3 Q. We will have to deal with that under the anonymity
4 heading, in that case.
5 LORD SAVILLE: Thank you, Mr Clarke.
6 Ms Ferguson, as you possibly gather from what they
7 were discussing first thing yesterday morning, the way
8 we are going to proceed now is to hear Mr Thompson.
9 Then we will hear the submissions relating to the
10 question as to whether or not we should order you to
11 identify these sources, and then we will make our
12 ruling.
13 The upshot of that means we cannot release you as
14 a witness until we have decided what to do at the end of
15 those submissions; do you understand that?
16 A. Yes, I do.
17 LORD SAVILLE: I think in those circumstances I would have
18 to say to you I would be grateful if you would not
19 discuss the evidence you are giving because we are not
20 yet sure whether you have finished giving it.
21 A. Okay.
22 LORD SAVILLE: I think we will stop now, Mr Clarke, and
23 start again at 1.55 with Mr Thompson.
24 MR MACDONALD: Could I raise a matter? It is a matter
25 I raised yesterday about whether or not the Tribunal
1 could invite Ms Ferguson to --
2 LORD SAVILLE: I had not actually forgotten that. I had
3 taken the view, rightly or wrongly, that it seemed to me
4 probably to be a sensible suggestion, but I would like
5 to hear everything on this matter before I decide
6 whether or not to ask Ms Ferguson to undertake that
7 task. I would be grateful, Mr MacDonald, if by chance
8 I forget that, you do raise it at the end of the day.
9 MR MACDONALD: The end of today?
10 LORD SAVILLE: The end of the days, by which I mean the end
11 of the discussion on this question of sources and so on.
12 Thank you.
13 (12.05 pm)
14 (The Short Adjournment)
15 (1.25 pm)
16 LORD SAVILLE: Ms Ferguson, you have made a quicker than
17 expected reappearance, I am afraid, in the witness box.
18 That was because of something that transpired this
19 morning, which I think we ought to try and clear up.
20 MR CLARKE: When you were giving evidence this morning, you
21 were reluctant to say where the "elsewhere" was your
22 notebooks had been, that is to say elsewhere other than
23 Belfast.
24 I do not want to know where your notebooks have been
25 and I know where they now are. What I wanted your
1 assistance about was this: what was the reason for your
2 reluctance to say where "elsewhere" was?
3 A. Because I just think it is easier if I am the one person
4 who knows where they are.
5 Q. Do you mean by that that you do not want anybody else to
6 know where the notebooks were or are usually kept in
7 order to preserve them from anybody getting access to
8 them; is that what you are saying?
9 A. Well, it is just I have put them in safekeeping and
10 I did not particularly want to say where I had put them
11 in safekeeping because it means I have to say who has
12 them, but it is not anybody sinister who has them, it is
13 just I have left them somewhere safe.
14 Q. I thought they were now here?
15 A. They are now here, yes.
16 Q. You had left them somewhere safe?
17 A. They arrived in a taxi from Belfast yesterday.
18 Q. They are now here?
19 A. Yes.
20 Q. Before they arrived here, had anybody had access to them
21 other than yourself and your fellow journalists?
22 A. I do not think anyone has ever looked at them apart from
23 lawyers and Channel 4 journalists since I wrote in them
24 five years ago. So nobody else has seen them or had
25 access to them in that time.
1 Q. Have any of them been kept in custody of someone in
2 circumstances where other people would have access to
3 them?
4 A. No.
5 Q. I understand the position is that you are, since the
6 notebooks are now here, you are prepared to undertake
7 that they should be lodged with Messrs Charles Russell
8 until any further order of the Tribunal?
9 A. I am afraid that is new to me.
10 Q. That is what I was told.
11 MR CALDECOTT: That is not what I said. She is quite happy
12 to give an undertaking to the Tribunal not to destroy,
13 harm or tamper with them in any way, but I was not asked
14 to give an undertaking to give them to the solicitors
15 and I doubt she would be prepared to do that. I have
16 not taken instructions on that, but certainly she will
17 give a personal undertaking, which I would expect the
18 Tribunal to accept, that she would not destroy or remove
19 them from the jurisdiction, or whatever the usual form.
20 LORD SAVILLE: Why would you not be happy to deposit them
21 with Charles Russell & Co?
22 A. Because I feel they are my notebooks and there is a lot
23 of information in them that I would prefer to explain to
24 people what it is, if anybody wants to know. At the end
25 of the day, I just think they are my notebooks and my
1 property and I think I should have them and decide what
2 is going to happen to them, if anything.
3 LORD SAVILLE: I understand that in one sense, but clearly
4 the notebooks, redacted or not, are of very significant
5 importance to this Inquiry.
6 A. That is the very reason I would like to keep them
7 myself.
8 LORD SAVILLE: In those circumstances, it would certainly
9 seem to me that an appropriate place for them to be kept
10 would be in the safe of a firm of solicitors, the
11 stature, for example, of Charles Russell, who are the
12 solicitors to ITN, together with other possibly equally
13 important material such as the video.
14 A. Can I ask why you think they are safer there than if
15 they are left with me?
16 LORD SAVILLE: Because we then have them -- I am not saying
17 this out of any disrespect to you at all, Ms Ferguson --
18 in the possession of somebody who as an officer of the
19 court owes a duty to the court and indeed to this
20 Tribunal.
21 A. I am happy to make an undertaking that the notes will
22 not be tampered with or destroyed in any way. The
23 reason we are here is to fight on principle what we
24 think is important in defending agreements we made with
25 soldiers. I do not want to destroy the notes and I am
1 not going to, but I would like to retain control of them
2 myself.
3 LORD SAVILLE: The depositing of them with Charles Russell,
4 as Mr Caldecott, although I know he does not directly
5 act for you, would agree, has absolutely nothing to do
6 with the question as to whether or not they should be
7 disclosed to the Tribunal; they would be kept
8 confidentially by that firm of solicitors.
9 I am not sure I entirely understand why you are
10 reluctant to adopt that course?
11 A. Well, I would just repeat that I am not happy for them
12 to be out of my safekeeping and I do not know what is
13 going to happen next with our position in this Inquiry,
14 but it is possible I might be in disagreement with ITN
15 on some point about what we do next. I do not know,
16 that might not be the case, but again I would just
17 prefer to have control of the notebooks myself.
18 LORD SAVILLE: I do not think that would be altered by
19 their deposit with Charles Russell, because they would
20 be deposited with Charles Russell against an undertaking
21 by that firm only to deal with them in accordance with
22 the directions of the Tribunal, subject of course to
23 further directions of any other court.
24 A. I would regard the notebooks still as my property and
25 I would prefer to keep them.
1 LORD SAVILLE: I would ask you, Ms Ferguson, if you could
2 consider that further this afternoon because, as far as
3 the Tribunal is concerned, although we have no doubt
4 that you are in good faith trying to preserve these
5 notebooks, we would feel happier, were they -- all this
6 material to be in one specific safe place.
7 A. Okay, well, I think I can guarantee they would be in
8 a safe place and stay here in this country.
9 LORD SAVILLE: Is there anything else you wanted to ask,
10 Mr Clarke?
11 MR CLARKE: No, there was not.
12 LORD SAVILLE: Mr Glasgow, Mr Elias, anything you wanted to
13 ask on this. We will leave it there, Ms Ferguson and
14 try not to trouble you, at least not ask you to give
15 further evidence today.
16 MR ALEXANDER THOMSON, affirmed
17 Questioned by MR CLARKE
18 LORD SAVILLE: Mr Thomson, you have been sitting in the
19 hall?
20 A. I certainly have.
21 LORD SAVILLE: In that case I do not think I need introduce
22 myself, but can you keep close to that microphone so we
23 can hear what you have to say.
24 MR CLARKE: Do you have with you firstly the statement, the
25 first page of which appears on the screen, which you
1 signed on 22nd May of the year 2000, and secondly, the
2 statement which begins at M84.4 on the screen, and which
3 is dated at the top 22nd September 1999.
4 A. Yes, I do, I have both statements.
5 Q. Are the contents of those two statements true to the
6 best of your knowledge and belief?
7 A. They are, to the best of my knowledge, yes.
8 Q. All I want to deal with is your dealings with Soldier A.
9 Could we come to M84.28. What you have very helpfully
10 done is to make a typescript of your notebooks in
11 relation to an interview with Soldier A. I am going to
12 work on the typescript mainly.
13 Can you help us as to where this interview falls in
14 the order of things; was this the first interview,
15 a later interview, or what?
16 A. If you are talking about the first, page 1 and page 2,
17 page 3, you will see there is different paper there.
18 I believe, to the best of my knowledge, that was
19 actually an original telephone call prior to actually
20 going to see this soldier.
21 Q. Page 1 to 3 is a telephone call?
22 A. As I recall.
23 Q. And the rest?
24 A. The rest broadly fall into a number of different
25 categories. Page, if I can take it that way --
1 Q. I think we better look at the origins, if we go to
2 M84.18, that is page 4 in the original?
3 A. I should say pages 4, 5, 6, 7, 8, 9 and 10 and, indeed,
4 11 would be during conversations which took place with
5 soldier A and then the next are possibly of not much
6 value but they are just references to further enquiries
7 and check calls that needed to be made.
8 Q. A to-do list?
9 A. They are more or less a to-do list, but I included them
10 in the redacted notes because they obviously refer to
11 soldier A and I thought everything should be included.
12 Q. Do you have any other notes in relation to soldier A?
13 A. I do.
14 Q. You do?
15 A. I do.
16 Q. Why do we not have those?
17 A. Because they would compromise his anonymity.
18 Q. We will come to that in a moment. Let us look, if we
19 may, using the typescript. Can we come to M84.16. The
20 manuscript has, in the bottom left-hand corner "agrees
21 all this." Am I right in thinking that there is
22 a redacted section immediately above?
23 A. Yes, that is correct.
24 Q. Let us go back to the typescript: M84.28. Your note is
25 "very concerned all sides"; explain to me what that
1 means?
2 A. Sorry, which page are you looking at, exactly?
3 Q. M84.28, the typed version of page 1?
4 A. Page 1.
5 Q. If you want the original, it is at M84 --
6 A. I am going back to my memory here, recalling this is
7 obviously a very brief jotting, if you like, of
8 a conversation that was taking place, Lena was making
9 the bulk of the notes here.
10 That is a reference to him being concerned then, as
11 indeed he is now, on two counts: firstly he feels,
12 whatever the reality of the situation may be on the
13 ground, but he feels that he is still at threat in some
14 way from paramilitaries in Northern Ireland, the IRA on
15 one hand, as a former British soldier. He also feels,
16 equally, that he is in threat of going public, if I can
17 put it that way, from former members of the British
18 Army.
19 Q. That is what "all sides" means?
20 A. Yes, that is what "all sides" mean.
21 Q. "Definitely corroborates wall"?
22 A. That means the city walls, yes.
23 Q. But corroborates, what?
24 A. Corroborates information which had been talked about,
25 indeed, was actually originally on the public record at
1 the time of Bloody Sunday, that there had been firing
2 from the walls involving regiments which were not the
3 Parachute Regiment.
4 Q. "Doubtful others will speak at all.
5 "So long ago?? 26 years -- no quite clear."
6 Does that mean he was not quite clear or something
7 different?
8 A. I suspect that means he was not quite clear.
9 Q. "Could place himself there if we took him there"?
10 A. Yes, so he said, yes.
11 Q. We will come to that in a moment?
12 A. Indeed.
13 Q. We have page 2. In the typescript it is "agrees all
14 this and more," but you have redacted whatever it was he
15 agreed to?
16 A. Yes.
17 Q. Can you tell us, without identifying what his name is,
18 either what it was he was agreeing to or the sort of
19 thing he was agreeing to?
20 A. Yes, I can, I think I can say without any worries: he
21 would be referring there to fairly detailed stuff of
22 what he recalls doing on the day, where he went, what he
23 did, his relationship perhaps with other people in the
24 platoon of 14 men that he was with.
25 Obviously to hand over material like that would,
1 I think, very strongly compromise him.
2 Q. The phrase that puzzles me is "agrees all this and
3 more", which suggests on one reading that he was
4 agreeing either with something that had been put to him
5 or something that he was told other people had said and
6 I note that the next entry is "all others quite right";
7 was he agreeing with something that had been --
8 A. I think that was an indication that -- again we are
9 getting to the edge of my memory on this, but I think
10 what I was saying was that he agrees to what had been
11 said before, which obviously I cannot go into, and
12 I think would like to say more about it.
13 As will become clear, the form of this
14 conversation -- it would be helpful to give some
15 background as to what was happening here. I think that
16 might actually throw some light indeed on some confusion
17 which arose from this side this morning.
18 This was a man, I have said in my statement, who was
19 extremely reluctant to talk in one sense, although on
20 the other sense he had actually approached us. What
21 happened on the first meeting, it is very easy to
22 suppose, you know, from the vantage point of a Tribunal
23 like this, that one's approach is almost legalistic; it
24 is not. When you turn up to meet somebody like this, it
25 was very much an exercise in putting someone at their
1 ease and whilst it is true that I think on the main
2 occasion when we did meet this soldier A before we took
3 him to Londonderry, whilst that meeting was probably in
4 excess of two hours, two and a half hours, what actually
5 happened there was we had to kind of give him our bona
6 fides. He was quite keen, I think he clearly knew who
7 I was and wanted to sort of tell his story to some
8 extent, but we needed to, if you like, jolly him along,
9 if I can use that phrase.
10 We showed him a number of long videos of what
11 Channel 4 News is about, of the sort of work we had done
12 on Bloody Sunday, although it was only at its inception
13 at that stage.
14 So a good deal of that time was taken up with that
15 kind of thing. Equally, a fair measure of that time,
16 was, as you would expect, us trying to find out his bona
17 fides, was he what he said he was; could he prove it;
18 could he produce documents and he was scurrying around
19 producing suitable documentation to prove that he was
20 who he said he was, he had been where he said he had
21 been, insofar as he could, in terms of being in
22 Northern Ireland, Londonderry and so forth.
23 A good deal of the time, as you can imagine, was
24 taken getting his confidence. It was not a situation
25 where one sat down and forensically went through what he
1 had to say and tried to corroborate it, cross-reference
2 it, however we could. This was a confidence-building
3 exercise, first and foremost.
4 Q. When you made the note "all others quite right," can you
5 recall who the "others" are that are referred to?
6 A. I honestly cannot. I have not got to the bottom of that
7 one, no, I am afraid.
8 Q. You put:
9 "Light ballistic report, Hugh Thomas, Merthyr
10 hospital."
11 That is a reference to what had appeared in the
12 Channel 4 News broadcast?
13 LORD SAVILLE: Mr Glasgow, I see you on your feet, I am so
14 sorry, I did not notice before.
15 MR GLASGOW: Not at all, I hope I am not interrupting
16 unhelpfully. Can I make one respectful suggestion that
17 may save a lot of time and I think help us and the
18 witness: could the witness not have in front of him the
19 original unredacted document, so that he is not at the
20 disadvantage that he appears at the moment of having to
21 cast his mind back as to what has been redacted; surely
22 he can see his own document and then help Mr Clarke
23 rather more fully with his questions, rather than
24 casting his mind back.
25 A. I do not feel at any disadvantage, Mr Glasgow, only in
1 this sense: I am very much aware of what is in the
2 material which I am not able to give the Tribunal and
3 I am very clear in my own mind why I cannot discuss that
4 with you here today, that is the process of a thorough
5 redaction, that one gives as much as one possibly can in
6 order to assist the Inquiry. But it would of no
7 assistance to me sitting here now to have it in front of
8 me.
9 LORD SAVILLE: We will carry on as we are at the moment,
10 but if you change your mind as a result of the
11 questions, let me know, Mr Thomson.
12 MR CLARKE: Your note goes on to say:
13 "Yes, corroborates all," you may want to look at the
14 original at this point at M84.16. There seems to be
15 something in the typescript, I cannot quite understand
16 the sense. I cannot understand whether it means "yes
17 corroborates all, that would be the angle and trajectory
18 he says"?
19 A. Yes, what we are having here: he has just seen the first
20 report we have done. Excuse me, featuring in particular
21 the extracts of the interview we conducted with
22 Hugh Thomas, at Merthyr Tydvil -- the consultant at
23 Merthyr Tydvil hospital and a ballistics expert. He has
24 seen that.
25 He is running through in his own mind as far as he
1 can where he was and he is basically saying:
2 "Yes, that makes sense to me, I have seen the
3 ballistics evidence, I have seen the post mortem
4 evidence as we presented it."
5 He is saying, yes that -- what was only a theory at
6 this stage -- that makes sense, i.e. what he had seen in
7 our report tallied with what he felt could have happened
8 in terms of shooting on that day. I put it no stronger
9 than that.
10 Q. Is this in the context of what he was saying about the
11 sniper whom he saw fire or about something else?
12 A. I think that is in the general -- my recollection is
13 that at this stage we had not gone on to that particular
14 detail, but again I would not -- I would be hazy about
15 this.
16 Q. I think we can go back to the typescript, M84.28 "I am
17 no expert," have you got any further as to what the
18 meaning of what follows is?
19 A. I think that must be a reference to ballistics, bullets,
20 ballistics.
21 Q. And "also the buildings bloke"?
22 A. Yes, I do not know what that means.
23 Q. Any idea what that means?
24 A. No, I cannot help you. The shorthand is "running to the
25 Bogside blocks", the blocks of flats in the Bogside.
1 Q. Go back to M84.16, what does the shorthand read?
2 A. "Running into the Bogside blocks," a reference to the
3 crowd. He was talking, as I recall, talking at that
4 stage, a scenario where he was on the walls looking
5 down, crowds of people dispersing when the shooting
6 began, dispersing off into the blocks of flats.
7 Q. If we go to M84.17, the manuscript. The top left-hand
8 corner, I think it reads:
9 "No chance. Bogside/Creggan."
10 There is a squiggle?
11 A. Yes, the arrow, yes.
12 Q. Does the arrow signify anything?
13 A. Only to draw my own attention to this, at this stage we
14 had clearly come round to a discussion of how it would
15 be extremely useful for our purposes if he would be
16 prepared to go back to Derry and, if you like, to some
17 degree relive the events of the day, insofar as he
18 could.
19 Clearly what he was saying there was:
20 "No chance of going into an area such as the Bogside
21 or Creggan Estate, no way. I am dead if we do that."
22 I think that speaks for itself.
23 Q. Then he talks about the peace process and his problems
24 with his employer if he were to go.
25 Can we then come, please, to M84.28, back to the
1 typescript. We have now got to page 4, which is, as
2 I understand it, the beginning of an interview and not
3 a telephone conversation?
4 A. Yes.
5 Q. Can you tell me what "Macca times 4606" means?
6 A. Yes, I can. That is a reference to Andrew MacDonald,
7 our foreign editor, phoning me up to ask me if I would
8 go to Bosnia. You must understand the work myself and
9 indeed Lena did on this was very much interrupted. It
10 was not we were taken off the roster with infinite
11 resources, we were taken off doing other things, notably
12 abroad in Lena's case, and in mine. So that is just
13 a reminder.
14 Q. What you have written is:
15 "Not sure walls 1st fired at? -- noisy?/shouting
16 elevation -- poss could have fired 1st, big confusion."
17 Could you fill that in for us, as to what is the
18 significance of those three lines?
19 A. Yes, I mean he was recalling as best he could the
20 situation on the day that he remembered it and I think
21 the strong sense that we got, he was not sure at this
22 stage whether they had been fired upon first or whether
23 they in fact fired first.
24 Noise and heat of battle, if you like, I think.
25 Q. If we go to M84.29, over the page, page 5:
1 "Still remembers this clearly like yesterday says --
2 first firing from walls."
3 Can you tell us what the meaning of that is?
4 A. Yes, I take that to mean, that is the first firing that
5 he saw going out from the walls rather than firing
6 coming in, though I think I am right in saying it is
7 a moot point, I think he cannot be sure at any stage
8 whether they were fired upon first, returning fire or
9 whether they opened up first.
10 Q. "Movement," what does that signify?
11 A. I do not know.
12 Q. "When cannot say for certain -- not sure"; does "when"
13 mean whenabouts in the afternoon?
14 A. Yes, obviously one of the things we were interested to
15 do was try and place this within the course of the
16 afternoon. Did he have a timeframe and so forth -- he
17 did not, or he was not sure.
18 Q. "Page 6 -- sniper window position 'he has got a gun' now
19 shouts."
20 Does that mean he was saying there was a sniper in
21 the window position who shouted out "he has got a gun"
22 or something different?
23 A. It means that.
24 Q. Presumably what follows means that the sniper fired
25 three rounds, said "'bloody hell, I have got 2 with 3
1 shots'"; what does "2 -- 3? Yes, def" mean?
2 A. That is "yes, definitely". I mean, obviously when this
3 man said that of course we were extremely interested,
4 the first thing we wanted to do was get immediate --
5 that is what he meant, that is what he said: "you can
6 confirm that -- "yes, definitely".
7 Q. "Two -- 3" means two out of three, does it?
8 A. Yes.
9 Q. Your next note has:
10 "Derelict terrace down from walls to Bogside -- now
11 gone, grassy mound."
12 That is obviously a description of what, where the
13 sniper was, is it?
14 A. Yes, I think at this stage it was becoming apparent he
15 would be willing to travel so we were endeavouring,
16 before getting there, to get some general idea of where
17 he was, with the hope, obviously, if he could give us
18 something from his standpoint a long way away from
19 Londonderry and then go and match that on the day when
20 we walked him around, that is obviously a good deal
21 more, shall we say, interesting in terms of confirmation
22 that he was telling the truth about this than simply
23 saying "let us wait until you get there and let us see
24 what you can tell us".
25 Q. "Page 8 -- walls" and what you think says "DOMS", do you
1 know what that is?
2 A. I am afraid I do not.
3 Q. "14 man RAR [Royal Anglian Regiment] Platoon there and
4 sniper -- sniper RAR? Paras? Not sure."
5 Can you tell us what that signifies?
6 A. As he says, he was not quite sure. We were clearly
7 asking him, I was jotting down the headlines of this, if
8 you like, "clearly there was a sniper there in your
9 view, you clearly recall him saying and doing something
10 with some certainty"; the obvious next question would be
11 "was he one of yours"?
12 Q. Is the position he is not sure whether it is a Royal
13 Anglian or a Para?
14 A. Correct, at that stage, yes.
15 Q. On the next page, page 9, "Go to Derry!" Does that
16 reflect your being either surprised or pleased or both
17 that he was prepared to go to Derry, or him saying "I am
18 not going to go to Derry in a month of Sundays"?
19 A. No, I can confirm that suggest me being both surprised
20 and pleased.
21 Q. "Running to chase this", does that mean anything?
22 A. No, I suggest that is probably just a note to myself,
23 something of a wish list, a reminder of some sort.
24 Q. "Page 10 -- video -- should do -- yes? Nod, nod
25 yes/yes."
1 What does that cover?
2 A. That is probably a reference -- again casting my mind
3 back, he may well have wanted to have another copy of
4 the video, "nod nod, yes/yes". I do not know that what
5 means.
6 Q. It is an emphatic agreement with something?
7 A. It is, is it not. With what, I cannot help you, I do
8 not know.
9 Q. "Does not say much -- agrees lines, yes, definitely
10 there on walls, Anglian Regiment"?
11 A. I think that was a summary, if you like, of the kind of
12 evidence which he was prepared to give, which was that
13 he did not have an awful lot to say in terms of, you
14 know, an encyclopaedic knowledge of what happened in the
15 afternoon as he saw it from lunchtime until teatime as
16 it were, but he had fairly precise details of what he
17 had been doing on the walls and what he had seen there,
18 particularly in terms of the sniper position.
19 Obviously it was critical for us to get as much as
20 of that, as I say, from him in this location and then,
21 given that he was happy enough to go and revisit the
22 location, to see if we could match up the two.
23 Q. "Bloody hell, I have got 2" is presumably a repetition
24 of the previous account?
25 A. Yes.
1 Q. Does the "4" signify anything?
2 A. I do not know what the "4" signifies, no.
3 Q. "Why content may be [shorthand] because they were very
4 keen to have us, Paras."
5 Can you help us as to what that means?
6 A. Yes, I mean clearly the last reference is he was very
7 keen to, if you like, tell a different version from what
8 has passed as the official version of Bloody Sunday,
9 that only the Parachute Regiment were involved,
10 particularly involved in the shooting element of it,
11 though just, you know, he had considerable fears to
12 overcome in doing this.
13 You know, I do not want to give the impression this
14 was a sort of a five-minute chat in which he suddenly
15 said, "Yes, an away-day to the Derry walls would be
16 terrific". This was a delicate and rather long process.
17 Q. Could we go to M84.30, the next page. We seem to be
18 getting now into the "to do" realm a bit?
19 A. Very much so, yes.
20 Q. "Royal Anglian Regiment. Check HQ Colchester, Norwich?
21 He very scared and worried about reaction from all
22 sides."
23 A. Yes.
24 Q. "Page 12 to do -- local papers."
25 What is that a reference to?
1 A. Given that although we, despite our own best endeavours
2 over a long period of time, we had absolutely no
3 co-operation on anything we were doing at all from the
4 Ministry of Defence, it seemed only reasonable, perhaps,
5 to place one or two adverts in the East Anglian press on
6 the basis that maybe, just maybe there could be some
7 soldiers, former soldiers, whatever, who may feel able
8 to come forward and either corroborate what soldier A
9 said or perhaps say it was a load of rubbish.
10 Q. Did you put ads in the papers?
11 A. I think we did put ads in the papers. Nobody came
12 forward, I think. I think we did end up putting ads in
13 the papers.
14 Q. Before we go to page 13, can we go back to M84.26,
15 because I think you have helpfully set out in typescript
16 most of the manuscript but not in fact all of it. In
17 the bottom left-hand corner, in an oval, is what looks
18 like, it is either 'sold 5" or a telephone number?
19 A. I have checked that, it is actually a telephone number,
20 although it does have a digit missing.
21 Q. On the right-hand side, can you read out what it says;
22 it looks like "chase this"?
23 A. At the top, yes, "chase this". "Chase this, they must
24 have people who were there. Veterans Association. Also
25 the Paras, Aldershot, Museum there plus archives."
1 I believe that is a reference to the Parachute
2 Regiment in museum Aldershot.
3 Q. What is the next line?
4 A. Yes, I am just wondering that myself.
5 Q. "More out there"?
6 A. "More out there", yes.
7 Q. Sounds like you are saying there must be more out there?
8 A. There must be more out there, yes. Perhaps a note of
9 frustration there, writing a note to myself.
10 Q. We have sometimes had that. M84.27. You have:
11 "Check, check, check others."
12 A. Yes.
13 Q. Is that just an instruction to yourself --
14 A. Yes, we had obviously said, one of the obvious questions
15 one would ask is "you must not be the only one, you must
16 know people" and so forth, "there must be others out
17 there".
18 It was just, possibly in view of the fact earlier,
19 as you recall, I was probably going abroad fairly soon,
20 to try and get through this checklist as fast as
21 possible.
22 "Reg HQ" -- regimental headquarters, I imagine,
23 where is it, Norfolk, Suffolk, Essex.
24 Q. That is this interview you had with soldier A?
25 A. That covers a telephone call and, as I say, sort of
1 jottings during the interview in which obviously Lena
2 was taking more extensive notes. You do not want to sit
3 down and both of you laboriously write down everything
4 when you are trying to gain somebody's confidence.
5 Q. I understand from a previous answer that you gave to me
6 that there are in fact notes of another interview which
7 you have not produced, even in redacted form, but have
8 withheld in their entirety?
9 A. No, no, I think you misunderstand. There are redacted
10 notes from this meeting, there are bits that I have held
11 back from this meeting which identify him, yes.
12 Q. What we have is the full copy, but redacted?
13 A. Yes, precisely.
14 Q. There is no other documents?
15 A. There is no other documents, no.
16 Q. Did you interview either B, C, D or E?
17 A. I did not.
18 Q. You went or came to Derry with soldier A; is that right?
19 A. That is correct, yes.
20 Q. Were you familiar with the geography of this city before
21 you came here?
22 A. Yes, I had lived in Belfast for two and a half years
23 whilst I was working with the BBC, so obviously had
24 a certain familiarity, I am no expert by any means,
25 but ...
1 Q. Are you able to indicate to us, if I show you either
2 a photograph or a map or both, where soldier A
3 indicated, if he did indicate, that he was and the
4 sniper was?
5 A. The problem, the problem really with the exercise was
6 that he never was able to precisely indicate -- I mean,
7 it became, it became slightly embarrassing for him
8 because we were plodding up and down the walls, the
9 three of us, "could it have been here, could it have
10 been there", and in the end he was beginning to think he
11 was drawing attention to himself, simply by behaving
12 perhaps in this slightly unusual manner. As he tried
13 desperately, with a completely reconfigurated area, the
14 geography has changed wholesale, but I think -- I mean,
15 my summary of what he was trying, as best he could do,
16 was pretty much around the monument area, the derelict
17 buildings.
18 But he would not, if he was sitting where I am now,
19 he would not be able to put it in more precise terms
20 than I am or indeed Lena was able to help with
21 yesterday.
22 Q. Could we have on the screen P210.2. The area of the
23 walls with which we are concerned stretches, in this
24 photograph, from the monument we see there to the
25 bastion we can see there (indicating) and there are
1 a series of houses below the monument and a series of
2 houses below the bastion and there is a road that leads
3 down to the Bogside here and there is a road that leads
4 down on to the wasteground as it then was, there.
5 (Indicating)
6 What is not clear, at any rate to me, is whether or
7 not he was indicating that the sniper was in this area,
8 which is below the bastion at the extremity of the wall
9 before it turns at right angles to go towards the Foyle
10 or in the area of the monument, which is some
11 considerable way away to the left-hand side of the
12 photograph as we look at it, because there are what may
13 have been derelict houses in both places? (Indicating)
14 A. Yes.
15 Q. Are you able to help us at all?
16 A. I think probably not, because he was not, he was by no
17 means entirely sure, but it seemed, it seemed to my
18 recollection, with the conversation I had, the more
19 likely position was the more northerly of those two
20 locations, either one on the left of the screen as you
21 look at it.
22 Q. In the area of the memorial?
23 A. It is in the area of the memorial of the two, but he
24 simply could not say with absolutely surety, he simply
25 could not do it.
1 Q. None of the houses were there when you were looking?
2 A. None of the houses were there, Rossville Flats has gone,
3 many of the houses, the terraces below have gone.
4 Q. Was he ever able to say whenabouts in the proceedings
5 the shots took place?
6 A. No, as we said in the extracts of the notes, he was not
7 able to do that.
8 I mean, bear in mind our interest at this stage was,
9 you know, rather in perhaps, we were obviously
10 interested in getting any information we possibly could
11 from him as to where he was, but simply the fact that he
12 was confirming to us, this was the second source of
13 information, now confirming to us after all these years
14 that there were other regiments high up on the walls and
15 that there were individuals who fired, you know, this
16 was in itself, you know, it perhaps seems old-hat now,
17 but at that time this was something of a breakthrough,
18 that someone was prepared to go there and say what he
19 had said in another location.
20 Q. Did you know that there was evidence before
21 Lord Widgery, in the sense that there was documentation
22 before Lord Widgery, of firing by the Royal Anglians,
23 certainly from this sort of area, that is to say outside
24 the walls but at that level?
25 A. I was aware that there was evidence to that effect was
1 put before Widgery, yes, yes. Indeed, I mean the Army
2 press officer on or about the day of Bloody Sunday
3 said -- and it is recorded on film -- there were at
4 least two other regiments besides the Parachute Regiment
5 who were involved in action on the periphery.
6 That would -- I would take that to be the periphery,
7 that location you have just indicated.
8 Q. Thank you very much. Those are my questions.
9 Questioned by MR GLASGOW
10 MR GLASGOW: Could you help the Tribunal, please,
11 Mr Thomson, with the parts of the transcript of the
12 broadcasts that I was not able to deal completely with
13 Ms Ferguson.
14 We have the transcript in X1.6.1. I wonder if you
15 would look at the cover sheet for us. That is the cover
16 of it. You would have seen these videos, yourself,
17 I imagine, since the broadcasts?
18 A. Yes, indeed, yes.
19 Q. There is one matter you might be able to clarify. It is
20 not a criticism this, I promise you. I counted them up
21 as being eight broadcasts, in all. She thought there
22 were seven and I think you thought there were seven; am
23 I wrong?
24 A. I think we are kind of all right. I think the confusion
25 is, if you can put it this way, seven comprise a body of
1 investigative reports, attempting to put new information
2 and possibly what has been included is an eighth item on
3 the announcement of the Bloody Sunday Inquiry being set
4 up. I think -- I would not swear by that, but I think
5 that is what we are talking about.
6 Q. Just to make sure we are not missing anything, then, if
7 I were to take you right to the end, if I may take
8 a moment over this, X1.6.60 -- do you have the hard copy
9 there, sir?
10 A. I have hard copies of --
11 Q. X1.6.60. We have that as a video on the break, starting
12 with the words "Expectations are mounting tonight ..."
13 If it helps, I think you are right --
14 A. That would point to the announcement of the Inquiry,
15 would it not?
16 Q. Yes. If that is the eighth programme, is that the one
17 you had in mind?
18 A. That would be number 8, yes, that helps.
19 Q. Back to the beginning, and I will stop if I repeat
20 anything, I will try and cover the matters that
21 Ms Ferguson was not able to help us with.
22 Could we look in the first programme at X1.6.6,
23 please. When you yourself at the top of the page, the
24 "AT" in the margin refers to you speaking, I think?
25 A. Yes.
1 Q. The introduction which we looked at yesterday, it is
2 just the third line, your evidence, you say:
3 "Our evidence will show there were other secret
4 forces, units high up in the old city walls firing into
5 the crowds in the Bogside."
6 You were there referring to the other regiments my
7 learned friend Mr Clarke just reminded you about that
8 Lord Widgery had known about, but your revelation was,
9 as you thought, this was the first evidence there had
10 been that they had fired?
11 A. Indeed, yes, but also one has to allow for the passage
12 of time. As you will only be too well aware, the
13 official version for more than a generation has been
14 that only the Parachute Regiment were involved. That is
15 a version of events one repeatedly heard from the
16 Ministry of Defence.
17 So whilst it had been placed on the public record,
18 but actually in the media at the time, this critical
19 piece of information seems to have been long since
20 forgotten.
21 Q. When you say "involved", Mr Thomson, you, perhaps
22 understandably, are referring to "involved in the
23 shootings of those who were known to have died"?
24 A. Involved in the shootings, involved in the shootings.
25 Q. Was it your understanding that there had been no
1 evidence at the time of the Widgery Inquiry that anybody
2 else had been shot at at all?
3 A. It was my understanding that at Widgery there had been
4 evidence that other regiments were in a position on the
5 walls, as you have just heard from your learned friend,
6 and that they had been shooting. I do not think
7 anybody, to put it crudely, has yet managed to, if you
8 like, link those shootings with particular bodies.
9 Q. One of the matters of this Inquiry may be concerned with
10 is whether or not we have all the bodies yet; you cannot
11 help as to that?
12 A. Indeed.
13 Q. "Indeed" you say?
14 A. Indeed.
15 Q. Very well, we agree on that. Move on, if we may, to
16 X1.6.9. Your investigations, Mr Thomson, started
17 when -- forgive me if I summarise it too shortly: Don
18 Mullan contacted the programme and you got appointed to
19 investigate as somebody with quite a bit of experience?
20 A. Not quite. I think the process of events was as
21 follows: that a colleague of mine received a tip-off
22 from Jane Winter of British/Irish Rights Watch, passed
23 it on to me and said "Look, this might be of interest to
24 look at" and I went down and contacted her about it,
25 very much in my frame of mind, "What possible new
1 information can there be to arise out of Bloody Sunday".
2 She then put me on to the large number of ignored
3 eyewitness statements which I believe were supplied from
4 the body of Don Mullan's book; obviously the next stage
5 is to get in touch with Mr Mullan and things followed
6 from there.
7 Q. If we pause there to remind ourselves, Mr Mullan's book
8 was on the brink of publication, which was what made
9 this topical?
10 A. I cannot remember, I am not sure it was on the brink of
11 publication: he had simply got hold of these witness
12 statements which Widgery decided were not of interest,
13 some 45 of which, I think I am right in saying, refer to
14 firing on the walls, evidence which was not heard at
15 Widgery, which I am sure you are aware.
16 Q. The page we are on there are two matters I want to deal
17 with. We will leave the whole page for a moment. The
18 post mortem evidence you refer to and the ballistic
19 evidence at the top. In the middle of the page, where
20 we see the AT and where you say, we hear it on the film:
21 "And we can now say definitely that there was at
22 least one Army sniper operating up close to the city
23 walls on Bloody Sunday -- the Public Record Office
24 recently released a statement from a private in the
25 Royal Anglian Regiment."
1 That was probably a statement that you had actually
2 received from either Jane Winter or from Don Mullan?
3 A. I cannot remember the promise or where it actually came
4 from. If you like, that is what first set the ball
5 rolling in the direction of the walls, yes.
6 Q. You then read out, accurately, some passages out of that
7 statement and that triggered other events that followed
8 in your subsequent programmes?
9 A. Yes, I imagine we quote from it there, I have to refresh
10 myself.
11 Q. It may help you to look at the original. We have it as
12 B1937. I wanted your confirmation that this was what
13 you were talking about. He is a man who, the
14 Widgery Inquiry and here was referred to as 156, you see
15 at the top, Soldier 156.
16 So you know what it is, in the top right-hand
17 corner, the SA61 would be, this is the version of the
18 statement that was taken by the Treasury Solicitors
19 acting on behalf of Lord Widgery's Inquiry?
20 A. Possibly, I would not like to get led down the road to a
21 document which I am not, on the face of it, familiar
22 with. All I am saying to you is this was apparently
23 something that had come to light from the Public Records
24 Office. We in good faith reported it as being new and
25 of interest, concurrent with those statements which were
1 emerging via Don Mullan.
2 Q. Mr Thomson, you were keen -- one of the matters that you
3 wanted to tell everybody about was that other regiments
4 had been involved and who they were?
5 A. I wanted to tell everybody everything which was
6 genuinely or apparently new about Bloody Sunday. I have
7 absolutely no agenda here, beyond probably the agenda of
8 this very Inquiry, which was just to set out new
9 information, in the hope that a genuine inquiry and not
10 the farce, which I think we can all accept
11 Lord Widgery's inquiry was, would finally get to the
12 bottom of what happened.
13 Q. It was on reading this document that you concluded that
14 this man had been a private in the Royal Anglian
15 Regiment?
16 A. As I say, I am not, you know -- you spring that document
17 on me, so I do not want to get cornered in any
18 particular document. I obviously refer you to the
19 programme as broadcast.
20 Q. I am probably trying to save too much time. Let us go
21 back to the programme as broadcast and I will assist any
22 attempt to take shortcuts. X1.6.9. Reading what you
23 say, we read the first sentence:
24 "The Royal Anglian Regiment patrolling the walls,
25 the soldier writes 'an Army sniper was situated on my
1 left about 15 yards away in the attic of a derelict
2 house outside the city walls and returned 3 shots -- but
3 I did not see where his shots had gone and there was no
4 return fire.'"
5 If we go back then to, please, B1937, perhaps in
6 fairness to you, could we put them up side by side,
7 please. I would like the whole document there, the
8 bottom paragraph 3, after he says "about 10 minutes
9 later", three lines down:
10 "An Army sniper was situated on my left, about
11 15 yards away in the attic of a derelict house outside
12 the city walls and returned three shots -- but I did not
13 ..."
14 It looks as if that was what you were reading from,
15 Mr Thomson, I hope?
16 A. Yes.
17 Q. The only matters I wanted you to reconsider: what you
18 got from this document, first of all, if we go right up
19 to the top, he was not a Royal Anglian, was he, he was
20 a 22 Light Air Defence, Royal Artillery?
21 A. As I say, that is a new document which clearly I am not
22 going to get drawn into.
23 Q. I thought we established just a second ago it was
24 a document that you read from on the television, you
25 have just looked --
1 A. What I said was "it looks like it," that is a very
2 different thing.
3 Q. Do you think you got the fact that you broadcast to
4 everybody, as your initial broadcast, that this was
5 a member of the Royal Anglian Regiment from anywhere
6 other than this document?
7 A. It is possible.
8 Q. You may have got it from somewhere else?
9 A. It is unlikely I would have made a mistake with a
10 regiment like that, which is clearly what you are trying
11 to suggest, is it not?
12 Q. Mr Thomson, I am not trying to suggest anything of the
13 kind. I will make it plain when I am critical and
14 I have not. Indeed, I am going to suggest the very
15 opposite; that perhaps when you first read this document
16 you might, wholly understandably, have mistaken "RA" for
17 Royal Anglian?
18 A. That is possible.
19 Q. You see right at the top there: "22 Light AD Regiment"
20 and to somebody not familiar -- somebody like me, not
21 familiar with military matters might have read "RA" as
22 Royal Anglian, rather than "Royal Artillery"?
23 A. I accept that is possible. I am not saying that is
24 actually what happened.
25 Q. Looking at the document as a whole, Mr Thomson, what
1 this soldier appears to have been saying at the time was
2 that he had seen a crowd at about 4.25, had he not?
3 A. Yes.
4 Q. That is what you have read?
5 A. Yes.
6 Q. He then heard the sound of automatic fire which sounded
7 like a Thompson sub-machine gun from the direction of
8 the flats?
9 A. Yes.
10 Q. And various things had then happened.
11 In the paragraph 3 which we just looked at, at about
12 10 minutes later, the words:
13 "At about 25 to 5.00, further 2 shots were fired at
14 my location, although I could not see where these shots
15 had come from."
16 That appears to be what the soldier was saying and
17 what this soldier was therefore saying in the statement
18 that you would appear to have read out on your initial
19 programme, that this soldier was talking about shots
20 having come from the St Columb's Wells direction and
21 being returned by a sniper in that direction; that would
22 appear --
23 A. That is clearly what the soldier said, yes.
24 Q. What he said. What I wanted you to help with: was there
25 anything, when you met soldier A, that led you to
1 believe that the sniper he was talking about was anybody
2 other than the person who had been spoken about in this
3 statement which you yourself had read out on the first
4 programme?
5 A. That is exactly the point we wish we could clarify, but
6 such was his recollection and the vagueness of his
7 recollection, beyond this "bloody hell, I got 2 with 3
8 shots", in terms of actually placing this individual at
9 a set location at a set time and be able to say he was
10 returning fire or whatever else it may be, which would
11 clearly marry with that statement, but he simply could
12 not do it.
13 Q. When you broadcast the report of what soldier A had told
14 you and indeed showed the view along the walls which we
15 looked at with Ms Ferguson, forgive me for jumping, but
16 I think we should go to X1.6.15.
17 The point I was concerned to have help with, I am
18 not sure you did help the Tribunal as much as you were
19 able to, is that your words spoken on this page were,
20 having referred back to last week's report when you read
21 out the soldier who talked about the firing into
22 St Columb's Wells in return of rifle fire, you then said
23 you tracked down another Royal Anglian, except this one
24 was a Royal Anglian and crucially he confirmed that
25 a Royal Anglian sniper was situated in this derelict
1 terrace of houses overlooking the barricade at which
2 three people had been killed.
3 It was at that point, sir, so you have the complete
4 picture, on the television for the second time, you
5 produced P482. I leave it for the moment, there is
6 nothing else in that transcript you would like to look
7 at?
8 A. No, that is fine.
9 Q. Please ask me if you would like to go back to look
10 together at the photograph you produced. I am not
11 suggesting for one moment you were deliberately
12 misleading anybody, but the result may have been very
13 misleading, Mr Thomson. 482 is the picture that flashed
14 up on the screen. That, as we know -- do you know the
15 geography at all?
16 A. Yes, I am reasonably familiar.
17 Q. Taken, if I say to you roughly at Kells Walk, looking
18 across where the rubble barricade would have been. What
19 you did, if I may get this right, you placed a box
20 around that house there (indicating) down to that house
21 there; do you remember the little yellow box that comes
22 up on the television?
23 A. That was the area he appeared to be indicating to us,
24 yes.
25 Q. Had you appreciated, Mr Thomson, at the time, that that
1 row of houses where the yellow arrow is and indeed the
2 one where the blue arrow is, would not have been visible
3 from the rubble barricade itself?
4 A. Well, we went into this because Lena spoke about it
5 yesterday and this is clearly a matter of some debate.
6 It is our view, having checked it out, having gone and
7 got photographs from the local library, having checked
8 this out with the individual concerned, that he felt
9 that it was, but I think you are in some confusion from
10 what you were saying yesterday, which I hoped to help
11 you with this afternoon.
12 At no stage in any of our reports do we ever state
13 that the people at the barricade were shot by people, by
14 any individuals; that would be extremely foolhardy,
15 since we have no proof.
16 Q. What you said to the Tribunal today is that soldier A
17 had been very vague in where he thought the sniper had
18 been?
19 A. Indeed, yes.
20 Q. But the words you broadcast in the programme were that
21 he:
22 "... crucially confirmed that there was a sniper in
23 a row of terraced houses overlooking a barricade in
24 which three unarmed civilians had been shot."
25 A. Indeed, all of which is factually correct. It is
1 crucial that (a) he confirmed that. It is further
2 crucial that he was prepared to, albeit anonymously, go
3 on television and say that.
4 It is also crucial there is photographic evidence to
5 show it, it is clearly above that rubble barricade. We
6 can argue until the cows come home whether or not it is
7 visible from the rubble barricade, but I would humbly
8 suggest that is rather an empty exercise, since we were
9 never suggesting categorically that they were shot from
10 that position, those three individuals were shot from
11 that position -- which seemed to be, if I may say so,
12 your confusion yesterday.
13 Q. I am sorry if I am confused. Let us go back to X1.6.9,
14 which is the first programme, I think, in which you used
15 the phrase, look at the bottom, that "they directly
16 overlooked the barricade in the foreground by which all
17 three men were shot". I think you are saying now you
18 did not intend to convey to your listening public the
19 impression that the three men had been shot at the
20 rubble barricade by the sniper at whom you were --
21 A. I think it is better to concentrate on what we are
22 actually saying than what we infer. There is no doubt
23 that that area of derelict houses was in an area
24 overlooking that rubble barricade. There is no way of
25 getting away from that.
1 Q. I hope I am not trying to get away from anything,
2 Mr Thomson, thank you for your help.
3 Let us look at the top of the page and see what the
4 forensic evidence is you were looking at:
5 "We showed the post mortem results to Hugh Thomas,
6 a former Army surgeon and ballistics expert."
7 Was that a little bit of an overstatement, to
8 describe Mr Thomas as a ballistics expert, do you think?
9 A. I do not believe it was, no. We put it to him, "could
10 we describe you, would that be a fair way to describe
11 you"; he had no problems with that.
12 Q. In his statement to the Tribunal he describes himself as
13 a surgeon with some knowledge of ballistics; that is not
14 the way he described himself to you, is it?
15 A. No, I went -- I said to him, I distinctly remember doing
16 this, I said "the way we like to introduce you is ...
17 should we agree a form of words, this is a very
18 important point, you are a former Army surgeon,
19 ballistics expert"; he had no problem with that.
20 Q. What you told everybody was that you showed him the
21 results and that he quickly agreed that the Paras at
22 street level could not have killed these men?
23 A. Precisely.
24 Q. That is right, is it, that he quickly agreed that?
25 A. Yes.
1 Q. Casting your mind back, do you not think that you showed
2 him rather a lot of material and gave him all the
3 reasons why you thought they could not have killed him?
4 A. Absolutely not.
5 Q. I wonder if we could see what you actually said, because
6 here we do have the advantage of you having disclosed
7 the technique and the way in which the questions were
8 asked. We have it at video 36 at 1.32, could we look at
9 that together and see the way in which Mr Thomas in fact
10 quickly agreed with the post mortem results. Could we
11 take video 36 from the point we had yesterday, at 132,
12 please.
13 (Video Played)
14 Q. I think that may refresh your memory, Mr Thomson, that
15 after the surgeon had actually given his answer, he says
16 "cut" and you then make two statements to him, you say:
17 "Given that the men are standing at the barricade
18 and given that two of them are walking away from the
19 soldiers who are supposed to have fired at them ..."
20 And you then get what you describe as the "quick
21 agreement", which is all that you broadcast on the
22 television; that is not fair?
23 A. No, it is completely wrong, having just seen the video.
24 What you saw there -- indeed "quickly agreed" might be
25 understating it; "instantaneously agreed" may be
1 a better way of putting it. I am very glad that you
2 have shown me that video, because what it demonstrates
3 is the first time I asked him the question, in a much
4 more, as you would see it, neutral way, he immediately
5 builds a scenario in which these people could have been
6 shot, only to suggest that that only possible scenario
7 is entirely preposterous. I would say that is
8 instantaneous agreement, not quick agreement. Thank you
9 for showing it to me.
10 Q. It certainly will not help the Tribunal if I debate it
11 with you, but you can see your answers and matters you
12 put yourself. We will leave it there. Thank you for
13 looking at it with me.
14 Can we go over the page to X1.6.10, please, the next
15 small matter. You also had the advantage, if that be
16 the right word, of discussing the matter with James
17 Porter?
18 A. Indeed, yes.
19 Q. You describe at the middle of the page, it comes from
20 a tape-recording from James Porter:
21 "In 1972 he was a neutral figure, monitoring radio
22 traffic and liaising between the military and Derry's
23 no-go areas."
24 Where did you get that information from as a fair
25 description to publish about Mr Porter?
1 A. That was the view of people we spoke to in the Security
2 Forces about him, the RUC and so forth.
3 Q. The RUC and the Security Forces told you that James
4 Porter was a neutral character who liaised between the
5 military and the Bogside?
6 A. Yes. That was also his own description, he said that
7 was the sort of work he underwent, although it was true
8 of course he was -- it was felt by Widgery some of these
9 recordings might be of a dubious legal basis. I think
10 it is fair to accept that James Porter was, and still
11 is, a widely respected figure in this town.
12 Q. Maybe he was.
13 A. Indeed.
14 Q. The last three lines, you say that:
15 "James Porter is seen on the left here talking to
16 soldiers on the day. For 25 years he has kept the tapes
17 hidden, but tonight he has made them exclusively
18 available to Channel 4 News."
19 A. That is absolutely our honest understanding of the
20 situation. We were understandably amazed that he had
21 sat tight on this material for all that material.
22 Q. You honestly believed he had never shown it to anybody
23 else?
24 A. That is what he was telling us and we had no reason to
25 doubt that.
1 Q. You really are sure Mr Porter told you he had never
2 shown the tapes to anybody else?
3 A. He might have shown them, but broadcasting them is
4 a quite different matter, is it not, I am sure you would
5 agree?
6 Q. Over the page, please, page 11. You then listened to
7 the tapes and the first point that you make is that, you
8 pick up what you think, at the top, is Derek Wilford,
9 Lieutenant Colonel Wilford?
10 A. We believe so, yes.
11 Q. What you actually say is:
12 "65 is Lieutenant Colonel Derek Wilford, the Paras'
13 commanding officer."
14 A. Then that is what we obviously believed to be the case.
15 Q. But before you broadcast in public a part of the tape
16 which you understood had never been listened to by
17 anybody before, what did you do --
18 A. That is not true. Forgive me, I thought we had just
19 cleared that up a second ago. What we are saying is
20 that it had not been broadcast to anybody before.
21 Q. That is just what I put to you?
22 A. There is a world of difference. Forgive me, you said
23 "played", that is a very different thing.
24 Q. I apologise, you were broadcasting a tape which had
25 never been broadcast before?
1 A. That was our understanding, yes.
2 Q. You believed the man whose voice you were going to
3 broadcast was Derek Wilford's, or the sign was to him?
4 A. We believe so, yes.
5 Q. Did you ever discover that was wrong and 65 was not
6 Lieutenant Colonel Wilford?
7 A. I have never discovered, clearly not, no.
8 Q. At the bottom of the page, the second entry we have for
9 you is:
10 "AT: Lieutenant Colonel Walsh also sent messages
11 informing officers of firing from the city walls."
12 That too you believed to be true, did you?
13 A. Of course.
14 Q. Did you check it?
15 A. Yes.
16 Q. Therefore what did you think was Lieutenant Colonel
17 Walsh's call sign?
18 A. If it is not mentioned there, I am very unlikely to
19 remember it now. But if you are seriously suggesting we
20 are likely to put material like this on Channel 4 News
21 without checking it, I think you would readily agree
22 that is an absurd suggestion.
23 Q. I hope it is not, because we can see for ourselves,
24 those of us who have taken slightly more trouble with
25 the material, that it is not an absurd suggestion,
1 because what you broadcast was wrong?
2 A. That is not the same as saying we did not check it.
3 Q. You did check it, did you?
4 A. That is what I have told you.
5 Q. You may have told me, that is what I am questioning you
6 about, that is why we want to know how careful you were;
7 who did you check it with?
8 A. I am sure calls were made -- the first person we checked
9 it with was the person who had the tape.
10 Q. Mr Porter?
11 A. Mr Porter, then further calls, I am sure we made checks
12 with a wide variety of other people beyond that. I am
13 sure check calls were made through to the Ministry of
14 Defence about this, for instance. It was very unlikely
15 we had any co-operation.
16 Q. Did you understand what Lieutenant Colonel Walsh's
17 function was, do you remember what he was; it is not a
18 test of memory, I do not need to do it -- we all know he
19 was the helicopter man, looking from above?
20 A. You are an expert on this, I am not. The point you will
21 see from the story is that, as it says there, Lieutenant
22 Colonel Walsh also sent messages, informing officers of
23 firing from the walls. The clear importance of these
24 tapes -- and it matters not whether they have been, you
25 know, who had heard them over the intervening years, the
1 clear importance of these tapes is clearly two-fold:
2 firstly, they were never given any due consideration by
3 Lord Widgery's Inquiry and secondly, they do provide,
4 regardless of whatever we may think happened on the day,
5 they do, do they not, provide radio evidence of people
6 talking about firing from the walls; that is absolutely
7 critical to this Inquiry.
8 Q. Perhaps we could go over the page, unless it would be
9 helpful, simply for the record, so that nobody thinks
10 I am playing games, I hope, what you actually broadcast
11 to the world at large, was, of course, "Zero and 90
12 Alpha and 76, this is 54 Alpha". In fact, that would
13 have been a message from the Royal Anglians on the walls
14 telling 8 Brigade, 22 Light Air Defence and Coldstream
15 Guards precisely what had happened, that they had been
16 fired at and had returned fire; but you interpreted that
17 as a message for the helicopter?
18 A. I did not interpret it, I do not see there is any
19 interpretation there from a helicopter, unless I have
20 missed that.
21 Q. I thought you said you understood Colonel Walsh was the
22 helicopter?
23 A. No, you said that.
24 Q. Who did you understand him to be?
25 A. I did not make any comment about who I understood him to
1 be. It is an important point, let us get it clear: as
2 I explained a couple of moments ago, the point about
3 Mr Walsh is not what position he occupied in the
4 Security Forces, the point about Mr Walsh is that on
5 these tapes he is somebody who is heard, apparently, to
6 the best of our knowledge, confirming on recorded tape
7 that there was firing from and to the city walls; that,
8 I think we all agree, is a rather important, rather
9 important matter.
10 Q. Over the page, if we may, X1.6.12, the top half of the
11 page. This is your second reference to the tapes and
12 you say:
13 "A short time later another message came through, it
14 again confirmed soldiers up near the walls, firing and
15 this time hitting a civilian."
16 You play the first part of the tape, which says:
17 "Hello Zero, this is 54 Alpha, reference 2 shots
18 return at gunmen near Bogside Inn."
19 Do you see that, on the right?
20 A. Yes.
21 Q. Then you complete the exchanges and you continue to make
22 your own comment, that:
23 "Hundreds of civilians were crowded into Free Derry
24 Corner at this time, close to the Bogside Inn."
25 A. Uh-huh.
1 Q. So you read into the tape the firing had been towards
2 the Bogside Inn and you told everybody that hundreds of
3 people --
4 A. No, no, no, that is a completely false suggestion. Look
5 at what the tape says:
6 "Hello Zero, this is 54 Alpha reference 2 shots
7 returned at gunmen near Bogside Inn. Man seen to fall."
8 It is not Alex Thomson saying the firing was at the
9 Bogside Inn, it is the tape. You seem to be suggesting
10 that I am festooning this with comments. That is simply
11 not true.
12 Q. Do listen to the question, Mr Thomson?
13 A. I am listening to the question and I am answering.
14 Q. Your comment I referred you to was the comment you made
15 about that broadcast. You had accurately played the
16 tape that said that a gunman had been shot near the
17 Bogside Inn and you added the comment:
18 "Hundreds of civilians were crowded into Free Derry
19 Corner at this time, close to the Bogside Inn."
20 A. Uh-huh.
21 Q. How far away did you think Free Derry Corner, where
22 hundreds of people were crowded, was from the Bogside
23 Inn?
24 A. How far away?
25 Q. Yes?
1 A. A matter of a few hundred yards at most.
2 Q. A matter of a few hundred yards at most. Your comment
3 goes on:
4 "Not one account talks of a gunman firing from this
5 area."
6 Your understanding was that of the hundreds of
7 people who were in the area close-by, there was not one
8 account of any gunman firing in that area?
9 A. At the time when we were producing this report, yes, and
10 do not forget -- let me finish, please -- do not forget
11 at the time, what we were going through were the
12 hundreds of witness statements, particularly which had
13 not seen the light of day in the Widgery Tribunal. That
14 was the type of -- beginnings of our enquiries into
15 this.
16 Q. The only other matter on this comment, after the little
17 break:
18 "Also James Porter's tape of police messages has the
19 soldiers firing -- not at the Bogside Inn, where no
20 bodies are gunmen were ever found, but into these flats
21 where unarmed civilians fell."
22 The passage of the tape which you then play as
23 justification for the comment that there was firing into
24 these flats where the unarmed civilians fell is
25 immediately below:
1 "2 more shots were fired at the Army in the walls in
2 the area of the flats, fire was returned and one person
3 was seen to fall."
4 That was the passage, was it?
5 A. Yes.
6 Q. You will forgive me if I take a moment not to put to you
7 matters that Ms Ferguson has already helped us with.
8 Could you help the Tribunal, Mr Thomson, with
9 X1.6.30; if you prefer the hard copy, it is page 29 of
10 your own transcript. This reference to "RM" I think is
11 Rory McClean, is it not?
12 A. It is indeed, yes.
13 Q. I am not suggesting these are your words, but you are
14 the only man I can put them to:
15 "A total of seven people were shot here. Four of
16 them died. We now believe that these killings happened
17 after the ceasefire had been issued while a separate
18 statement from a British soldier who saw the shootings
19 ..."
20 The only point I wanted you to confirm, that is
21 a reference to your soldier B, who we have known as O27?
22 A. Mr Glasgow, in all honesty, I do not feel -- we are
23 dealing with someone else's work here. As I explained
24 to your learned friend, I was away off in Bosnia or
25 wherever. In fairness to Rory, I do not think I could
1 trespass on his work.
2 Q. The only thing I think you might be able to help with,
3 Mr Thomson: did you understand there were two British
4 soldiers or ex-British soldiers who had given Channel 4
5 statements about Glenfada Park or would this, despite
6 what it says, simply be a reference to soldier B, whose
7 statement had already been looked at earlier in the
8 programme; you cannot help?
9 A. I really cannot help, I really genuinely cannot help
10 with that one.
11 Q. I will not press it. You yourself, Mr Thomson, did not
12 speak to any of the other soldiers who Lena Ferguson's
13 note refers to?
14 A. No, I am afraid not.
15 Q. Could we go to page 40, which we have at X1.6.41. Again
16 X1.6.41, this is John Snow speaking; if you want to make
17 the same comment, please do?
18 A. I better be very careful what I say, then.
19 Q. It is simply the reference in the second half, down
20 here:
21 "We have used forensic audio equipment to examine
22 gunshots heard on that tape. Close analysis appears to
23 confirm that the IRA did fire shots at soldiers and at
24 least one Army sniper fired steady, controlled shots at
25 the crowd. This was later followed by sustained
1 outburst as the paratroopers opened fire at the crowd."
2 You had obtained, had you, a forensic audio report?
3 A. Yes.
4 Q. Which was to tell you there was sustained firing at the
5 crowd, that is what the report told you?
6 A. That is what the report told us, yes.
7 Q. Can you remember the name of the audio expert that is
8 a reference to?
9 A. I am afraid I cannot, but I think we have the name of
10 the studio we took it to, certainly.
11 Q. If necessary I am sure you can confirm that, just in
12 case the Tribunal has not got it. If there is an audio
13 expert report that confirms, by analysis, shooting at
14 the crowd, I would like the Tribunal to have it?
15 A. If there is one, yes, yes.
16 Q. If there is not, it would hardly have been referred to
17 in the programme?
18 A. It would have been in the sense that it is possible --
19 my memory is not totally clear on this -- it is possible
20 we took an expert along, sat with him and he went
21 through this process, where basically you make a sound
22 visual and you can analyse it.
23 Q. Going to the final investigative programme, Mr Thomson,
24 as X1.6.52 -- again, take it from me it is you talking
25 at the top, it is your comment. It is just you are
1 referring to:
2 "Gerard Donaghy shot and killed while running away."
3 Did you draw that conclusion from the post mortem advice
4 you received from Dr McClean, or from something else?
5 A. I would suggest -- and it is no more than that, not
6 being able to look back on it at the moment -- that
7 would be a combination of post mortem evidence and
8 eyewitness evidence, but I could not say beyond that.
9 Q. You were actually broadcasting, your own words --
10 A. Yes.
11 Q. "Gerard Donaghy shot and killed while running away"?
12 A. Exactly.
13 Q. Did you know where his wound was?
14 A. Without checking, off-hand I cannot.
15 Q. While we are on the page, at the bottom section, please,
16 again you, Mr Thomson, there, the second area of fresh
17 information, the last line: the audio tape you played to
18 a ballistic expert, who has now retired from the Army?
19 A. That suggests the possibility there is not actually a
20 written report, because I think what we must have done
21 is taken somebody along to listen to --
22 Q. The ballistics expert or the man you told everybody was
23 a ballistics expert who had retired from the Army was
24 the consultant surgeon from Wales?
25 A. No, no, that is somebody completely different.
1 Q. It is?
2 A. Absolutely.
3 Q. "We took an audio recording of the day to a forensic
4 sound laboratory."
5 That is a different man, that is a man --
6 A. I believe it is, yes. Obviously there are two
7 individuals, there is the technician whose job it is
8 essentially to -- I am floundering here, not being
9 a technical expert, but essentially to put the sound
10 recording on to computer, so that effectively, if you
11 like, you can see the reports of the weapons.
12 I mean, you have seen the video tape --
13 Q. It is just the identity of the expert. Again, if that
14 is the same man you can, I am sure, confirm who he is,
15 you can look at your records?
16 A. Yes.
17 Q. The last matter on the broadcast, if only in fairness to
18 the ex-Prime Minister, could we look at X1.6.56. Again
19 I remind myself and you that it is John Snow speaking
20 the lines:
21 "The contention now, Sir Edward, is that there is
22 now new evidence which Lord Widgery never had, that
23 particularly there was another British army battalion
24 involved that was unknown at the time and was not
25 revealed to him."
1 What do you understand John Snow was putting in
2 order to get an answer from the retired Prime Minister,
3 of an "unknown" battalion that was not known to
4 Lord Widgery?
5 A. There is a number of ways that you could interpret that,
6 I mean simply one, off the top of the head, at least 45
7 eyewitnesses references to firing from the walls were
8 never included on that day.
9 Q. I must have asked the question badly again: to what
10 battalion was your programme referring Sir Edward Heath
11 as a battalion involved that was unknown at the time;
12 which battalion was it you were referring to as having
13 been unknown at the time?
14 A. Unknown at the time, I suspect, well, I think that is
15 probably not true, that it was unknown at the time.
16 I mean I am trespassing here, I have no responsibility,
17 you know, for these words. I am quite happy to account
18 for my own, it is possible there is a slip there,
19 because clearly the presence of the Royal Anglians was
20 known to Widgery, albeit somewhat buried since.
21 Q. You say it is a slip, it is a slip in the culminating
22 programme, it almost precisely repeats your own words
23 with which you introduced the whole of this series or
24 programmes, that there were secret forces, unknown at
25 the time?
1 A. I do not think we use the phrase "unknown" at the time,
2 I think there were secret forces. I think "secret" is a
3 perfectly adequate way to describe them, given the way
4 their presence has been covered up systematically ever
5 since.
6 Q. A very few matters on your statement, if you could help
7 with the sequence, Mr Thomson. Could we look again,
8 please, unless there is anything else that you would
9 want me to draw my attention to the transcript -- there
10 is nothing I have left out that has been unfair to you?
11 A. There were a number of matters you said to my colleague
12 yesterday, and indeed this morning, which were extremely
13 unfair, frankly disgraceful, and I have to say I was
14 very surprised she was put through an experience like
15 that in a Tribunal we were warned was non-adversarial.
16 But that is something for you to consider.
17 Q. We have your comment, we invited you to make it, if that
18 is how you feel.
19 Could you look at your statement at M84.1. The
20 sequence of events, Mr Thomson, paragraph 3, secondly,
21 you are able to confirm the telephone conversations with
22 soldier A. You met him on three occasions?
23 A. Yes.
24 Q. But the notes you helpfully transcribe for us start with
25 the first telephone conversation you had with him?
1 A. Yes.
2 Q. I take you to them if you need them, I think you
3 probably have them fresh in your mind. The question
4 I had was this: the telephone call at which you recorded
5 brief notes of what he said, was that a call made to
6 both you and to Lena Ferguson?
7 A. I suspect -- I honestly cannot remember, it could have
8 been either -- he could have spoken first to Lena.
9 I have a recollection -- and it is only that -- that he
10 spoke to Lena and then Lena put him on to me, perhaps to
11 break the ice in some way, but it is only recollection.
12 Q. It may be a mistake, and correct it if you think it is:
13 you told the Tribunal this afternoon in reference to
14 Mr Clarke that Lena was making the bulk of the notes?
15 A. That is correct, yes.
16 Q. You are fairly confident she had notes of the first
17 telephone conversation?
18 A. I would not be confident of whether she was actually
19 taking notes at all; she may have been, she may not have
20 been.
21 Q. Your answer to the Tribunal just an hour ago was "Lena
22 was making the bulk of the notes here"?
23 A. Indeed, I did not contradict that in the last answer.
24 Q. You just said you did not know whether she was or not.
25 I will ask the question again.
1 A. No, you have become confused. What I have said with
2 regard to our note-taking process, if I can put it this
3 way, Lena was very much responsible when we met this
4 individual for taking down more extensive notes. I, if
5 you like, it was a kind of agreed role, I was very much
6 there to perhaps jolly him along, if I can put it that
7 way, and encourage him to gain a little bit of
8 confidence with us. Therefore, as I think you have seen
9 this afternoon, my notes were mere jottings, albeit some
10 of them I am unable, sadly, to bring today.
11 Q. After you had encouraged him successfully, he came to
12 meet you, which is what you refer to, if you would like
13 to look at the passage at M84.7?
14 A. We met, yes.
15 Q. That is right, is it, you say at M84.7, the top
16 paragraph, five lines down:
17 "From the start of our conversations ... it was hard
18 to get soldier A to come and meet us, but after
19 discussions and encouragement he agreed to."
20 He did come and meet you, did he?
21 A. Well, we met, let us leave it at that, shall we?
22 Q. Let us answer my question, Mr Thomson, shall we?
23 A. I just did.
24 Q. Did he come to meet you?
25 A. We met.
1 Q. I will ask the question once again.
2 LORD SAVILLE: I am not quite sure of the purpose of the
3 question, Mr Glasgow.
4 A. Let me help you out. The purpose is quite obvious: if
5 I describe the situation as to who met who where -- if
6 he came to meet us you would immediately assume, for
7 instance, he came to ITN. We immediately and quite
8 obviously get into a process whereby we can get towards
9 giving information away as regards this man's identity,
10 which I am simply not prepared to do.
11 MR GLASGOW: I am not suggesting that you should for one
12 moment.
13 A. But that is unfortunately where it led, was it not?
14 Q. It was not leading there at all. It is simply whether
15 you went off to somewhere to meet him -- I do not ask
16 why or where -- whether you think you went to meet him
17 or he came to you, wherever it was.
18 LORD SAVILLE: Again, I am not quite sure of the relevance
19 of the question?
20 MR GLASGOW: Simply whether we are talking about the same
21 conversation, the same meeting with Ms Ferguson, because
22 she told you this morning that they went to an
23 undisclosed address to meet him and I am wondering
24 whether this is the same meeting, because it may be
25 important to know what notes refer to what meeting.
1 A. Mr Glasgow, forgive me. If Lena has said that we went
2 to an undisclosed address to meet him, I am perfectly
3 prepared to go along with that.
4 Q. I will not press it. The last matter, Mr Thomson, is on
5 M84.2. It is just paragraph 6, your own claim for the
6 confidentiality of the source. What you say is:
7 "I am unable to disclose the identity of that source
8 to the Tribunal or any other third party whatsoever."
9 That remains your position, does it? You would not
10 share the material you have redacted from the Tribunal
11 to anybody else at all?
12 A. I would not.
13 Q. And have not?
14 A. And have not. I mean, I place it on record, I dearly
15 wish that soldier A, indeed all the soldiers, would
16 release us from this obligation.
17 Q. As you know, so do we and we will be making a submission
18 to that effect. Thank you very much.
19 Questioned by LORD GIFFORD
20 LORD GIFFORD: Before Mr Clarke asks questions, may I make
21 you one geographical point and ask, possibly, one
22 question arising from it.
23 Mr Clarke had shown you photograph 210.2, which
24 perhaps we should have on the screen. I think we
25 probably all are aware of this, but for the record, sir,
1 the houses -- if I can have control -- which Mr Clarke
2 pointed to there were not there on Bloody Sunday. This
3 photograph is clearly taken at an earlier point and
4 perhaps I could illustrate that by showing photograph
5 224 and can we highlight the bottom right-hand area.
6 I think we can see right down at the bottom here that
7 there is now only one building standing, with its gable
8 facing west and the row of houses which had been here
9 have gone.
10 LORD SAVILLE: The row of houses to the north of the one
11 that remains appear to have gone and you are satisfied
12 that this is a photograph that accurately represents the
13 position on Bloody Sunday?
14 LORD GIFFORD: I believe so, sir, and it certainly fits in
15 with P482, which also appears to show a single building.
16 LORD SAVILLE: 482, of course, is end on, so it is not
17 entirely clear, no.
18 LORD GIFFORD: Sir, comparing 210.2 and 224 and particularly
19 the process of building along Westgate Street, the Old
20 Bog Road, one can readily see that 210.3 is taken
21 substantially earlier in time. I do not want to weary
22 the Tribunal.
23 LORD SAVILLE: I think if necessary we can do more research
24 and debate on this. One point you do have in your
25 favour is that you have the building hut at the
1 beginning of the Old Bog Road, which I think we all know
2 was there on 30th January 1972.
3 You may well be right, Lord Gifford, but I would
4 invite everybody to think about whether or not we can
5 confirm that from any other photographs or sources.
6 LORD GIFFORD: Certainly 210.3 is one of a sequence of
7 photographs taken, we were told, I think, fairly shortly
8 before by Army --
9 LORD SAVILLE: I simply cannot remember the provenance of
10 this particular photograph at the moment. When you have
11 a moment perhaps you could check that out. As I say,
12 I invite everybody else to do the same. You might very
13 well be right, I rather think you are at the moment, but
14 we better check it.
15 LORD GIFFORD: I will certainly check it, but I am
16 100 per cent sure I am right about the buildings on
17 210.2 not being present.
18 If I can follow that up, Mr Thomson, with
19 a question, if you have been following it. Bearing in
20 mind some notes -- perhaps we better look at it again,
21 M25.45. You remember Ms Ferguson being asked about
22 these, they were an attempt to describe the building in
23 question and with reference to two to three houses all
24 identical.
25 Going back if I may to photograph 224, the same
1 area, bearing in mind your own observation as well, it
2 does begin to look as if one of these terraces which
3 have several houses is the one that you felt he was
4 indicating, rather than the single house which we now
5 know was standing on its own?
6 A. I certainly remember him referring, as Lena has noted
7 there, to a series of house, as he put it "going down
8 the hill". This is a very interesting photograph,
9 I have not seen it before, but it does -- I agree, him
10 having given that description to Lena, that would appear
11 to tie it to those houses rather the single one, but
12 whether his memory is that reliable in terms of
13 discerning between a terrace and an individual building,
14 I hesitate to say.
15 Q. It would mean that the photograph that you showed on the
16 television which was of the single house would not have
17 been accurate?
18 A. It would have been and equally it could have been
19 accurate and I believe it was accurate at the time of
20 broadcast.
21 Q. I would not want to take it further. Might I, sir,
22 before I sit down, also say that we would not agree with
23 Mr Glasgow that the barricade or at least part of it was
24 not visible from the single house or indeed from the
25 Nailor's Row houses. It is a matter which is not easy
1 to establish, but certainly Mr Glasgow mentioned twice
2 that the barricade would not be visible from what I have
3 called the single house. We are not disposed to agree
4 that. It may be we have to examine it further in due
5 course.
6 LORD SAVILLE: Thank you.
7 MR CLARKE: You were asked some questions about what you did
8 in relation to a sound expert and a ballistics expert.
9 Can we have on the screen M39A.1. This is a statement
10 the Tribunal has from a man called Simon Heyworth,
11 a sound engineer by profession, currently chief sound
12 engineer at Chop 'em Out Engineering and facilities
13 director for the Sanctuary Group and he describes in it
14 how he was approached by ITN -- this is paragraph 4 --
15 to analyse an analogue tape-recording made by Fulvio and
16 Susan Grimaldi of the events of Sunday, 30th January.
17 Do those names ring a bell, either Heyworth or chop 'em
18 out engineering?
19 A. Yes, Heyworth rings a bell.
20 Q. Heyworth?
21 A. Yes.
22 Q. If we go over the page to M39A.2. In paragraph 9,
23 having described how he had made a digital audio tape
24 taking out the hiss from the recording, he says:
25 "I was then introduced to a firearm expert by ITN,
1 whose name I cannot now recall. This expert came to
2 listen to the DAT tape and was able to identify what the
3 sounds of it were. He identified what he believed to be
4 the sounds of both SLR Army rifle shots and also low
5 velocity pistol rounds. Not being familiar with the
6 sound of various weapons myself, his input was
7 crucial ...
8 "After I had completed my work, ITN came to film an
9 interview with me."
10 We have seen him in his studio on the film:
11 "As I recall, the firearms expert did not wish to
12 appear on camera so I was interviewed without the
13 firearms expert being present. I understand this
14 interview was shown [as indeed it was] on Channel 4 ...
15 In usual circumstances I would also provide a written
16 report summarising the results of the work, but in this
17 case ITN simply required an interview."
18 Do you have any reason to doubt that is correct?
19 A. No, I am very grateful you have reminded me of the name.
20 I am sorry I was not able to help Mr Glasgow with that.
21 Q. Can you remember who the firearms expert was?
22 A. No. I thought that was coming, I honestly cannot
23 remember who he was.
24 Q. Do you think you might have a record somewhere?
25 A. I may have a record, but I cannot call his name to mind
1 at the moment, forgive me.
2 Q. Or where you got him from?
3 A. I think Lena may be able to help with where he came
4 from, where he worked, but I cannot remember his name.
5 Q. We can ask independently.
6 Lastly, the notes which you made and which you very
7 kindly typed out, do you still have them, are they in
8 your possession?
9 A. Yes, they are.
10 Q. So far as they are concerned, are you prepared to
11 undertake to keep them safe and not to destroy them or
12 part with them until the conclusion of the Inquiry?
13 A. Yes. (Witness nodding)
14 Q. Those are all my questions?
15 LORD SAVILLE: Mr Thomson, as you probably understand, we
16 are now going to get on to this legal question as to
17 whether or not we should direct you --
18 A. I wonder before you do that, could I make a few very
19 brief closing remarks, is that possible.
20 LORD SAVILLE: Let us hear what you have to say.
21 A. Simply because I just -- obviously, the nature of the
22 Inquiry being forensic and detailed, I just wanted the
23 Inquiry to know in no uncertain terms, and I speak for
24 Lena as well as myself, that we wholeheartedly support
25 what this Inquiry is endeavouring to do and I think, you
1 know, few people regret more than Lena and I the fact
2 that these soldiers are not coming forward.
3 I do not say that simply because the person
4 inconvenienced is involved with us, I say that simply
5 because it is imperative, and regardless of time and
6 expense, that somewhere, somehow we get to the bottom of
7 what happened on Bloody Sunday and to that end -- and
8 I do again speak for Lena -- we are ready and willing to
9 co-operate absolutely as far as we can, up to the point
10 of compromising the anonymity.
11 LORD SAVILLE: Certainly as far as the Tribunal is
12 concerned we had automatically assumed that was the
13 case. We quite agree with you this difficult question
14 of whether confidentiality provided by a journalist is
15 overridden is one of great importance both to
16 journalists and of course to this Inquiry.
17 So we have no doubt that you are ready, willing and
18 able, subject to that caveat, to do your best to assist
19 us. What I was about to say was that we are now
20 embarking on this legal submission which may result --
21 until we have heard it of course we cannot say -- in
22 calling you and Ms Mr Thomson back and directing you to
23 answer a number of questions, so I will have to ask you
24 for the time being to stay and, indeed, in effect to
25 remain as a witness who has not finished his evidence
1 yet and, accordingly as I asked Ms Mr Thomson and as
2 I have asked witnesses in similar circumstances, I would
3 ask you not to discuss the evidence you have given until
4 we have completed the process.
5 What we will do now, Mr Clarke, is to rise for 10
6 minutes to give our LiveNote reporter a rest and then
7 proceed with the legal submissions.
8 MR CLARKE: I do not know how many of my learned friends
9 other than Mr Caldecott wish to say anything it, might
10 help for the timing purposes if we were to find out.
11 LORD SAVILLE: Perhaps you should make some inquiries when
12 I have risen and indicate after that what sort of time
13 we are talking about.
14 Mr Caldecott, I wonder if you could, with
15 Ms Mr Thomson and indeed -- Ms Ferguson and indeed
16 Mr Thomson's assistance, if they are willing and
17 prepared to give it, to draft out an undertaking along
18 the lines that I understand both of them are prepared to
19 give so that we have that in writing and both they and
20 the Inquiry are entirely clear on what they are prepared
21 to undertake.
22 MR CALDECOTT: Could I do it in manuscript and give it to
23 someone to type that up?
24 LORD SAVILLE: In the first case of course it is a matter
25 as to whether Ms Ferguson and Mr Thomson are prepared to
1 utilise your services for that purpose. If they are,
2 then it seemed to me you were in the firing line for
3 producing a draft. If they are happy with that then you
4 can produce it to us in any form you like, really.
5 Thank you.
6 It just remains to say, Mr MacDonald, I have not
7 forgotten your proposal, it is still in our minds, but
8 we will leave it over for the time being. If I appear
9 to be omitting it at any stage, please get to your feet.
10 (3.10 pm)
11 (A short break)
12 (3.50 pm)
13 LORD SAVILLE: As I understand it, Mr Clarke suggested
14 yesterday morning when you introduced this topic, having
15 got to this stage, those apart from Mr Caldecott who
16 wanted to make submissions on the matter would have now
17 the opportunity to make those submissions. If that is
18 still regarded as an appropriate course to take, who
19 would like to start?
20 Submissions by MR MACDONALD
21 MR MACDONALD: On behalf of Madden & Finucane's client we
22 have two substantive submissions to make. We would
23 restate our position, which is that the interests of
24 justice in this particular matter do make it necessary
25 that these sources and materials be disclosed.
1 The only other matter we would respectfully remind
2 the Inquiry of is, of course this is an investigation
3 that would be governed by Article 2 of the European
4 Convention. Those are factors --
5 LORD SAVILLE: I will have that in mind, yes.
6 Submissions by LORD GIFFORD
7 LORD GIFFORD: Sir, as I said to Lena Ferguson, we recognise
8 the valuable work that was done by them and by Channel 4
9 News, ITN. Having said that, I emphatically agree on
10 behalf of the Wray family with Mr Clarke on what he said
11 as to the importance of the Tribunal knowing who these
12 soldiers are and, if possible, securing their attendance
13 so we can hear their evidence in full. All are of
14 potential importance and, as Mr Clarke said, it is not
15 easy in some cases to know how crucial or decisive their
16 evidence will be.
17 We will certainly be not minded to exclude any of
18 the four, that is the A, C, D and E, from the ambit in
19 the order. We certainly seek the evidence from whoever
20 is able to give it whether we agree with what they say
21 or not.
22 Having said that, I think it is obvious that the
23 evidence of Soldier C has a particular importance and
24 goes to the central issues before this Tribunal. You
25 heard from Ms Ferguson that C was a marksman, a member
1 of the 22nd Light Air Division, and that his job was to
2 scan for IRA gunmen.
3 For reasons which are not at all clear and
4 performing a role which is not at all clear, he appears
5 to have been within, in his words "feet or yards" of the
6 1st Battalion of the Parachute Regiment when they
7 entered the Bogside. He appears to have witnessed the
8 deaths of some of the deceased.
9 If I can just select two examples from the material
10 that we know that he is able to amplify. May I, first,
11 take from the transmitted material a passage at X1.6.36
12 and the passage at the second half of the page from C's
13 evidence:
14 "22LAD I had assumed they were being fired on from
15 somewhere, but I did not see anyone armed, I did not
16 have any rounds fired at me anyway and I was in amongst
17 them. I did not have any rounds fired at me and I was
18 not aware that they were being fired on. I was just
19 yards away, feet sometimes. If there had been incoming
20 fire, I would have heard it."
21 Can we add to that a section from the notes of the
22 untransmitted material at M25.29, the passage at 10.48:
23 "Saw 3 civilians go down. Near RV flats. In or
24 near the Rossville Flats, in the vicinity."
25 Over the page, towards the top:
1 "When I went in following Paras rounding up people,
2 going on Paras, running in. Saw civilians go down.
3 Scanned windows. Did not see anyone to fire at."
4 It is clear, sir, it is potentially a piece of
5 evidence from a member of another regiment who was in
6 the company of, close to some of the key soldiers who
7 fired on Bloody Sunday. It is absolutely essential for
8 us to know from him where he was, who he was with, try
9 to link him to any particular platoons who went in on
10 the day and to see what view he would have had in order
11 to say the things that he did. I agree also with
12 Mr Clarke that the material, as we now have it, can only
13 be of limited value.
14 In view of that -- and I do not weary the Tribunal
15 by repeating any of the other important passages of what
16 he and others say -- we do consider that this is a case
17 where the Tribunal needs to make an order for the
18 disclosure of the sources.
19 Having said that, I would want to echo what was said
20 today by Mr Thomson, that the real moral responsibility
21 for the present dilemma the Tribunal and indeed the
22 journalists are in, rests upon the soldiers themselves.
23 I say that not to invite the Tribunal to delay
24 making any order. I would concur with Mr Clarke that
25 one cannot see clear avenues for the discovery of the
1 identity of these soldiers to any other means. However,
2 there will undoubtedly between the making of any order
3 and any final implementation of it be the possibilities
4 of delay, and I would say on behalf of my clients
5 something which would really be destined more for the
6 ears of the soldiers themselves:
7 You have, I would say to them, done a part of your
8 moral duty; you were disturbed by what you saw in the
9 Channel 4 reports; one of you said you froze; another of
10 you said that it sent shivers down your spine, and you
11 contacted Channel 4 News because your conscience
12 demanded it; you had something important to say and you
13 hoped that by making it public that would lead to
14 something being done to ensure that the whole truth
15 about Bloody Sunday was eventually made known, and of
16 course something has been done in part because of what
17 you did -- this Inquiry has been set up.
18 At the time you spoke to Channel 4 News you had no
19 protection, or little protection, and were justified in
20 remaining completely unidentified. But what we do say
21 to you is that you cannot in conscience stop there. You
22 cannot do half your duty. We have, we suggest, a duty
23 to the families who are so desperate to know the whole
24 truth; to the wider public; to the journalists, indeed,
25 who may face imprisonment, rather than break their
1 undertakings to you. And you have a duty to your
2 conscience.
3 Sir, it is clear, we all know, that speaking against
4 the grain is not easy. Some civilian witnesses before
5 this Inquiry have gone against the grain, saying things
6 that they know that some of their peers and fellows
7 would not wish them to say; they have spoken about
8 wrongful acts by civilian gunmen.
9 Soldiers are needed in this Inquiry to speak out
10 too. The search for truth and justice depends on those
11 who go against the grain and, in this case, every
12 possible protection will now be afforded to you if you
13 do so. We appeal to you, therefore, to release the
14 journalists from their undertaking.
15 Submissions by MS McDERMOTT
16 MS McDERMOTT: Sir, may I just say on behalf of the Doherty
17 family that we support what both my learned friends have
18 said and submit that the public interest in disclosure
19 outweighs the interest in the confidentiality of sources
20 and only the Tribunal, we respectfully say, can make
21 that assessment, as indeed is acknowledged in the
22 supplemental submission of Mr Caldecott, and
23 particularly in our submission where the identities of
24 these soldiers will not become public in any event it is
25 all the more clear that the balance of justice lies in
1 disclosure being made to the Inquiry.
2 Submissions by MR KENNEDY
3 MR KENNEDY: Sir, on behalf of my clients, I support those
4 submissions.
5 Submissions by MR GLASGOW
6 MR GLASGOW: Very shortly, sir. I could not hope to improve
7 on the analysis of the law by my learned friend
8 Mr Clarke and we do not seek to take your time in doing
9 so.
10 Could I complete the history very slightly from our
11 clients' point of view and add one matter on the
12 question of Soldier D? You will remember, sir, that
13 after you made your ruling, which we would invite you
14 not to go back on, you invited submissions from the
15 interested parties in advance of the media witnesses
16 generally being called, just to complete the history,
17 because it was anticipated, I think, that this problem
18 might arise with the Sunday Times material, and it did
19 not.
20 You have the submissions we respectfully put in at
21 that stage and, not for the first time, I am greatly
22 indebted to my learned friend Mr David Lloyd Jones and
23 Mr Michael Bools for the submission they put before you
24 very briefly in writing on 22nd February 2002, and
25 I would respectfully invite your attention at an
1 appropriate time to that analysis which, of course we
2 accept, does not differ at all from the analysis of
3 Mr Clarke and I do not seek to add to that.
4 Insofar as it is relevant, I would respectfully
5 remind you and everybody else that the stand that we
6 have taken has been the same from the outset. Even in
7 the case of our own clients, who were said to have
8 spoken to journalists, we made it plain that we sought
9 no exception in their case, we invited waiver, we gave
10 that waiver, we invited Peter Taylor and everybody else
11 to disclose all the material that they had. That has
12 always been our position; it is and it always will be.
13 We would respectfully invite you to make the same
14 order now that you are in the full possession, or fuller
15 possession of the facts in the case of soldier D and
16 would respectfully refer you back -- at an appropriate
17 time, not now of course -- to the reasons you gave for
18 a different order in his case, which were at
19 paragraph 73 of your original order --
20 LORD SAVILLE: I have that well in mind, but I could do
21 with some assistance. If you could summarise for us, in
22 relation to soldier D, specifically why you say the
23 situation has now changed?
24 MR GLASGOW: The reasons why we say it has changed is that
25 you made your order -- at paragraph 74 I think I should
1 have said, page 30 -- on two basis, both of which were
2 wholly correct: that the evidence that D appeared to be
3 in a position to give was wholly unspecific, you having
4 rightly set out the two grounds for that in
5 paragraph 42C where you had refer to the fact he had
6 said, according to the note, that if the Government
7 apologised he would take out Irish citizenship, taking
8 the matter as shortly as I may.
9 Secondly, you rightly recorded at your
10 paragraph 71.4 that the tenor of these remarks was there
11 was nothing for which the Government should apologise,
12 and you rightly describe those as wholly unspecific.
13 We now know, on the basis of the information that
14 has been disclosed today, that in fact soldier D had
15 addressed evidence on a number of matters which,
16 although not alone, not unique, are of crucial
17 importance. The most important examples are perhaps
18 found when you come to look at it at M25.58. I remind
19 you, they are of soldiers coming under fire in
20 Chamberlain Street, a matter of which you do not have
21 a lot of evidence; of single shots and automatic fire
22 and Support Company returning fire.
23 Of course it is right to say that you have other
24 evidence which would support that and which is
25 consistent with that. If, in the unthinkable event that
1 you were going to say "we accept that evidence, we do
2 not need any more evidence in order to accept that", so
3 be it, but it would be unthinkable that it would be
4 right for you to take that position, because you could
5 not. You must have an open mind on that and therefore
6 a weighing exercise must be done at some stage and this
7 evidence particularly impressed the journalists
8 concerned as being credible and impressive at least
9 ought to be taken account of in that weighing exercise,
10 particularly, as I submit, there are features which are
11 particularly crucial.
12 But it goes a little further than that, because
13 those who seek to resist the summons that you made know
14 two things: first of all, they know that the order you
15 made in 1999 was made on a false premise because you
16 simply had not been told the true position.
17 Secondly, of course, they know that they have been
18 in breach of that order, we would submit, ever since it
19 was made, because the documentation that was withheld,
20 we would respectfully submit -- sorry it has caused
21 offence, that is a matter some of us have to burden --
22 could not conceivably have been redacted in order to
23 conceal identity, so it always has been known that that
24 crucial material, which was of substance and could not
25 conceivably have attracted the description that you
1 rightly gave when you thought you had the material that
2 was relevant, it has been withheld from you and they
3 have sat and watched a wholly false position put before
4 you and have sat on it ever since and are now indignant
5 that we complain.
6 We do respectfully support the order that you seek
7 through your Counsel and which has eloquently been
8 spoken to by all others in the room. I do not think
9 I can add anything without repeating what Mr Clarke has
10 said.
11 Submissions by MR ELIAS
12 MR ELIAS: Two matters shortly: we, too, would greatly
13 endorse the analysis of my learned friend Mr Clarke and
14 for those reasons ask that disclosure of sources be
15 ordered here.
16 Could I put one factual gloss upon it, perhaps
17 taking the case of the witness E as an example? We did
18 submit to you in opening our case that perhaps views
19 here had become polarised and might be polarised at this
20 Inquiry.
21 On the face of the notes that relate to Soldier E,
22 if he be a soldier as we believe him to be, it would
23 seem he might be one of those, if I might use the term,
24 middle of the road soldiers who is certainly not putting
25 it in black and white terms.
1 The importance of calling such a witness, we submit,
2 is obvious and reinforces those submissions that were
3 made to you yesterday.
4 I make a second point, that is this: the Tribunal is
5 of course dealing with an application to set aside
6 a witness summons. The summons required the production
7 of all notes and other written records of all
8 interviews.
9 Before we get to the question of sources, with
10 respect, we submit the Tribunal has to consider whether
11 that summons has been complied with in terms of the
12 material that does not fall within threat of disclosing
13 sources.
14 You will know, we submit from the evidence, that at
15 the first attempt the Tribunal was provided with very
16 little and much less than it might have been properly
17 provided with.
18 At the second attempt overnight, from the evidence
19 you have heard today, we submit it is perfectly plain
20 that in relation to Soldiers A and E, there are passages
21 that must be in notes that you simply have not seen and
22 we have not seen.
23 We would submit that the Tribunal should, at the
24 least, require that those notes be looked at with care
25 again, lest the exercise that has been carried out
1 overnight, speedily and not with all proper care, to
2 ascertain whether such notes do exist, but it may be, if
3 the Tribunal, having regard to the history, believes
4 that perhaps there has not been the bona fide attempt to
5 produce the material that the Tribunal is entitled to,
6 whatever the situation in regard to the sources is
7 concerned, the Tribunal should insist that the material
8 is looked at, at least by Counsel to the Tribunal,
9 suitably redacted, so that the original notebooks, 6, 8
10 or 10, can be examined and it can be demonstrated that
11 this is all that exists.
12 We submit the evidence at present plainly discloses
13 that not all notes and other written records have been
14 produced, leaving aside the question of sources.
15 Those are our submissions.
16 LORD SAVILLE: Mr Caldecott, I think it is probably now
17 your turn.
18 Submissions by MR CALDECOTT
19 MR CALDECOTT: It is perfectly apparent I would not want
20 this issue decided on a show of hands. That is not a
21 facetious observation, it reflects the fact that you
22 have heard a great number of submissions about the
23 public interest of this Tribunal having been best
24 evidenced.
25 You have, however, heard almost nothing at all about
1 the countervailing public interest which has to be
2 measured, which is the public interest in the free flow
3 of information to the press, especially information
4 which tends to expose significant wrong-doing.
5 Since the Tribunal's task is to balance these two
6 public interests, it is obviously right that I must
7 spend some time defining the true nature and purpose of
8 this countervailing public interest to which, so far, so
9 little deference has been paid.
10 LORD SAVILLE: I want to know where we are going, I am not
11 trying to stop you in any way.
12 We have of course, in October 1999, set out our
13 understanding of the law and, indeed, our conclusion
14 which, subject to one point, led to -- subject to two
15 points led to the conclusion that this material should
16 be disclosed, the two points being: soldier D, on the
17 basis of the information we then had, and secondly, what
18 then appeared to be a prospect, that we might be able to
19 obtain the information by other means.
20 Are you now inviting us to reconsider that
21 reasoning?
22 MR CALDECOTT: In one sense I am certainly inviting you,
23 sir, to look afresh at the problem, in the sense that
24 there have been recent cases under Article 10, which
25 I would wish to draw your attention to. You will see
1 from my supplemental skeleton that I have not sought to
2 recover all the old ground and I am certainly not
3 proposing to repeat myself, but there is no order
4 currently in place, and I certainly would ask that
5 I should make and be able to make submissions, as it
6 were, on an unconstricted ground in seeking to define
7 this countervailing public interest as fully as I may.
8 LORD SAVILLE: I understand that, but at the same time it
9 would assist me if you could identify any part or parts
10 of what we said in October 1999 which you say are either
11 wrong or have been overtaken by events such as Article
12 10.
13 MR CALDECOTT: Sir, can I say this: what I would say
14 about October rulings is that there is actually
15 extremely little in terms of analysis of the
16 countervailing public interest in the freedom of the
17 press.
18 There is also very little analysis of the chilling
19 effect and what really it means in circumstances such as
20 this. I appreciate it is said that it has been taken
21 into account, but there is a great deal of analysis of
22 the importance to the Inquiry of the evidence of
23 Soldiers A to E, as the matter then stood, that there
24 is, with respect, precious little about the chilling
25 effect, about role of the press, about the consequence
1 this order might have and all the other material factors
2 which we say the Tribunal should have regard to.
3 I have to put it that bluntly because I have
4 a concern that in more recent judgments the expiration
5 of the countervailing interest has been, if I may put it
6 respectfully, far more thorough and my clients are
7 concerned that there should be a very close examination
8 of the chilling effect in this case --
9 LORD SAVILLE: I follow what you are saying. I am not at
10 the moment entirely clear as to what form this analysis
11 should have taken and what --
12 MR CALDECOTT: Inevitably, sir, it is a combination of
13 looking again at the evidence put in on behalf of ITN,
14 and in particular looking at the more recent cases in
15 combination.
16 LORD SAVILLE: One looks at them and then says, what, that
17 the chilling effect is important or very important or --
18 MR CALDECOTT: I would like to develop rather more about
19 what the chilling effect is about, what it actually
20 means.
21 For example, if I can find the paragraph
22 instinctively. If one looks at paragraph 75(v), the
23 analysis of the chilling effect in 75(v), which I think
24 is the only paragraph in the rulings which refers to it,
25 treats it as if it only really bears on Mr Taylor's
1 position when considering an order against him.
2 We say that is simply a mistake in law of approach.
3 The chilling effect has to be analysed on a far wider
4 basis than that in accordance with the authorities.
5 LORD SAVILLE: I am sorry, what do you mean by "analysed";
6 what is said is, and said with great justification
7 is: if a court or Tribunal orders that the confidence be
8 broken, which is the way you put it, that will have
9 a chilling effect in the sense of making it less likely,
10 or indeed very much less likely that in future cases or
11 future similar cases informants will be prepared to come
12 forward. Fair enough, but what further analysis is
13 required?
14 MR CALDECOTT: I again repeat the point that that is not
15 actually -- the general concern about the chilling
16 effect is not something which actually figures in the
17 judgment, it is put very much in terms of Mr Taylor's
18 journalism.
19 LORD SAVILLE: Is there more to add than that which I have
20 just said by way of this so-called analysis? I mean, we
21 understand that and at paragraph 58 we say we have taken
22 into account the potential chilling effect of making
23 orders for the disclosure of sources.
24 If you are complaining that we did not explain what
25 the chilling effect was, we are sorry about that, but is
1 it not that which I have just described?
2 MR CALDECOTT: In a nutshell it is, but on behalf of the
3 media facing an order of this kind it would seem right
4 I should be entitled to draw attention to recent
5 judicial dicta about the importance of a press in
6 a democracy and, indeed, that largely, as Lord Bingham
7 put it, the root to the exposure of wrong-doing is
8 largely through the media, and also one has to look at
9 the judicial dictum which exists -- and I accept these
10 were referred to in our original submissions -- to the
11 effect that the greater the significance of the
12 information, the greater the sources should be
13 protected.
14 One of the problems of the present case is that the
15 geography is entirely different to any other decided
16 case, in that the information is of the highest order
17 public interest material; the source, on the face of it,
18 and certainly as it would have appeared to the
19 journalists, was acting from the highest motives and yet
20 it is said that the duty of confidentiality which
21 allowed their information to reach the public, should be
22 stifled. If you stifle the press from mentioning this
23 material in the first place, you effectively stifle the
24 inquirial form of investigation to which that material
25 can contribute.
1 These are all points of immense constitutional
2 importance. They can be summarised, no doubt, in
3 a couple of lines, but they do, in my submission, merit
4 development.
5 MR TOOHEY: Mr Caldecott, speaking for myself at any rate,
6 and I was not a member of the Tribunal when the ruling
7 was handed down, I am interested in your comment about
8 the importance of the information which is sought and
9 how one deals with that.
10 This is the passage, I take it, in the judgment of
11 Lord Bridge, is it, in Ex Limited v Morgan Grampian,
12 that:
13 "The greater the legitimate public interest in the
14 information which the source has given to the publisher
15 or intended publisher, the greater will be the
16 importance of protecting the source."
17 MR CALDECOTT: Yes.
18 MR TOOHEY: I just have some difficulty with that in how
19 that finds its way into the balancing process, because
20 on the basis of the authorities, and subject to any of
21 the most recent authorities which may take a different
22 approach, there is this balancing exercise to be carried
23 out of which the courts have spoken.
24 But then in carrying out that balancing exercise
25 somehow this passage suggests that you place into the
1 scales the importance of the public interest in the
2 information which is sought.
3 MR CALDECOTT: Yes.
4 MR TOOHEY: And that, in a sense which presents some
5 difficulty to me, it then tips the scales down on one
6 side. Might it not equally be argued that the greater
7 the importance of the information sought to be obtained,
8 but where a tribunal such as this Tribunal is
9 constituted to carry out, by Parliament, an inquiry into
10 particular events and circumstances that that is
11 a factor to place in the scales with the consequence
12 that it tends to tip it the other way.
13 MR CALDECOTT: With respect, I think you have put your
14 finger on why this is such a difficult case and why we
15 are concerned that the feeding in of Lord Bridges'
16 defining speech, it is generally regarded as being the
17 defining speech in relation to how this balancing
18 exercise is done.
19 There is another passage worth bearing in mind where
20 he is dealing with what happened --
21 LORD SAVILLE: You say the "feeding in", if you look at
22 what we said in October 1999 we did indeed feed those
23 very words into what we said.
24 MR CALDECOTT: Sir, I am just trying to meet the question
25 put to me, which I think, with respect, is a very
1 difficult and interesting question: why is it that Lord
2 Bridge says that the public interest weight or rating of
3 the information as received by the journalist should
4 weigh so heavily in relation to granting the journalist
5 or keeping the protection of the confidence?
6 The answer must be that the main approach to
7 section 10 must be to judge the stifling effect of an
8 order of disclosure in the context of the importance of
9 the information as reasonably perceived by the
10 journalist and/or indeed anybody else trying to assess
11 what in future the value of a confidence in
12 circumstances such as these would be.
13 There is another interesting dicta of
14 Lord Templeman, which we cited in 3.7 of our original
15 submissions, again from the Ex Limited case, where he
16 appears expressly to link in, as indeed logically one
17 must, the position of the journalist as to whether he
18 can or cannot offer an absolute undertaking in good
19 conscience, bearing in mind he cannot get the
20 information if he does not, with the question as to
21 whether or not section 10 protection should survive.
22 It is the top of page 7:
23 "This is not absolute immunity for a journalist to
24 conceal his sources. Such an absolute immunity would
25 enable the source or the journalist or both to make use
1 of any untrue, misleading or confidential information
2 with impunity. This means that the journalist is in
3 a dilemma. He wishes to encourage disclosure [and in
4 these words] but he cannot promise absolute immunity to
5 his source unless the information reveals crime or some
6 other iniquity."
7 Obviously one can talk about trivial iniquities and
8 trivial crime, and one imagines that what Lord Templeman
9 is dealing there with the highest order public
10 information.
11 Why does he take the approach of looking at the
12 answer at the end by reference to what the journalist
13 can do? Precisely because they are in fact mirror
14 images of same question, because the concern of the
15 section is that the more important the information, the
16 less appropriate it is to stifle its emergence into the
17 public domain.
18 I do not for a moment deny there is a difficult
19 tension of the kind that has just been highlighted to
20 me, I acknowledge that.
21 MR TOOHEY: But Mr Caldecott, the journalist can never
22 promise absolute immunity; given the language of
23 section 10, is this not also the dilemma?
24 MR CALDECOTT: I would respectfully suggest that may not be
25 right.
1 Suppose there is a case in which, objectively
2 viewed, a disclosure order should not be made. The
3 journalist would respectively then be right to give an
4 absolute undertaking because he correctly assessed the
5 public interest in disclosure.
6 If he gets the public interest wrong, that is his
7 problem. But what Lord Templeman is effectively saying
8 is: if the journalist correctly assesses the public
9 interest and gives the undertaking on that basis, that,
10 in a sense, is the reason why the order should not be
11 made.
12 The only reason I want to go to these later
13 authorities is that they do stress, in precisely this
14 same vein, the enormous importance of the media in terms
15 of an alternative root to the truth.
16 The problem my clients have is absolutely clear.
17 Entirely understandably this Tribunal, with enormous
18 resources, is conducting an extremely important and
19 forensically intensive Inquiry into what happened.
20 It is entirely understandable that looking, at first
21 sight, at ITN's far more limited resources that it may
22 be said, looking at those two routes to the truth, the
23 Tribunal's is more important. That in fact is a false
24 analogy, primarily for this reason: if the press cannot
25 disclose wrong-doing of this kind, there will be no
1 investigations and there will not be the process of
2 inquiry which stems from it.
3 That is why Lord Bingham stresses that wrong-doing
4 of this kind, largely, to quote his words, "emerges
5 through press activity".
6 It is a temporal -- it is the cause and the effect.
7 If you take away the cause in the future, you do not
8 have these sort of inquiries. I appreciate this is an
9 extremely frustrating submission for an Inquiry which,
10 for reasons we entirely understand, concerned to have
11 the best evidence, but it really is deserving of more,
12 and we respectfully say this more weight, the whole
13 notion of chilling effect and the route to the truth
14 which the media afford as an alternative public
15 interest.
16 LORD SAVILLE: On one view what you are saying could amount
17 to saying, "this chilling effect is of such enormous
18 importance that it must be given preponderance over
19 actually doing justice in a proper inquiry or court
20 proceedings", because that is what it could end up as.
21 MR CALDECOTT: One of the problems about this that one can
22 almost always phrase the question which suits the
23 particular public interest one is advocating. Another
24 way of looking at it is to say this: assume, which
25 appears to have been the case, Ms Ferguson and
1 Mr Thomson would never have received this information
2 but for giving the absolute undertaking of confidence
3 which they, after very careful thought with senior ITN
4 executives, thought it proper to give.
5 Assume for the moment that it was right for them to
6 do that, as journalists carrying out their proper
7 function in a modern democracy. If it was right for
8 them to do that, there is a real difficulty -- applying
9 Lord Templeman's approach -- with then saying that the
10 confidentiality should be overridden, because in the
11 identical case -- not in detail, but in type that then
12 emerges, they cannot give the undertaking and the
13 information does not emerge --
14 LORD SAVILLE: That way of putting it begs the question: if
15 you start with the assumption that it is right to give
16 the undertaking ex hypothesi it follows the undertaking
17 should not be broken by a Tribunal or a court. You are
18 assuming what you are seeking to establish.
19 MR CALDECOTT: That is not quite what I am seeking to do.
20 What I am seeking to do is to explain: If the view is
21 taken, looking at it from the journalists' point of view
22 for a moment, that they were right, bearing in mind the
23 threat to the soldiers concerned, the importance of the
24 information they were giving, to give the absolute
25 undertaking when they gave it --
1 LORD SAVILLE: I would tend to put it another way,
2 Mr Caldecott. No doubt Ms Ferguson and Mr Thomson are
3 well aware of the Provisionals of section 10 and the
4 Contempt of Court Act. The way to put it neutrally is
5 to say if they thought it appropriate in the
6 circumstances, notwithstanding the provisions of
7 section 10 of the Contempt of Court Act, to give an
8 undertaking, then you can go on with your proposition.
9 That is the neutral way of putting it. To use the word
10 "right" is, as I say, assuming the answer in your
11 favour.
12 MR CALDECOTT: One has to look at it both retrospectively as
13 to how they were at the time and prospectively as to
14 what they would do in the same situation in the future.
15 In the same situation in the future allegation of
16 serious wrongdoing of the kind that might lead to
17 a formal inquiry, if an order is made in this case, they
18 would have to say "on precedent it is likely that you
19 may well be ordered"; we are talking here about
20 respectable journalists who are honest with their
21 sources with whom we know they build up a relationship
22 of trust. They would wish to be entirely straight with
23 their sources about the risks, this is undoubtedly going
24 to be a very high order if it is made and it will be
25 officer perceived throughout Northern Ireland and
1 elsewhere as a precedent.
2 MR TOOHEY: The way in which you put it makes one wonder why
3 the courts have been in such pains to speak of
4 a balancing exercise. There is not much balance in the
5 way in which you are presenting the argument at the
6 moment, is there? Indeed, the courts are necessarily
7 driven into a retrospective examination, which the
8 journalist, of course, does not have the opportunity to
9 carry out.
10 But if we are talking about balancing, as the courts
11 have been, there is a balance to be struck which
12 suggests there are competing interests which somehow the
13 Court has to give effect to.
14 MR CALDECOTT: I was wrong if I gave the impression that in
15 some way the scales were like this. That is not the
16 submission I am making, but what I am saying is that
17 this public interest, the one I am defending, the media
18 public interest, must, at the least, on a thorough
19 analysis of what the chilling effect means, in
20 circumstances such as the present, must at least be
21 co-extensive, put broadly, with that of the Tribunal and
22 the presumption of course is in favour, in favour all
23 things being equal, of preservation of the confidence.
24 That is why one is faced with Lord Bridge saying
25 that and it plainly is an important observation that the
1 higher the public interest in the information, at the
2 time the journalist receives it, the less likely it
3 should be that an order should be made against it. This
4 is a paradigm case where the information, with respect,
5 could not be higher, nor could the surrounding
6 circumstances as to why the undertaking was given.
7 Lord Templeman is expressly tying-in the problem of
8 the journalist at the time with the chilling effect, and
9 practically speaking one must.
10 One of the reasons why one looks at these other
11 authorities, in almost all of them there is no high
12 order of public interest material being published at
13 all, and more to the point in many of them the source is
14 acting from a mischievous motive -- indeed in many of
15 them that should have been apparent to the journalist if
16 it was not actually apparent.
17 This is an entirely new case; I know of no case on
18 these lines. Again, there is the minority, there is
19 a European Court, in the minority judgment in Goodwins,
20 we know. This was the judgment which upheld the order
21 in favour of disclosure. This is an indication as to
22 how the European Court would approach it.
23 They said that generally orders should not be made
24 in relation to wrong-doing by Government and the like;
25 the reference again is in our original submissions:
1 "In cases where, for example, an abuse of office,
2 corruption or any other perversion of private or public
3 power is an issue --"
4 It is the end of paragraph 3.3.
5 LORD SAVILLE: Of your original submissions?
6 MR CALDECOTT: On page 5, the original submissions, the last
7 sentence on page 5 at 3.3.
8 The reason why they say that is: one has to then
9 look at what Lord Steyn calls the "new landscape". It
10 is his words in McCarr v Templeton Bree?, a new
11 landscape whereby these Article 10 matters must be
12 judged. Plainly, the role of the press in a modern
13 democracy, its importance will very much depend on the
14 particular circumstances.
15 If it is simply purveying tittle tattle or assisting
16 other citizens in breaching their private law duties of
17 confidence one can well understand the balance comes
18 down against them. But there is a real difficulty on
19 the balance of all the obiter dicta, and they are obiter
20 for the very reason I have given, all the obiter dicta
21 such as they are, I suggest, the higher the order of the
22 material, the more it is in the area of what I might
23 loosely call state wrong-doing or matters of that sort,
24 then the confidence should be preserved because
25 otherwise the criticisms do not emerge. That comes
1 earlier than any investigation or any Inquiry.
2 MR TOOHEY: This is where I find myself again in difficulty
3 with this passage from Lord Bridge because one might
4 equally say that the more serious and more credible the
5 information so that it cannot be dismissed as mere
6 tittle tattle, then the more important it may be for any
7 Tribunal such as this Tribunal carrying out an inquiry.
8 MR CALDECOTT: Of course I see that point, but imagine the
9 journalist in the position when someone comes to him
10 with material that is highly significant, which might
11 very well lead, and should lead, to a full statutory
12 inquiry, but which -- assuming this new precedent that
13 Lord Bridge has replaced by a different precedent, which
14 says "the more significant the information, the higher
15 the public interest, then the order for disclosure
16 should be made", on that hypothesis, the journalist
17 cannot give an undertaking, indeed he must say "I cannot
18 give you one, because an order is going to be made".
19 The result is the information is stifled and we see
20 the chilling effect in its fullest possible rigour. The
21 higher the quality of information the more severe the
22 chilling effect. That is the logic of Lord Bridge's
23 approach.
24 Looking at it from the Tribunal's point of view,
25 I entirely understand the way it is put to me. One of
1 the reasons why there is a constant flip side to the
2 debate whichever way you come from, is the curiosity
3 that in this case the public interest which the media
4 are serving and which the Tribunal are serving is in one
5 sense on parallel lines, they are both in fact
6 concerned, in their differing ways, in one case to find
7 the truth, perhaps in another way to provoke a debate
8 which leads to the truth.
9 But the press duty comes earlier in time as
10 a general proposition and if you -- I have finished the
11 point, for what it is worth.
12 MR TOOHEY: I am intending to take you back a few steps, to
13 ask you whether your quarrel with the earlier ruling of
14 the Tribunal is with the principles of law as expressed
15 in the ruling or with the analysis which flowed -- it
16 seemed to be the latter -- but it may be important to
17 identify what the basis of your complaint is and,
18 indeed, whether there are authorities since the previous
19 ruling which in any way might warrant reconsideration of
20 those principles.
21 MR CALDECOTT: There is one more dictum along the lines of
22 Lord Bridge's test in a very recent decision of the
23 Court of Appeal, in a case called Interbrew, which
24 I think you may have just been handed, which I am
25 grateful to my learned friend Mr Nicholl for drawing to
1 my attention.
2 This is yet another case of what I call "the low
3 order public interest material", indeed one could say
4 this is the mischievious order public interest material,
5 yet again. If one just looks at paragraph 1 of
6 Lord Justice Sedley's judgment one gets a feeling for
7 the factual background:
8 "On 19th December 2001 Mr Justice Lightman, on an
9 interlocutory application, granted a Norwich Pharmacal
10 order against five defendant news media requiring them
11 to preserve and within 24 hours to deliver up to the
12 claimant their original copies of the leit and, as the
13 judgment found, partially forged document about
14 a contemplated takeover by the claimant, a major brewer
15 of another major company."
16 If one goes to paragraph 8 -- this is another factor
17 which is said to weigh in the -- another matter which
18 I think with respect is again not explored in
19 the October rulings, one of the other matters to have
20 regard to is the apparent motive of the source in going
21 to the newspaper, which is why that is explored at
22 paragraph 8, about five or six lines in:
23 "On 27th November 2001, the source sent by DHL from
24 Belgium the doctored copies to various publishers of
25 news. On the material before me, I am satisfied that
1 his only purpose can have been, through the medium of
2 the news publishers and their publication of the
3 contents of the doctored copies to create a false market
4 in the shares."
5 We have a case here of mischievious motive of
6 a doctored, partially forged copy. Can I deal, firstly,
7 with why we say the Human Rights Act is a bit more than
8 just a little bit more benevolent sunlight. If one
9 looks at paragraph 30 of the judgment:
10 "The purpose of section 10 of the Contempt of Court
11 Act 1981 is to limit to the necessary minimum any
12 requirement upon journalists to reveal their sources.
13 It has now to be read and applied by our court, so far
14 as possible, compatibly with the Convention rights,
15 Human Rights Act 1988, section 3(1).
16 "For reasons touched on earlier in this judgment,
17 there should be no difficulty about this, but that is
18 not to say that the Convention can simply be treated as
19 background, for it and its jurisprudence may both
20 amplify and modify the hitherto accepted meaning and
21 effect of section 10."
22 I then want to draw attention if I may, please, to
23 a passage which perhaps --
24 LORD SAVILLE: This judgment did not consider Article 2,
25 did it?
1 MR CALDECOTT: This is not an Article 2 case at all.
2 LORD SAVILLE: As I have told Mr MacDonald I have in mind,
3 at some stage you have to deal with the question as to
4 the Article 2 procedural right, which we as Tribunal
5 must obey, to have a proper, full open and complete
6 hearing on matters where there are questions of state
7 killing.
8 Of course the suggestion then will be that is then
9 a new factor which you must take into account in
10 deciding whether or not the sources in this sort of
11 circumstance should be disclosed.
12 MR CALDECOTT: Do you mean Article 6? I am puzzled by
13 Article 2, is it Article 6?
14 LORD SAVILLE: Article 2 on the right to life and the
15 procedural requirement under Article 2, that in cases of
16 state or alleged state killing, there should be proper,
17 complete and full inquiry.
18 It could be said, could it not, when you look at the
19 case as you have asked us to look at, they do not deal
20 with that problem and it is a factor going the other way
21 on the Human Rights Act that we are concerned with an
22 Article 2 tribunal of inquiry.
23 No doubt you will be coming to that in due course.
24 MR CALDECOTT: I certainly have to accept these cases. I do
25 not think any of them are in an Article 2, right to life
1 context.
2 Can I just, if I may, draw attention to what is said
3 about pressing social need. I know this will be very
4 familiar to you all, but six lines in, paragraph 32:
5 "This must mean that to be necessary within what is
6 now the meaning of section 10, disclosure must meet
7 a pressing social need, must be the only practical way
8 of doing so ...", these words, which are important:
9 "... must be accompanied by safeguards against abuse
10 and must not be such as to destroy the essence of the
11 primary right."
12 What I perceive --
13 LORD SAVILLE: Once again, do those authors deal with the
14 question as to the effect of Article 2 and an Inquiry
15 set up on the face of it in accordance with Article 2?
16 MR CALDECOTT: I am sure this is not a dictum specifically
17 in any way directed at Article 2, I am sure that is
18 right. I am trying for the moment to get behind what
19 Lord Bridge's formulation is about and one way of
20 looking at it, is that it is this proportionality
21 doctrine, that if the chilling effect is so fundamental
22 that in effect it is stifling the very, the real and
23 true purpose of the press under the Convention -- leave
24 aside the weaker presumptive rights to keep your sources
25 confidential -- if this is a case where it really is at
1 the heart of exposure of state wrong-doing, then there
2 really is a danger of destroying the primary right, that
3 is another way of looking at the question of the higher
4 the order the public interest material is, the weaker
5 and the lower should be the reason for destroying the
6 confidence.
7 I do take on board --
8 LORD SAVILLE: I did not quite follow that submission, the
9 higher?
10 MR CALDECOTT: The higher the public interest rating of the
11 information, if I can so describe it, the greater the
12 reason for preserving the confidence which allowed it to
13 reach the public.
14 LORD SAVILLE: The reason I ask was I think you said "the
15 weaker" before and I think you mean "the greater".
16 MR CALDECOTT: I think I did make it the wrong way round.
17 I entirely accept the point that is put to me as
18 a matter which is in issue here and not in other cases
19 about the Article 2 aspect under the Convention, but yet
20 again the fact that this involves, on the face of it to
21 these journalists, misconduct by members of the military
22 against unarmed civilians, that again is an extremely
23 powerful reason for not stifling that information from
24 reaching the public eye in the first place or any
25 information of that type.
1 This is why almost every point that in one sense
2 militates for the Tribunal, it militates for us and in
3 one sense vice versa; this is why this is a peculiarly
4 difficult case, we respectfully suggest.
5 There is another point I would want to make about
6 the chilling effect. I do not think I need develop it
7 at great length, but an example of the narrow approach
8 was when my learned friend Mr Clarke said that ITN's
9 interest ceased with the broadcast.
10 Again, it really is an astonishingly blinkered
11 approach to the whole problem. ITN's interests
12 started --
13 LORD SAVILLE: That was said in the context of Mr Clarke
14 saying that ITN's interest in establishing a state of
15 affairs finished with a broadcast.
16 MR CALDECOTT: That too is astonishingly narrow, the media's
17 interest in these events remains active throughout.
18 Suppose in the later terms of this Inquiry, soldiers
19 who do not wish to come forward to the Inquiry come
20 forward to the media as well they might when the
21 soldiers begins to give oral evidence, who is to know,
22 what is the journalist to do?
23 LORD SAVILLE: What good would that do anybody because we
24 would not be able to use the material in your
25 submissions, and therefore the purpose of Article 2 of
1 the Human Rights Act would be frustrated?
2 MR CALDECOTT: First of all, it is not right to say that
3 nothing has emerged and that nothing of value has been
4 contributed by the media giving these undertakings.
5 I fully accept this material would, plainly, be far more
6 valuable with the identities, that is obvious, but it is
7 not right to say that it has no value in its present
8 form.
9 Secondly, it would have the quite separate and
10 independent value of being a substantial contributing
11 cause to the Inquiry being set up in the first place.
12 That is how this whole function of the media operates,
13 in good cases as opposed to mischief cases of this kind.
14 MR HOYT: Mr Caldecott, is there not another dimension to
15 this problem, namely, that there will not be disclosure;
16 the identities, as you just said a minute ago, will not
17 be disclosed; there is an anonymity order and it will
18 only be the members of the Tribunal themselves and their
19 immediate staff that will know the names.
20 Surely that puts it in a much different context than
21 the cases that you have been referring to. Indeed,
22 Mr Thomson himself said he would co-operate with the
23 Tribunal up to the point of compromising the soldiers'
24 identities "anonymity" was the word that he used, but he
25 will not be compromised their anonymity.
1 What will happen, of course, if we are able to see
2 the soldiers, we will be able to judge whether or not
3 their evidence is worthy. Otherwise -- I need not say
4 any more.
5 MR CALDECOTT: I try and analyse this correctly, sir.
6 I entirely see that has a bearing in reasons why the
7 Tribunal would feel in one sense happy with having an
8 order because of the minimal risk to the soldiers. The
9 problem is, how does that really in reality logically
10 bear on the chilling effect?
11 If a person wishing to assist a newspaper in the
12 kind of hypothetical circumstances I am talking about in
13 the future, and the journalist says: "on the face of it
14 you could be ordered by an inquiry to do it, they may or
15 may not give you anonymity".
16 MR HOYT: It is not a matter that can be put in the scales,
17 that can be used in the balancing act you are suggesting
18 we must do.
19 MR CALDECOTT: The problem is, this is a classic instance
20 where at the moment these soldiers, despite the promise
21 of anonymity from the Tribunal, still do not wish to be
22 disclosed; that reflects a fortiori the reality that
23 they are not going to wish to be disclosed at the time
24 they contact the newspaper.
25 One has to look in terms of the chilling effect, at
1 the position in the future when a potential source comes
2 to the newspaper; that is what is concerned, that is the
3 point at which the stifling takes place.
4 LORD SAVILLE: Mr Hoyt's point is -- I am looking at
5 paragraph 11 of Mr Thomson's first statement, I think it
6 is, M84.8:
7 "In my experience people, in the context of
8 Northern Ireland, are prepared to talk to Channel 4 News
9 on the basis of anonymity, precisely because they know
10 that condition will be honoured by the journalists and
11 ITN."
12 Mr Hoyt's point is: these people have anonymity,
13 they have anonymity from the Tribunal, so what is the
14 problem?
15 MR CALDECOTT: The problem one suspects is: (a) they have
16 a lack of confidence in anonymity in the wider context.
17 That may or may not be soundly based, I do not know.
18 But the reality of life is pretty clear that they do not
19 have confidence in that anonymity.
20 LORD SAVILLE: We do not know. All we know is that that is
21 Mr Thomson's expressed view and if that is the reason
22 people do not want to talk about Northern Ireland,
23 unless they are anonymous, Mr Hoyt was suggesting to you
24 that the short answer in this case is that they would
25 remain anonymous.
1 MR CALDECOTT: I accept the point so far as it goes, but so
2 far as the chilling effect goes: how far does it really
3 bear on people coming forward with contingent
4 possibilities of anonymities from Inquiries with
5 contingent possibilities of being unhappy about whether
6 the anonymity will be effective?
7 We respectfully say this still leaves a chilling
8 effect --
9 LORD SAVILLE: You are talking about the chilling effect of
10 us making an order in this specific case.
11 MR CALDECOTT: Yes.
12 LORD SAVILLE: But in this specific case the order we would
13 make is, in effect, that these soldiers would -- we have
14 already made it -- remain anonymous. So that, on the
15 basis of what Mr Thomson tells us, it might be suggested
16 it is a little difficult to see that these circumstances
17 would produce the suggested chilling effect.
18 MR CALDECOTT: One can only look at the evidence which ITN
19 have presently put in. There is no question that people
20 perceive promises of anonymity, within a very narrow
21 compass like a journalist or single journalists whom
22 they deal with in a high order like this, as very
23 different to a promise of anonymity and by a Tribunal
24 which they have to attend before and give evidence; that
25 is, I think, the reality, however unreasonably
1 frightened people think or appear to think, that is why
2 these soldiers do not appear to be content with it,
3 I assume, I have not spoken to them, I cannot give
4 evidence about it.
5 This case demonstrates, in a sense by its facts, but
6 hat although in an ideal, rational and logical world it
7 may well be right, and they should accept the anonymity
8 -- I do not know what risks or what accidents there have
9 been or may yet be in relation to that subject, but
10 assume for the moment that they should in a logical
11 world accept it, nonetheless freedom of speech has to
12 operate in the real world, but frightened people do not
13 make these judgments about whether an inquiry in the
14 future might give them anonymity or not.
15 If they are told there is any risk that this
16 information they are giving to these journalists might
17 lead to an inquiry at which they might or might not be
18 given anonymity and that that anonymity might or might
19 not be effective, they are not going to co-operate and
20 the information will not reach the public domain.
21 Of course there may be cases where it would, but it
22 is a real problem and difficulty. Taking the point,
23 I would nonetheless submit, it does not answer fully the
24 real problems about the chilling effect, as the case
25 demonstrates.
1 MR TOOHEY: Could I take you back to the language of the Act
2 itself, to section 10?
3 "No court may require a person to disclose, nor is
4 any person guilty of contempt of court for refusing to
5 disclose the source of information contained in
6 a publication for which he is responsible, unless it be
7 established to the satisfaction of the court that
8 disclosure is necessary in the interests of justice ..."
9 It continues:
10 "Or national security or for the prevention of
11 disorder or crime."
12 How do we give effect to the presence of those words
13 "in the interests of justice" when we are a Tribunal,
14 charged by Parliament with the carrying out of an
15 inquiry into events and circumstances?
16 MR CALDECOTT: I think the answer to that question is, it
17 very probably means if one adopts the three-stage test
18 that Lord Phillips followed in the Ashworth case: are
19 the interests of justice engaged; is it necessary, in
20 the interests of justice, to have the information and
21 then, thirdly -- and there is further debate about
22 whether this is truly a discretion at all, and then
23 there comes the general question of proportionality and
24 the article 10 considerations, it is sometimes called
25 the short, the discretionary element in the test.
1 The point you put to me may very well mean that the
2 second part of the test is satisfied. In other words,
3 on the face of it it is necessary in the interests of
4 justice to have the information, but that is an
5 essential part of the test in every case.
6 The kind of factor that I am raising about the
7 countervailing public interest comes in at the third
8 stage. It may be helpful just to look at how it is put,
9 this question of the three-stage test. It is at tab 4
10 of our supplemental bundle. It is paragraph 91, tab 4
11 of this small ringbinder:
12 "Mr Brown submitted that in a case such as this, the
13 English court has to follow a three-stage test. First,
14 it has to decide whether the interests of justice are
15 engaged. Secondly, the Court has to consider as a fact
16 whether disclosure is necessary to achieve the relevant
17 ends of justice. Finally, the Court has to weigh, as
18 a matter of discretion the specific interests of the
19 claimant against the public interest in the protection
20 of journalists 'confidential sources".
21 I fully accept the second stage may well be over as
22 a result of the point, sir, you put to me. The
23 arguments I am addressing come in under the third limb
24 of the test. There is in fact a lively academic debate
25 as to whether 2 and 3 are part of one test or two
1 separate tests, I do not think it matters at all
2 whichever way you approach it because, even if it is
3 necessary in the interests of justice, it is quite clear
4 a proportionality test still has to be applied, having
5 regard to legitimate aim as balanced against the
6 co-relative rights under article 10.
7 While I am on Iterbrew, can I go to the point where
8 it deals, to some extent, with what -- it does not
9 actually expressly refer to Lord Bridge, but it deals
10 with another aspect which, on this case, is relevant
11 which is the purpose of the leak. It is paragraph 42.
12 I think we see that a distinction is drawn between
13 motive and purpose. Justice Sedley says at the opening
14 sentences of 42:
15 "Motive may not be very important", then he says
16 about seven lines down:
17 "The purpose of the leak by contrast is likely to be
18 highly material. If it is to bring wrong-doing to
19 public notice, it will deserve a high degree of
20 protection and it will not matter, assuming it could in
21 any way be ascertained whether the motive is conscience
22 or spiked. If the purpose is to reck a legitimate
23 commercial activity, again it will not matter whether it
24 is done for political motives or personal gain, it will
25 be the less deserving of protection. For these reasons
1 the Court at first instance were not speculative about
2 motive, it needs to form the best view it can of the
3 source's purpose."
4 He goes on -- can I deal with this question of
5 discretion, it is just an interesting approach to it, at
6 45 and 46 --
7 LORD SAVILLE: I am not quite sure at the moment why you
8 are drawing this to our attention, the source's motive
9 and purpose. I think you said a little earlier on that
10 this was something we should have borne in mind before;
11 is that right?
12 MR CALDECOTT: Yes, and also simply as a more modern case,
13 as when seen from the earlier paragraph I have drawn
14 attention to, it is very much aware of the importance of
15 the Convention. It is saying that the importance of
16 looking at all aspects of the -- what you might call the
17 public interest element in it -- one aspect in this
18 case, I do not think it appears in the X limited case,
19 which is to look at the purpose of the disclosure, which
20 obviously is intimately connected with this subject
21 matter. It may not take it very much further --
22 LORD SAVILLE: It may not, what Lord Justice Sedley appears
23 to be saying, if it is bringing wrong-doing to public
24 notice, it will deserve a high degree of protection.
25 Then if it is simply to reck legitimate commercial
1 activity, then it will be less deserving of protection.
2 That seems to indicate that you do look at the
3 purpose of the leak; is that right?
4 MR CALDECOTT: It appears --
5 LORD SAVILLE: What you were saying about the chilling
6 effect, therefore, would have to be moderated if the
7 purpose of the leak was for personal gain or something
8 like that; is that correct?
9 MR CALDECOTT: I think it is assuming -- one of the problems
10 with this, one has a case which is so clearly concerned
11 with a mischievous motive, it is probably slightly
12 doubtful to apply it too much, in its detailed terms, to
13 one where one had a good motive.
14 I think it is certainly saying if you have
15 a mischievous motive combined with information which is
16 in fact designed to distort for personal benefit,
17 plainly the protection is the less.
18 LORD SAVILLE: Where do you put our present case, then,
19 Mr Caldecott?
20 MR CALDECOTT: If one looks at it from the point of view of
21 the journalists and what these soldiers appear to have
22 said to them, on the face of it, it is very hard to
23 see -- none of these sources were paid -- why on earth
24 they would go to the media and invent material of this
25 kind?
1 LORD SAVILLE: Does that apply to D? I am not sure you can
2 describe what apparently D said as bringing wrong-doing
3 to public notice. I should have thought it was
4 completely the opposite, was it not?
5 MR CALDECOTT: I see the point in relation to D, D
6 effectively is defending. Nonetheless, if you are
7 gathering, as the media, information on a subject like
8 this, it is undoubtedly right to gather information from
9 all sides and, looking at it from the journalists' point
10 of view it is important, exercising their judgment, to
11 give both sides.
12 LORD SAVILLE: I follow that, but what I am finding
13 difficulty with at the moment is where you say we should
14 take into account the purpose of the leak. I was only
15 observing that if you take Lord Justice Sedley's highest
16 case, that would hardly appear to apply to D. It might
17 apply to the others, but it hardly applies to D, does
18 it?
19 MR CALDECOTT: I am not sure we have given precise evidence
20 as to what we think D's purpose was.
21 LORD SAVILLE: It does not seem to have been to bring
22 wrong-doing to the public notice.
23 MR CALDECOTT: No, it certainly does not contain that germ
24 which A to C and E plainly have; he is not, on the face
25 of it, accepting (as I recall) that there is any
1 wrong-doing, in effect; he is giving a counter view to
2 the effect that there was none.
3 LORD SAVILLE: That raises a specific problem, but in
4 general terms are you saying we should now, or should
5 back in 1999 have had regard to the purpose of the leak,
6 that is to say the purpose for which these five people
7 were persuaded to give information to ITN? I am just
8 not clear on where you say it fits in.
9 MR CALDECOTT: Can I try and analyse it this way: the public
10 interest element in the information objectively viewed,
11 the assessment by the journalist of that factor, is
12 plainly in part going to be affected by the apparent
13 purpose of the person who gives him the information.
14 If the motive appears to be bad, the public interest
15 value of the information may well be less. If the
16 information is apparently high and the motive would
17 appear to be nothing more than to bring to the attention
18 of the public serious wrong-doing, then they mutually
19 reinforce each other, I think it only goes so far as
20 that really.
21 I mean, supposing you had a source who did have on
22 the face of it allegations of serious wrong-doing, but
23 he says "I am not going to give you any details until
24 you pay me £50,000", that introduces a mercenary motive
25 which, on the face of it, may affect an assessment of
1 the public interest value and the information.
2 LORD SAVILLE: What are you saying we should do in relation
3 to purpose of leak?
4 MR CALDECOTT: Taking your point, sir, on D, leaving him to
5 one side, we simply say this: this was a case where
6 apparent motive, on the face of it, was to remedy
7 a serious wrong-doing and the information on the face of
8 it, as the journalists have said, was credible and the
9 gravity of what they allege could hardly be more serious
10 in its general context.
11 All these angles in a sense support each other.
12 I do not want to make too much more of this introduction
13 of purpose, other than to say that it plainly could, in
14 some cases, undermine the information; there is no such
15 element here. I think that is really all I want to make
16 of it. I do not want to --
17 In a sense the natural starting point is
18 Lord Bridge's starting point, the value of the
19 information in public interest terms looked at
20 objectively.
21 LORD SAVILLE: I thought you were criticising us for not
22 dealing with the purpose of the leak.
23 MR TOOHEY: Why is not the starting point that Parliament
24 has charged this Tribunal with the task of carrying out
25 an inquiry? From time to time you said -- you look at
1 it from the journalists' point of view and perhaps then
2 go on to consider other factors.
3 Why is not the primary consideration in this case --
4 because a number of those other authorities are
5 inter partes litigation -- why is not the starting point
6 here that Parliament has charged the Tribunal with the
7 task of carrying out the Inquiry, and if the Inquiry
8 forms the view that certain information is important to
9 the task with which it has been charged, that does not
10 mean -- I am not suggesting for a moment that
11 journalistic confidence is not brought into account --
12 is that not the starting point, rather than the broader
13 consideration of perhaps the effect on persons providing
14 information to media sources if there is a possibility
15 that those sources may be ordered to be disclosed? That
16 is put as a question not as a proposition.
17 MR CALDECOTT: This question of the starting point is one of
18 the effects which article 10 does have, in the sense
19 that freedom of expression now does appear to be the
20 starting point in relation to which one considers this
21 problem. If the dictum of Lord Steyn is precisely to
22 effect.
23 I would be grateful for an opportunity very briefly
24 to go to these cases on the role of the press, these
25 short cases which post-date the October rulings. I am
1 not going to take very long over it, but I would like to
2 do it very briefly because they do address this question
3 as to how one approaches the question of the restriction
4 under article 10(2).
5 There are two problems: one is, acknowledging all
6 the importance of the Tribunal's public interest, what
7 is the position if it tends to destroy the primary right
8 of the press to collect and gather information for
9 public disclosure of this kind, that is the first point.
10 Secondly, the point is: where do you actually start
11 from? We respectfully submit, difficult though it may
12 be, the correct starting point is freedom of expression
13 and that the presumption in fact does lie, in that
14 sense, with the media rather than with the Tribunal.
15 MR HOYT: But even if that is the case, Mr Caldecott, surely
16 the role of the Tribunal must sometime be factored into
17 the equation.
18 MR CALDECOTT: Of course.
19 MR HOYT: Your argument to date almost sounds that there is
20 absolute immunity.
21 MR CALDECOTT: I do not wish to give that impression.
22 MR HOYT: You have to me.
23 MR CALDECOTT: Having faced a whole sequence of submissions
24 which say virtually nothing at all about the public
25 interests I am defending, it may be understandable if
1 for a moment it appears that I am putting too much
2 weight on our public interest.
3 But one has to analyse -- this lies at the heart of
4 our submissions -- what does a Tribunal do where the
5 information which the press revealed which substantially
6 contributed to it being set up in the first place, would
7 not have been given but for the undertakings of
8 confidence which were given by the journalists, if they
9 are broken by an order what, potentially, is the
10 chilling effect?
11 LORD SAVILLE: Mr Caldecott, we have now reached 5.15 and
12 we are going to have to stop very soon. If you have
13 finished the section on the purpose of the leak and are
14 coming on to something else, it might be a convenient
15 moment to leave it until tomorrow morning at 9.30.
16 MR CALDECOTT: Can I mention, there is a bit in Interbrew
17 towards the end that you might find interesting to read.
18 I do not think it is particularly relevant for me to
19 read it at great length, but there is an interesting
20 section on the approach to discretion, which is from
21 paragraphs 44 really through to 58. It is quite dense
22 reading, I just thought I would mention it.
23 LORD SAVILLE: I have read it, the upshot of which is
24 really that, although you could use the word
25 "discretion", it is not discretion as one would normally
1 understand it --
2 MR CALDECOTT: In a sense there is only one right answer.
3 LORD SAVILLE: -- it is a matter of balancing up the
4 factors and saying, because factors A, B and C over-ride
5 or do not over-ride, factors D, E and F, the answer
6 is Z.
7 We will leave it until tomorrow, but I would be
8 interested in hearing anything you have to say on the
9 correlation between article 10 and the procedural right
10 to an inquiry in the case of state deaths and Article 2.
11 Mr MacDonald, as I understand it, that is the point
12 you have drawn to my attention?
13 MR MACDONALD: Yes, sir.
14 MR CLARKE: Sir, can I give warning of timetabling
15 difficulties that are beginning to arise?
16 We are due to have tomorrow Mr Gill, Vincent Browne
17 and Simon Hoggart. We were due to have heard Mr Gill
18 today and my learned friend Mr Nicholl is here on his
19 behalf and will be here tomorrow, and Messrs Browne and
20 Hoggart have been fixed for tomorrow and have been
21 difficult to fix. I am not saying that critically, but
22 they are themselves both journalists with a lot of
23 commitments and we have had considerable problems in
24 fitting them into the timetable.
25 I simply say that because it is the position we are
1 in at the moment.
2 LORD SAVILLE: Mr Caldecott, can you give us any indication
3 as to how much longer you are likely to be, I know you
4 have been interrupted a lot so it is difficult to give
5 an estimate?
6 MR CALDECOTT: I suspect, if I go back through my notes,
7 there will be a fair amount struck out, I will try and
8 be no more than half an hour.
9 LORD SAVILLE: Another thing that would be useful to us, if
10 you could give us a list of the specific criticisms you
11 make of the way we looked at the matter in 1999. I have
12 one in mind now, which is you say we undervalued or
13 failed properly to value the chilling effect, but
14 I understand there are others and I would like them set
15 out so that we can look at them carefully.
16 What I think we had better do, Mr Clarke, is, apart
17 from considering this after we rise, it looks on the
18 face of it as though Mr Gill would be the next person
19 because he raises much the same matters as we are
20 dealing with at the moment.
21 So far as the others are concerned, we can sit on
22 tomorrow afternoon but obviously we cannot extend the
23 day indefinitely and I am not sure I can offer any more
24 than that.
25 Is Mr Nicholl here?
1 MR CLARKE: Yes.
2 LORD SAVILLE: A lot of this ground you will be -- I hope,
3 not going over again -- but it will be relevant to your
4 submissions, as I understand it.
5 MR NICHOLL: I will try not to be repetitive, but there are
6 certain features of Mr Gill's case that I will need to
7 develop in addition.
8 LORD SAVILLE: Of course.
9 MR NICHOLL: It has been valuable for me to be able to both
10 read his written submissions and to hear how he has
11 developed the matter orally and the points that have
12 concerned the Tribunal in questions to him and I will
13 try and take all that on board.
14 LORD SAVILLE: Again it is very difficult to offer any form
15 of estimate, but how long do you think you are likely to
16 be?
17 MR NICHOLL: It is a little difficult, sir, my client has
18 not been called; the areas on which he may be pressed
19 have not been fully identified. In that sense he is
20 much further back along the track than the ITN
21 journalists who have had the experience of appearing
22 before the Tribunal in October 1999.
23 LORD SAVILLE: What Mr Toohey is suggesting, that your
24 client is local, so to speak, at least more local than
25 the other two we had identified; is that right?
1 MR NICHOLL: It depends how you classify Australia, sir.
2 LORD SAVILLE: Local in the sense that I understood,
3 perhaps mistakenly, he was going to be here for a couple
4 of weeks or so.
5 MR NICHOLL: He is due to be here for a few days, but I was
6 not being entirely facetious that his home is in
7 Australia.
8 LORD SAVILLE: I was aware of that, but the information
9 I was given, that he will be here for a few days.
10 MR NICHOLL: He will be here for a few days.
11 LORD SAVILLE: We do not want to disrupt his trip, perhaps
12 you could have a word with Mr Clarke to see if there are
13 any other arrangements we could make, depending on the
14 level of inconvenience or difficulty in getting the
15 other two possibilities in tomorrow.
16 MR NICHOLL: Is the idea, sir, that we investigate an
17 alternative day apart from tomorrow?
18 LORD SAVILLE: I think Tuesday would be the candidate apart
19 from tomorrow. Perhaps you could have a word with
20 Mr Clarke when we rise, or Ms McGahey. I think we ought
21 to explore that possibility.
22 MR NICHOLL: I am happy to do whatever fits in with the
23 Tribunal's convenience.
24 LORD SAVILLE: Thank you very much indeed.
25 The other thing, Mr Caldecott, perhaps you could
1 take instructions on is: we of course have Ms Ferguson's
2 and Mr Thomson's notebooks in their respective custody.
3 We then have the video which is, as I understand it, in
4 the custody of ITN, or at least its agents. Is there
5 any other material which is in the custody of ITN?
6 MR CALDECOTT: Not that I am aware of, sir, no.
7 LORD SAVILLE: Could you make inquiries about that? Just
8 looking at the position, we would really like to know
9 specifically what it is being suggested we should order
10 ITN to disclose, if we were to make such an order.
11 Mr Clarke can perhaps help us.
12 MR CLARKE: What I would be suggesting you might order to be
13 produced in some form or another: firstly, the video in
14 respect of B; secondly, what I have called 'the
15 compilation video'. That is the video, notes in respect
16 of which are at M25.49 which appears to be simply
17 a video of what appeared in the broadcast, in which case
18 there cannot be any problem whatever in producing it.
19 If it contains something else, that would be potentially
20 relevant.
21 Thirdly, the video in relation to C; fourthly,
22 I suspect that nobody at ITN has looked to see if there
23 are audio tapes of the interviews that were not videoed
24 but were the subject of tape-recording, that is to say D
25 and E. If they have looked and they do not exist, the
1 problem goes away. If they do exist, we would like to
2 hear them. If we do not know whether somebody has
3 looked, we would like somebody to find out whether they
4 have or not.
5 Lastly, I am assuming -- but it would be desirable
6 to know whether the assumption is correct -- that there
7 are no notes of interviews of either A, B, C, D or E
8 that ITN possess but which have not been produced by the
9 two individual witnesses; they have given evidence that
10 apart from what they have produced, they have nothing
11 else. I am not 100 per cent clear whether that is the
12 position of ITN.
13 LORD SAVILLE: That is no doubt helpful to Mr Caldecott and
14 his clients. Some at least of that material,
15 Mr Caldecott, would on the face of it, seem to fall
16 entirely outside any questions as to whether sources
17 should be rerevealed, in which case, as far as
18 I understand it and as I understood you yesterday
19 evening, there is absolutely no reason why it should not
20 be produced forthwith.
21 MR CALDECOTT: Sir, we are hoping to get this material which
22 is not covered by identity problems by the weekend, we
23 are still working towards that and hoping to achieve it.
24 LORD SAVILLE: I hope in that regard Mr Clarke's list will
25 be helpful to you.
1 MR CALDECOTT: It will, I am sure.
2 LORD SAVILLE: We will come back to this tomorrow at 9.30
3 and, depending on discussions that will now take place,
4 we will try and work out the best method of proceeding
5 after Mr Caldecott has finished his submissions.
6 (5.25 pm)
7 (Proceedings adjourned until
8 9.30 a.m on Thursday, 2nd May 2002)
9
10
11 Questioned by MR CLARKE ...................... 2
12 Questioned by LORD GIFFORD ................... 36
13 Questioned by MR GLASGOW ..................... 39
14 Questioned by MR ELIAS ....................... 46
15 Questioned by SIR ALLAN GREEN ................ 52
16 MR ALEXANDER THOMSON, affirmed ............... 64
17 Questioned by MR CLARKE ...................... 64
18 Questioned by MR GLASGOW ..................... 87
19 Questioned by LORD GIFFORD ................... 122
20 Submissions by MR MACDONALD .................. 131
21 Submissions by LORD GIFFORD .................. 132
22 Submissions by MS McDERMOTT .................. 136
23 Submissions by MR KENNEDY .................... 137
24 Submissions by MR GLASGOW .................... 137
25 Submissions by MR ELIAS ...................... 141
1 Submissions by MR CALDECOTT .................. 143
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