1 Thursday, 3rd October 2002
2 (9.35 a.m)
3 COLONEL OVERBURY, sworn
4 Questioned by MR CLARKE
5 LORD SAVILLE: Colonel, if you look to your left you will
6 see who is talking to you. I say this to all the
7 witnesses: I am the Chairman; the questions will come
8 from the barristers in front of me; can you keep close
9 to the microphone so we can hear what you have to say.
10 MR CLARKE: Could we have on the screen CO1.36, a copy of
11 your statement to this Tribunal which you signed on
12 28th November of 2001, and the first page of which is
13 presently on the screen.
14 A. Yes, sir.
15 Q. Are the contents of that statement true to the best of
16 your knowledge and belief?
17 A. Yes, sir.
18 Q. Because we have all had the opportunity of reading both
19 it and what is attached to it, I am going to ask you
20 only about portions of it and matters that arise out of
21 it. Could we have the second page, paragraphs 6 to 8.
22 You give details of your career in paragraphs 6 to
23 11, which I think we can summarise by saying that prior
24 to the end of 1971, you had served in Cyprus and in
25 Hong Kong, and had acted as a prosecutor in Court's
1 Martial; and in late 1971, you became assistant director
2 of Army Legal Services; is that right?
3 A. Yes, sir.
4 Q. You later became, after the events with which we are
5 concerned, Chief Prosecutor in Germany until you retired
6 from the Army in 1974; became an official with the
7 European Commission until, in 1993, you retired from
8 that office and joined the firm of Allen & Overy, with
9 whom you still are, as a consultant; is that right?
10 A. Yes, sir.
11 Q. There is a bundle of documents that I believe you were
12 shown by Eversheds when your statement was taken. There
13 are some matters that I would like to ask you about.
14 Could we turn, please, to CO1.82. This is a document,
15 if we highlight the passage which relates to 1st
16 February, when the writer of the document describes
17 discussing the case with the director of Army Legal
18 Services, who decided that Lieutenant Colonel Overbury
19 would proceed to Northern Ireland tomorrow on behalf of
20 the director to assist Northern Ireland command, and be
21 a member of a team which was being set up to make the
22 necessary preparations for the forthcoming Tribunal.
23 Are you able to identify whose document this must
24 be? Perhaps we could have the whole of it on the
25 screen. It begins by saying:
1 "DPS [presumably Director of Personal Services] sent
2 for me and asked my views about the type of Inquiry that
3 should be undertaken".
4 A. No, sir, but it must have been a Staff Officer from the
5 Ministry of Defence.
6 Q. Could we have a look, please, at CO1.83. Could we
7 highlight the text part of the document. This is
8 a document which records the team that had been set up
9 at HQ Northern Ireland to coordinate the work involved
10 in presenting evidence to the Tribunal. We can see that
11 your name appears on the left-hand side, the second down
12 under "Preparation of Army evidence".
13 I would like you to help me about what exactly
14 everybody in this team was doing. We see Brigadier
15 Tickell was the Chairman of the team. I think he was
16 the Chief of Staff to the GOC; is that right?
17 A. Yes, sir.
18 Q. Apart from being the man at the top and therefore
19 ultimately responsible, did he in practice play any part
20 in the preparation of the Army evidence?
21 A. I think to the extent that he was -- regular reports
22 were made to him, but I cannot recall many formal
23 meetings with him sitting in the chair.
24 Q. Then we see there is a Deputy Chairman, who has the
25 cipher in these proceedings of UKN224. I believe you
1 have a piece of paper which indicates the true names of
2 some of the people who are referred to in your
3 statement; is that right?
4 A. Yes, I have.
5 Q. He is described as being in charge of administrative
6 arrangements. In practice did he play any part in the
7 preparation of Army evidence?
8 A. Not that I can recall, sir.
9 Q. We have "GSO1 Plans", who is known for the purposes of
10 this Inquiry as INQ1862. We see that he is the leader
11 of that part of the team which was responsible for
12 gathering evidence and information from the Army, but
13 did he himself play any part in the taking of evidence
14 or the taking of statements?
15 A. Not in the taking of statements. His primary role was
16 the -- as far as I recall, was the preparation of the
17 preliminary statement that was made on 5th February.
18 Q. Then we find you, Representative of Army Legal Services.
19 Then we have Major Bailey. Does that acronym stand for
20 Deputy Assistant Director of Army Legal Services?
21 A. Yes, sir.
22 Q. You, of course, were a lawyer. Presumably he was later
23 as well, was he?
24 A. Yes, sir.
25 Q. And then an RUC advisor. Would it be fair to say that
1 the role that you were playing in relation to the
2 Widgery Tribunal is that you were in effect the
3 instructing solicitor of Mr Gibbens and Mr Underhill?
4 A. No, sir, the instructing solicitor was the Treasury
5 Solicitor.
6 Q. But who actually gave them their instructions?
7 A. They were not given instructions that I recall, sir.
8 Once they came to -- over to Ireland, there were regular
9 meetings with them and they decided what they wanted.
10 They were not instructed by me as to what they should be
11 doing. What I was doing there was to advise the Army
12 generally in Northern Ireland, and to supply Counsel
13 with what they wanted. I would not have put that as the
14 role of instructing solicitor.
15 Q. You say they were instructed by the Treasury Solicitor.
16 In practice did anybody give them instructions?
17 A. Not that I am aware of sir, no.
18 Q. If they wanted to turn for information, is it to you to
19 whom they would turn?
20 A. If it was within my sphere, yes; if it was a question of
21 evidence, sir, yes.
22 Q. Could we have on the screen, please, C1.212. This is
23 a report of the first meeting of the Inquiry team in
24 Northern Ireland on 2nd February. Could we highlight
25 paragraph 1. That reveals who was present, including,
1 as we see, yourself.
2 If we could turn, please, to CO1.213, could we
3 highlight paragraph 4. This report is, I think, is it
4 not, a report of Brigadier Tickell, the Chief of Staff;
5 is that right?
6 A. This is CO1.12, sir?
7 Q. CO1.212 is the first page. I am trying to see whose
8 report this is.
9 A. I beg your pardon, sir. Is that the document headed
10 "The Londonderry Inquiry"?
11 Q. Yes. Can we have 212, please?
12 A. The document on the screen is not -- 212, I beg your
13 pardon.
14 Q. That is, I think, 212. I am trying to work out whose
15 document it is. If one goes to CO1.214, we get the end
16 of the document, which does not seem to be complete; and
17 we do not have a signatory.
18 A. My feeling is that this document was a document made by
19 INQ2144.
20 Q. That is the Director of Personal Services?
21 A. Yes, sir.
22 Q. Can we then go, please, to CO1.213, paragraph 4 and
23 highlight that, please?
24 A. Sir, I am sorry, I can confirm it is a report made by
25 INQ2144.
1 Q. Thank you. The report records this:
2 "I said that my assumption was that this had been
3 a thoroughly well conducted military operation and that
4 we had nothing whatsoever to hide or to be ashamed of.
5 If, however, any soldier had accidentally discharged his
6 weapon during the fracas, this must be reported at once
7 to Lieutenant Colonel Overbury. We did not want any
8 such incident, if it had occurred, coming to light for
9 the first time during the course of the Tribunal.
10 Senior officers would have to be questioned, and some
11 soldiers might find themselves being questioned and
12 requestioned. This was something that they must accept.
13 They must not assume that their original account was not
14 believed, but it would be the duty of Lieutenant Colonel
15 Overbury to cross-check statements. He must have every
16 co-operation at all levels."
17 Do you recall words to that effect being said at
18 this meeting?
19 A. I do not directly recall it, sir, but I have no doubt
20 they were said in the light of that statement.
21 Q. There is a reference there to the duty of you to
22 cross-check statements. Was there any further
23 explanation, do you recall, of what that would involve?
24 A. No, sir.
25 Q. Could we have paragraph 6 on this page. There is
1 a discussion there about how a number of different
2 agencies had been collecting information independently
3 of each other. Towards the end of the paragraph, the
4 Director of Personal Services, records this:
5 "Some PR film had been taken from a helicopter at
6 the height of the engagement, and I was asked to bring
7 this back to UK for security processing. I handed this
8 over to PR5 at London Airport at 2130 hours. One copy
9 is to go back to Northern Ireland and one to ALS2 for
10 Treasury Solicitor."
11 Do you understand what is meant by "security
12 processing"?
13 A. No, sir.
14 Q. We see a reference to a copy going back to
15 Northern Ireland; would that have been to your team or
16 to somebody else?
17 A. I suppose it would have come to the team and been held
18 by the Assistant Provo Marshall.
19 Q. One to SLS2, presumably Army Legal Services 2, is it?
20 A. Yes, that was the office in Berkeley Square at which the
21 director ALS1 and ALS2 were stationed.
22 Q. When it says "and one to ALS2 for Treasury Solicitor,"
23 does that mean for the Treasury Solicitor in his
24 capacity as solicitor for the Army or for the Treasury
25 Solicitor in his capacity as solicitor for the
1 Widgery Tribunal?
2 A. I am afraid I do not know, sir.
3 Q. Could we have on the screen CO1.22 8. This is what is
4 described as a Widgery office note of action to be taken
5 as a result of meeting with Counsel on
6 8th February 1972. One of those items, number 1, is:
7 "Attend briefing of AG in Lisburn on 10th February".
8 Should we understand that to be the Adjutant General
9 and not the Attorney General?
10 A. The Adjutant General, sir.
11 Q. There are three matters in addition that are assigned to
12 you. One, item 6, is:
13 "Background of Doherty."
14 Do you have any recollection now as to what that
15 covered?
16 A. No, sir.
17 Q. Item 7:
18 "Treatment of dead -- evidence."
19 Do you know what that was?
20 A. No, sir. At the time I made my statement I had some
21 recollection, but I am not entirely sure what that
22 means.
23 Q. And:
24 "8. Obtain statements from officers including
25 intelligence background."
1 Do you know what that is about?
2 A. At that time I believe there were no statements taken
3 from the officers other than the reports that they had
4 made which were attached to the preliminary report, and
5 I think statements were required for the purposes of
6 proofs of evidence for the Tribunal.
7 Q. Could we have on the screen CO1.41. Could we highlight
8 paragraph 27, at the bottom. You describe there how:
9 "The actual task of investigation was the
10 responsibility of the Army's Special Investigation
11 Branch. In accordance with standing orders, each of the
12 soldiers who had discharged live ammunition on the day
13 in question had already made a statement to the Royal
14 Military Police within hours of returning to barracks.
15 Copies of these statements were attached to the
16 preliminary report submitted on 5th February 1972."
17 A. I beg your pardon, sir, which paragraph is this?
18 Q. It is paragraph 27, which begins at the bottom of page
19 CO1.41.
20 A. Yes, I have it, sir.
21 Q. Those statements, the first statements that were taken
22 by the Royal Military Police, as I have understood it
23 any soldier who fires a live shot has, in all
24 circumstances, to give an account of how and why he came
25 to fire it?
1 A. That was my understanding, sir.
2 Q. The statements that were taken in accordance with that
3 practice by the Royal Military Police, do you know
4 whether those would have been statements made under
5 caution?
6 A. No, never.
7 Q. They were not?
8 A. Never.
9 Q. And apart from the Military Police and the soldier
10 himself, do you know whether it would be the practice
11 for anybody else to be present?
12 A. No, I do not, but I do not think that it was ever
13 required. After any IS incident in which live rounds
14 are fired, the firer had to be interviewed and make
15 a statement for the purposes of any internal or external
16 inquiry that might take place; and I believe there are
17 rules were published. I have seen some document as to
18 how it should be done.
19 Q. But so far as you are aware, these were usually done
20 without anybody other than the soldier and the policeman
21 being present?
22 A. That is my understanding.
23 Q. And you then record how:
24 "Once it was announced that there would be
25 a Tribunal of Inquiry and the Army Tribunal team was set
1 up, the SIB [Special Investigations Branch] was
2 requested to carry out a full investigation, in the
3 course of which they decided to interview many of the
4 soldiers again."
5 So far as that investigation is concerned, would any
6 of those statements have been taken under caution?
7 A. No, sir, because that would have been for the purpose of
8 the Tribunal of Inquiry, and it was not necessary to
9 caution soldiers for that purpose.
10 Q. Again so far as you are aware, apart from
11 representatives of the SIB and the soldier himself,
12 would anybody else be present when soldiers were
13 interviewed again?
14 A. Not unless there was any need for them, if they were in
15 any kind of peril personally, there would be no need for
16 them to have an officer present.
17 Q. Could we have a look at C 1,835.1, the first paragraph.
18 This is a statement of a man known to us as INQ1835, who
19 was employed in January 1972 by the Special
20 Investigations Branch of the Royal Military Police and
21 who, as appears from the rest of his statement, was
22 engaged in the investigation of the events of
23 30th January.
24 Could we please have on the screen C1835.5. Could
25 we highlight paragraph 31. He is describing the
1 statement-taking process. What he says in this
2 paragraph is this:
3 "I am not conscious of any pressure having been
4 applied to me regarding what the statement should say.
5 If a soldier had said to me something like 'I think
6 someone had a nailbomb and I shot him', i.e. something
7 which may give us (the Army) a problem, I would have
8 stopped the interview and spoken to Headquarters
9 Northern Ireland or Army Legal Branch."
10 Is that what you would expect to have happened in
11 those hypothetical circumstances?
12 A. Yes, sir.
13 Q. And why would the interview have been stopped if the
14 soldier had said something like that?
15 A. Because that was in accordance with the written
16 instructions which were in existence for these
17 interviews.
18 Q. The instruction being, what?
19 A. Well, it was a brief for investigations. It is
20 a document I have seen in which it describes what should
21 happen. It specifically states in that document that if
22 a soldier makes a statement which would seem, on the
23 basis, that it might incriminate him, that the
24 statement -- the interview should not continue until the
25 interviewer had taken advice.
1 Q. When you say you have seen such a document, have you
2 seen it recently, or are you talking about events long
3 past?
4 A. No, sir, it was in the bundle of documents that I have
5 seen.
6 Q. Is it attached to your statement?
7 A. No, sir.
8 Q. We will have to try and locate it. Could we have
9 C01.42, paragraph 28. You describe there being
10 informed, probably on a daily basis, of the course of
11 the investigation. You describe how some of the
12 soldiers who had fired live rounds were re-interviewed
13 several times, and all or most of them re-interviewed by
14 the Tribunal staff before they finally gave their
15 evidence on oath to the Tribunal. You say at the end of
16 this paragraph:
17 "As far as I was concerned, the important principle,
18 to be strictly observed, was that whenever a soldier
19 made more than one statement, all of them were handed
20 over to the Tribunal. I have no recollection of any
21 statement being withheld from the Tribunal staff and
22 I am certain that all the statements in the possession
23 of the Army team were handed over. I recall an occasion
24 when I took the originals of, I believe, all these
25 statements to the offices of the Tribunal accompanied by
1 a non-commissioned officer of the SIB."
2 That is correct, is it?
3 A. Yes, sir.
4 Q. Am I right in thinking that the statements may have been
5 delivered in two tranches, that is to say the original
6 statements of the Royal Military Police, and then the
7 statements of the SIB investigation?
8 A. Yes, sir, I think that is correct. The original
9 statements, I think, were volume 1. The statements that
10 were taken subsequently, after the photographs had been
11 taken and shown to the soldiers, and where, I think,
12 about half the soldiers were re-interviewed, I saw two
13 of them, and the other eight were interviewed by the
14 Military Police.
15 Those statements, I think, went into a volume called
16 volume 3.
17 Q. But both volumes ended up with the Widgery Tribunal?
18 A. Yes, sir. When I say that I took the originals, I think
19 those were the originals which were the first lot of
20 statements, because they had the soldiers' identity on
21 them; and, therefore, I took them personally to
22 Coleraine.
23 Q. Is that the original RMP statements?
24 A. Yes, sir.
25 Q. Am I right in thinking that, although you took all the
1 statements to the Widgery Tribunal, the statements of
2 the soldiers were not in fact circulated to the
3 interested parties at the Tribunal; nor indeed were the
4 statements of the civilians circulated to the Army?
5 A. That is correct, sir. That was what Mr Hall told me.
6 Q. So far as you are aware, when a soldier stepped into the
7 witness box, he gave his evidence orally, and Counsel
8 for the relatives would not have had a copy of any
9 statement?
10 A. I believe that is correct, they had not.
11 Q. Similarly, when a civilian went into the witness box,
12 Counsel for the Army had not a copy of any statement he
13 may have made, or she?
14 A. That is correct.
15 Q. Can we come to CO1.112. Can we highlight the top
16 paragraph of a summary of events in Londonderry on
17 Sunday, 30th January 1972, being a preliminary report
18 compiled, as I understand it, by you and INQ1864, that
19 is to say GSO1, in charge of the preparation of
20 evidence?
21 A. Yes, sir.
22 Q. It is dated 5th February 1972. It has a number of
23 annexes. Could we have a look, please, at one of them,
24 CO1.140. Can we highlight the top of the page, please.
25 This is annex D to the report. It is a document
1 described as "The Hooligan Element in Londonderry", and
2 it describes the significance of that element in
3 relation to the events of the day.
4 Do you know whose document this is? The reason
5 I ask, is that if one goes to CO1.142, the document
6 ends -- possibly prematurely -- on our copy at internal
7 page 3, and it is not possible to tell who wrote it.
8 A. This must have been a document that was available within
9 the headquarters at the time.
10 Q. It was not written especially for the report?
11 A. Not that I am aware.
12 Q. Could we have a look, please, at CO1.141. Could we
13 highlight paragraph 3 in the document. It reads:
14 "The real problem begins however with the extremely
15 vicious large scale rioting during arrest or search
16 operations in the Bogside and Creggan and in the IRA
17 organised retaliatory riots which follow. The hooligans
18 play a very prominent part in both instances, appearing
19 in strength and under the control of IRA leadership.
20 Moreover, if further sections of the community come out
21 in their support and unite with them in open revolt, the
22 resultant mob poses a really serious threat to the
23 safety of the troops and to the security of Londonderry,
24 particularly the city centre. It was this last
25 contingency which was anticipated, and which played
1 a significant part in the military planning process
2 before 30th January."
3 Looking at that, does that give you any idea as to
4 who may have compiled this document?
5 A. No, sir. I was not involved in these aspects of the
6 evidence. When that first report was made the object
7 was to get, within a very, very short time, every single
8 piece of information that was regarded as being
9 relevant, and it was very much a picking up of
10 everything. But quite clearly it indicates that this
11 document must have been written after 30th January.
12 Q. Could we go back to CO1.115; this is in the body of
13 a report, 5th February. Can we have a look at
14 paragraph 12. The report records:
15 "In the two weeks prior to the march, the IRA had
16 been particularly active within the city and the
17 Security Forces were fired on in 80 separate incidents
18 in which 319 rounds were fired, and had a total of 24
19 nailbombs thrown at them. Security force casualties
20 during this period were two killed and two wounded."
21 Do you know where these statistics would have been
22 obtained from?
23 A. No, sir.
24 Q. Was it you who obtained them?
25 A. No, sir.
1 Q. Could we have a look, please, at CO1.117. This is
2 paragraph 13 of the report. Can we highlight H and J.
3 This is recording a discussion in the afternoon of
4 26th January, when the Commander 8th Brigade discussed
5 his outline plan with the Commander of Land Forces.
6 These sub-paragraphs are said to be the directions of
7 the Commander of Land Forces. Item H is:
8 "the maximum number of soldiers were to be 'in the
9 shop window'. They were to be covered by deployment of
10 observation posts and by a very large number of snipers
11 in the anti-sniper role. These observation posts and
12 snipers were to be deployed to every possible vantage
13 point."
14 Did you become aware as to approximately how many
15 snipers there were deployed in the anti-sniper role on
16 that day?
17 A. No, sir, I was never involved in the operational aspects
18 of this case at all.
19 Q. I wondered whether you became aware as a result of your
20 investigations?
21 A. Not that I can recall, sir.
22 Q. The next paragraph, says this:
23 "A full photographic record was to be made of the
24 event, including cine colour photography from
25 a helicopter. The developed and printed films were to
1 be delivered to Headquarters Northern Ireland by
2 1800 hours on 30th January."
3 We know, because we have seen, that there was cine
4 photography from a helicopter. It is in black and
5 white, hence the reference to "colour photography" is
6 slightly puzzling. Did you ever see or become aware of
7 the existence of a cine colour film shot from the
8 helicopter?
9 A. Not that I can recall, sir.
10 Q. Could we come, please, to CO1.122, paragraph 28. This
11 records:
12 "Commander 8 Brigade gave orders at 1607 hours that
13 the whole 1 Para arrest operation should be launched.
14 His orders, given on the radio, were that:
15 "(a) The operation was to be launched forthwith to
16 arrest as many rioters as possible in the area of the
17 junction William Street/Rossville Street.
18 "(b) 1 Para were not to conduct a running battle
19 down Rossville Street and not to get involved in the
20 Northern Ireland Civil Rights Association marchers."
21 Do you know from what source, in a report dated
22 5th February 1972, you would have got the contents of
23 this paragraph 28?
24 A. I can only assume, sir, that it must have come from
25 8 Brigade.
1 Q. When you say "from 8 Brigade," do you mean the Commander
2 of 8 Brigade would have been the source, or somebody
3 else at 8 Brigade said that that was the position?
4 A. I do not know, sir.
5 Q. Can we go back to your statement to this Tribunal,
6 CO1.43, paragraph 31. You describe in this paragraph,
7 if I may summarise it, how a decision was made that the
8 soldiers who fired live rounds should be ordered to give
9 evidence in order that they would be protected against
10 the use of what they said as evidence against them; and,
11 secondly, they would not be able to refuse to speak on
12 the grounds of self-incrimination.
13 Do you know who made the decision to adopt that
14 course?
15 A. No. I was ordered to do that, and I think my orders
16 emanated from either my director or INQ2144, and
17 certainly from General Tuzo himself.
18 Q. For the sake of the transcript, could we have on the
19 screen CO1.92. The genesis of the idea appears to have
20 come from a meeting between the Attorney General, the
21 Director of Army Legal Services and the Director of
22 Personnel Services, the Treasury Solicitor and Counsel
23 for the Army.
24 If we highlight the bottom of the page, under (c),
25 the note records:
1 "Regarding immunity, the Attorney General expressed
2 the view ..."
3 That deals with immunity.
4 A. Yes.
5 Q. Then there is a sentence that reads:
6 "Our Counsel pointed out that statements made under
7 compulsion could not subsequently be used as evidence,
8 and that the position of military witnesses could be
9 safeguarded if it could be shown that they had been
10 ordered to testify. DPS Army and DALS are taking steps
11 to ensure that their position is formally protected in
12 this way."
13 You, I assume, would not have seen this minute?
14 A. No, sir.
15 Q. But you were just told to do what you have just
16 described?
17 A. Yes, sir.
18 Q. Could we have CO1.44, paragraph 32. You describe in
19 this paragraph how you were authorised by the GOC to
20 give those orders to those who had fired, and did so,
21 and how you told the soldiers that any statement they
22 made or evidence they gave could not and would not be
23 used in any subsequent proceedings arising out of their
24 actions, so that they had nothing to fear from telling
25 the truth.
1 Do you recall when you gave these orders?
2 A. No, sir, but it was very soon after I arrived in
3 Ireland.
4 Q. You say that it took place in a gymnasium or some other
5 large room. Who was present? Who were you giving the
6 orders to; the whole of 1 Para, or what?
7 A. I said all the soldiers who opened fire. I think it was
8 only the soldiers from the Parachute Regiment who had
9 opened fire. And my understanding was that when I saw
10 these soldiers -- and I think it must have been in
11 Belfast, which would have been in a Para barracks -- and
12 I was given to understand that I was going to be talking
13 to, and did talk to, all the firers.
14 Q. May we come, please, to paragraph 36 at CO1.45. You
15 describe there, in the fifth line, how it was arranged
16 that you would fly over the Bogside area in the Army
17 helicopter with, you believe, a photographer, to produce
18 additional photographs for use by the Tribunal for
19 identification purposes.
20 Could we have on the screen, please, EP21.1. We
21 know that there was in front of the Widgery Tribunal
22 a series of aerial photographs, whose numbers were
23 EP21.1 and following, and this is one of them.
24 Do you know whether this was one of the photographs
25 that was taken when you flew over the Bogside in an
1 aeroplane?
2 A. I cannot recall that now, sir, but it is quite likely
3 that it is.
4 Q. If we look at the series, can we have a look at page 2
5 of EP21. That is another; page 3 is a third. Page 4?
6 A. Yes, sir.
7 Q. Page 5; page 6. I think that is it. Does that bring
8 back any bells?
9 A. Yes, sir, this is the area we flew over.
10 Q. So it may well be that these are actually photographs
11 taken within a fortnight after Bloody Sunday?
12 A. Yes, sir.
13 LORD SAVILLE: Do you remember the time of day when you were
14 photographing?
15 A. I think it was late morning, sir.
16 LORD SAVILLE: I ask that because there are some shadows
17 from which you can possibly, if necessary, calculate
18 roughly when the photograph was taken.
19 MR CLARKE: Could we have on the screen P1. This is one of
20 a number of photographs upon which soldiers marked the
21 place from which they fired, and the place at which they
22 were or towards which they were firing. It is a little
23 difficult to see but, for instance, if you look
24 carefully, this shot has a line commencing in this
25 derelict building, where my arrow is, which goes to a
1 point at this corner of a gable end on the left-hand
2 side.
3 A. Yes, sir.
4 Q. And there are versions of this and other photographs in
5 relation to the soldiers who fired live rounds. Do you
6 recall this exercise of soldiers marking on photographs
7 where they shot?
8 A. Yes, sir.
9 Q. And do you recall that those were on the photographs
10 that you had taken in the aeroplane when you went round
11 the Bogside?
12 A. I assume that was the case, sir.
13 Q. May we come, please, to CO1.47, paragraphs 44 and 45.
14 You describe in these two paragraphs the relations
15 between the Treasury Solicitor and the Army team being
16 sometimes somewhat strained, as were your personal
17 relations with Mr Hall.
18 I get the impression from these two paragraphs that
19 to describe the relationship between the two teams as
20 "cosy" would be a considerable misstatement?
21 A. Yes, sir.
22 Q. We know that in the event a number of soldiers were
23 called to give evidence, and did so, and a number of
24 soldiers who had given statements were not called. Did
25 the Army Tribunal team play any part in deciding who
1 should or who should not be called?
2 A. No, sir.
3 Q. No say at all?
4 A. No say at all.
5 Q. Do you know who did decide?
6 A. I assumed it was the Counsel for the Tribunal.
7 Q. Could we please have on the screen CO1.64. This is the
8 first page of the report of the Army Tribunal team after
9 the Inquiry was over. If we go to CO1.65, may we
10 highlight paragraph 12. That records:
11 "Between 11th and 19th February 1972 the team
12 prepared volume (IV) of the statements of evidence
13 consisting of the final statements of senior officers
14 and further statements from witnesses clarifying or
15 expanding on previous statements."
16 It then goes on to say:
17 "An analysis of the evidence was prepared and the
18 shot plot was amended after witnesses had been shown
19 aerial photographs of the area."
20 Could we have on the screen now, please, Q7. This
21 is a document which has obviously been minimised to
22 quite an extent for reproduction purposes. Is that the
23 shot plot to which you would have been referring?
24 A. It certainly is a shot plan, and it certainly would have
25 been the sort of thing that I was referring to, sir,
1 yes.
2 Q. Could we have a look at the very top. At the top of the
3 plan there are the words, difficult to pick out, but
4 what they say is "Revised 18th February 1971."
5 There are two possibilities. One is that the
6 underlying plan, without any markings on it, was
7 produced in its revised state, on 18th February 1971,
8 that is a year before Bloody Sunday, and it is that
9 document that was used to plot the shots of those who
10 fired. The alternative is that February 1971 is
11 a misdate, and in fact this is the revision of the shot
12 plan, dated 18th February 1972.
13 Do you have any idea as to which of those two
14 possibilities is the correct one?
15 A. I am sorry, sir, I do not.
16 Q. May we come, then, to CO 1.65, paragraph 15. That
17 records:
18 "During the course of the hearing the solicitor for
19 the Tribunal, Mr Hall, ruled that all witnesses for the
20 Army from CLF down must be interviewed by the Tribunal
21 and further statements taken. This entailed
22 considerable difficulties and the statements are
23 included in volume (v) of the statements. In view of
24 the need to protect the interests of individuals,
25 a member of the Team was present when each witness was
1 interviewed."
2 Am I right in thinking that, in a few cases,
3 statements were taken in the first instance by your
4 team, particularly in the case of General Ford,
5 Brigadier McClellan, Colonel Wilford and Major Loden?
6 A. I think they all had made statements, yes.
7 Q. I think also there were a couple of members of your
8 staff who had in fact been seconded to your team from
9 the Treasury Solicitor?
10 A. Yes, sir.
11 Q. Could we have on the screen B.1154.006. This is a note
12 which somebody has taken in the course of interviewing
13 the Commander of Land Forces on 2nd March 1972. It
14 says:
15 "CLF does not want to make any reference to JSC.
16 The whole of paragraph 17 should be omitted."
17 Do you know whose handwriting this is?
18 A. No, sir.
19 Q. It is not yours?
20 A. I do not think so, sir, no. It is pretty like mine,
21 sir, but I do not think it is.
22 Q. Regardless of whose handwriting it is, do you have any
23 recollection of the Commander of Land Forces not wanting
24 there to be a reference in his statement to the Joint
25 Security Committee; and, if so, why?
1 A. No, sir.
2 Q. Could we go back to CO1.66, paragraph 24. This is in
3 the portion of the report which makes recommendations
4 for consideration in future cases. It records:
5 "24. A Grade 2 Staff Officer is essential to
6 supervise administration, co-ordination and liaison. He
7 should also maintain a daily journal for future
8 reference and the preparation of reports."
9 Was a daily journal maintained during the
10 Widgery Inquiry?
11 A. As far as I know, no. In fact, I am fairly sure it was
12 not, because otherwise I would not have made that
13 comment.
14 Q. Sir, I am about to go on to a new topic?
15 LORD SAVILLE: We will take a short break for about 10
16 minutes, please.
17 (10.30 a.m)
18 (A short break)
19 ( 10.35 a.m)
20 MR CLARKE: Could we have on the screen KH6.14, please.
21 This is the best copy we have of a document that is in
22 fact the last document in your bundle, CO1.273, though
23 you will have it in an overredacted form, in the sense
24 that a number of redactions have been made which need
25 not have been made. It is dated 5th March 1972. The
1 note is a note by John Heritage, then in the Treasury
2 Solicitor's team for the Tribunal, and is his account of
3 an interview with Soldier V. What he has written, is
4 this:
5 "In the course of my preliminary interview with V,
6 before recording his statement, I invited him to tell me
7 his account of what happened. He told me that he saw
8 a man throw a bottle with a lighted fuse at its end.
9 The bottle landed near S, but the fuse came out in the
10 air and the bottle did not explode. He said he kept an
11 eye on the man who had thrown it, as he moved back in
12 the crowd. As soon as the movement of the crowd gave
13 him a clear sight of the man, he shot at him and
14 believed that he had hit him. In answer to Major
15 Bailey, he said he thought the man might have been
16 stooping just before he shot. I asked him if he could
17 see anything in the man's hand. He replied 'No, sir,
18 I cannot honestly say that I did'. Major Bailey then
19 intervened and said he wished to discuss the position of
20 this witness with Colonel Overbury before we proceeded.
21 I agreed.
22 "Colonel Overbury requested that this interview with
23 V be held over until he had had an opportunity to
24 discuss the matter with Counsel. I agreed."
25 If we look at the full page, in manuscript, if we
1 highlight the next paragraph in manuscript, there is
2 a note initialled by Mr Heritage:
3 "Major Bailey confirms that this is a fair and
4 accurate record of what V said in our presence."
5 Can we go back to the first paragraph in typescript.
6 What appears there to have been said is, at the initial
7 stage, V had seen someone throw a bottle which had
8 landed and which did not explode. He then kept his eye
9 on the man who had thrown it and, subsequently, shot at
10 him. When asked if he could see anything in his hand,
11 he said "I cannot honestly say that I did".
12 I appreciate that you were not present on this
13 occasion, but Major Bailey is, unhappily, no longer
14 alive. I think I can properly ask you this: if that
15 account is correct, what reason was there for Major
16 Bailey to intervene to ask for the interview with V to
17 be held over?
18 A. I do not know. My recollection is that Mr Heritage was
19 going to caution V.
20 Q. I appreciate that. If we take this note in its own
21 terms, and we note what Major Bailey is recorded to have
22 agreed, there is not any reference to Mr Heritage
23 cautioning or being about to caution this soldier; is
24 there?
25 A. No, sir.
1 Q. Would you agree with this: by this time, as I understand
2 it, the soldiers who fired, of whom V was one, had been
3 ordered to give evidence by you in the most formal
4 terms?
5 A. Yes, sir.
6 Q. And were therefore, so it was thought, incapable of
7 incriminating themselves?
8 A. Yes, sir.
9 Q. In those circumstances, and assuming for the moment that
10 no reference to a caution had been made, would it be
11 fair to say that there was no warrant for holding the
12 interview back?
13 A. On that basis, I agree with you, sir.
14 Q. On that basis can one see any reason for adjourning the
15 interview, other than a wish to save the soldier from
16 making any further admissions?
17 A. I cannot really say, because the subsequent discussion
18 was done on the basis of whether or not he should be
19 cautioned.
20 Q. Your recollection, as I understand it, is that Major
21 Bailey telephoned you and said that the Tribunal wished
22 to caution V; is that right?
23 A. That is my firm impression, sir, yes.
24 Q. How sure of that are you now in the light of this note,
25 which does not seem to make any reference to the
1 caution?
2 A. Well, I am as certain as I can be because I have the
3 clear recollection of the discussion with Mr Heritage,
4 which was on the basis that if he was going to take
5 a statement from this soldier, he was going to caution
6 him if he continued to say these things. And as he had
7 already said these things, his original statement was in
8 those terms.
9 Q. You may well have had a subsequent discussion with
10 Mr Heritage; indeed, I am sure that you did. But how
11 confident are you in your recollection that when Major
12 Bailey first telephoned, he said at that stage that
13 Heritage proposed to caution V?
14 A. That is my -- that has always been my recollection.
15 I cannot recollect the exact words he said, but I feel
16 comfortable in saying that I am very certain that the
17 issue was one of caution or not.
18 Q. As I understand it, you thought that that, the fact that
19 he was about to administer a caution, gave rise to
20 a serious problem?
21 A. Yes, sir.
22 Q. Can you explain to me exactly what the problem was?
23 A. The problem was that if Soldier V was cautioned, he
24 would be entitled to refuse to make a statement; he
25 would have been entitled to have independent legal
1 representation. This would then have put all the other
2 soldiers in a position where they may have felt that
3 they were entitled to do the same, and it would have
4 produced a situation in which I honestly do not know how
5 one would then have been able to proceed, on the basis
6 that all the soldiers had been ordered to give evidence
7 so that they would tell the complete truth.
8 Q. You thought this might lead, is this it, to a position
9 where they all declined to speak?
10 A. I do not know that at the time that I had that in mind.
11 What I had in mind at that time was that it had been
12 agreed that they would not be cautioned; they had been
13 ordered to speak and so I had to go and discuss it with
14 Counsel because I foresaw all sorts of problems if
15 a caution was administered, as to, you know, the ability
16 to be able to supply the Tribunal with valid statements.
17 Q. Could we look, please, at paragraph 60, CO1.53, of your
18 statement. You say there.
19 "As a result [as a result of this problem]
20 I consulted with Mr Gibbens, who said he would speak to
21 Mr Stocker and to Mr Hall, and it was agreed that
22 I would speak to the official concerned and tell him
23 that I intended to repeat my order to V that he was
24 obliged to give evidence and that, if he was still
25 cautioned, I would order him to stay silent."
1 I have no doubt, because there is a note to that
2 effect, that you consulted with Mr Gibbens. How
3 confident are you that at this stage Mr Gibbens said
4 that he would speak to Mr Stocker and to Mr Hall?
5 A. That is my recollection, sir.
6 Q. The reason I ask it is this: Mr Stocker was Counsel to
7 the Tribunal and Mr Hall was solicitor to the Tribunal?
8 A. Yes, sir.
9 Q. And Mr Heritage was on Mr Hall's team, was he not?
10 A. Yes, sir.
11 Q. If Stocker and Hall had been consulted at this stage
12 there would be no reason, would there, why they could
13 not simply have explained to Mr Heritage that there was
14 no need for a caution in relation to this or any other
15 witness in order to avoid self-incrimination because the
16 orders that had been given already would do the trick,
17 would prevent a soldier from incriminating himself?
18 A. Yes, sir.
19 Q. You would not have to wait and see if that step was
20 taken, whether Mr Heritage took the step of
21 administering the caution, and, if he did so, ordering
22 the soldier not to speak?
23 A. I think as an interim measure that would have been
24 necessary because, until Mr Gibbens had spoken to
25 Mr Stocker and Mr Hall, and until the matter had been
1 discussed further, I understood that it was
2 Mr Heritage's intention to caution this Soldier V.
3 Q. I follow that. But you and, as I understand it, others
4 were proceeding upon the basis -- including, presumably,
5 Mr Hall -- that, if orders were given, any subsequent
6 statement could not be used against the soldier; is that
7 right?
8 A. I am not sure about that, sir, I am not sure that had
9 been discussed with Mr Hall. I had no party to any
10 discussion with Mr Hall on that basis.
11 Q. As a result of the consultation, was it your
12 understanding that both Mr Gibbens and Mr Stocker and
13 Mr Hall had agreed that you would adopt this procedure
14 of ordering him to give evidence and then waiting to see
15 whether Mr Heritage cautioned him; and then, if he did,
16 you would order him to stay silent?
17 A. Sir, I think the sequence of events was that I asked
18 Mr Heritage to stop the interview. I then saw
19 Mr Gibbens, we discussed the matter, and Mr Gibbens said
20 that he would go and discuss the matter with Mr Stocker
21 and Mr Hall. And I then went back and told Mr Heritage
22 that I would order the soldier to continue to give his
23 evidence, but that, if Mr Heritage cautioned him,
24 I would have to stop him in order to go back to
25 Mr Gibbens to tell him what had happened.
1 LORD SAVILLE: What I do not quite understand, Colonel
2 Overbury, is why you stopped the interview.
3 A. In order to get advice from Mr Gibbens, sir.
4 LORD SAVILLE: That is at the moment what I do not
5 understand. What was the reason for stopping the
6 interview and what was the advice you wanted to give?
7 A. Because if Mr Heritage wished to caution this soldier,
8 it would mean that the soldier would be able to refuse
9 to -- the soldier would have the right to remain silent,
10 if he decided that he did not wish to make a statement
11 on the grounds that it might incriminate him.
12 LORD SAVILLE: I follow that. As Mr Clarke pointed out to
13 you, if we look at the note, the typewritten part of the
14 note says nothing about a caution at all, does it.
15 A. No, sir, but that was my impression of the subsequent
16 telephone call that I had with Major Bailey, that there
17 was a problem, that he was likely to be cautioned.
18 Otherwise I would entirely agree with you, sir, there
19 would have been no reason for any intervention at all.
20 MR CLARKE: Can we follow the sequence, because I think what
21 you have just said as to the sequence may well be
22 correct. Can we go back to KH6.14, and can we highlight
23 the bottom paragraph, because what Mr Heritage has
24 recorded is this:
25 "After discussing the matter with Mr Gibbens,
1 Colonel Overbury told me that he proposed to order V to
2 make a statement. I said that if V made a statement,
3 I would record it but, before doing so, I would warn V
4 that his evidence might incriminate him. Colonel
5 Overbury said that if such a warning were to be given,
6 he would order/advise V not to make a statement."
7 That does tie in, does it not, with your
8 recollection, that you spoke to Mr Gibbens. He may well
9 have said "I will go and talk to Stocker and Hall" but,
10 before you had heard the upshot of that discussion, you
11 went back to Heritage?
12 A. Yes, sir.
13 Q. The second point that arises on this is that Heritage is
14 here making a note of a discussion with you where you
15 told him that you would order V to make a statement; and
16 he, Heritage, says that in that event he would
17 administer a caution?
18 A. Yes, sir.
19 Q. Would you agree it rather suggests this is the first
20 time that a notion of a caution had entered into
21 Heritage's head?
22 A. Not necessarily, sir, no.
23 Q. You then told him that if a warning was to be given, you
24 would order V not to make a statement. Why?
25 A. In order to go back and report to Mr Gibbens.
1 Q. Just a moment. You had ordered V to make a statement in
2 the first place?
3 A. Yes, sir.
4 Q. Then Heritage says "Well, if you do that I am going to
5 caution him". That would have the effect that he would
6 not have to speak; is that right?
7 A. Yes, sir.
8 Q. So he had a free choice: he could either speak or not.
9 Why were you ordering him not to, if the whole aim of
10 this exercise was to ensure that soldiers did speak?
11 A. Mr Heritage had not yet taken the statement from Soldier
12 V. And he said that, if he did take a statement from
13 him, he would first caution him, in the light of the
14 remarks that he has recorded at the top of the paper.
15 In those circumstances he would have had the right to
16 refuse to speak, and that would have been a matter of
17 record. And I did not think that that would be the
18 correct way of proceeding, because we wanted the
19 soldiers to make the statements in accordance with what
20 they had said they had seen and done. And to put them
21 in a position where they might have the right to
22 refuse -- because the soldiers were not charged, they
23 were not on trial -- the whole idea was that they should
24 be free to be able to tell the truth and give evidence
25 with no risk of incriminating themselves during those
1 particular proceedings. And I was worried that if
2 a caution was administered that might make it difficult
3 to proceed on the basis of ordering them to give
4 statements, and it might affect the position of the
5 other soldiers as well.
6 So, for that reason, I asked Mr Heritage to stop
7 until we had got advice from our superiors, his and
8 mine.
9 Q. I want to make sure I understand that. Does it come to
10 this, that the fact that Heritage was proposing to
11 caution this witness, that he did not have to speak,
12 cast doubt on the plan that had previously been in
13 existence that, because they were ordered to speak,
14 anything they said would not incriminate them?
15 A. Yes, I was not absolutely sure at the time. I needed
16 advice as to what would be the significance of
17 Mr Heritage administering a warning to -- a caution to
18 one of the soldiers, telling him that he did not have to
19 say anything unless he wished to do so. And I was very
20 concerned that this might make it difficult for the
21 other soldiers to continue. And so I needed advice, so
22 I asked for it. But I did not want the interview to
23 continue until I had got that advice.
24 Q. Did you have a view at that stage as to what would be
25 the evidence, so far as self-incrimination was
1 concerned, if Soldier V did speak, having had a caution
2 administered to him?
3 A. No. My recollection is that I was concerned that there
4 might be a problem.
5 Q. Can we go back to KH6.13 --
6 LORD SAVILLE: Before we do that, I am not sure I am
7 following that, Colonel Overbury. According to this
8 note of Mr Heritage, you spoke to Mr Heritage after you
9 had discussed the matter with Mr Gibbens.
10 A. Yes, sir.
11 LORD SAVILLE: Is that your recollection?
12 A. Yes, sir.
13 LORD SAVILLE: Because what you said a moment or two ago, no
14 doubt it is me misunderstanding what you are saying, is
15 that you were going to take some further advice from
16 Mr Gibbens at a later stage.
17 A. Well, sir, the sequence of events, as I recall them, was
18 that I received a communication of some sort. I was
19 actually in the building at the time, because this was
20 a Sunday and Major Bailey and I were sitting in on the
21 proofs that were being taken for Mr Hall, for some of
22 them. So I had a communication from Major Bailey that
23 there was this problem and, as I understand it, Major
24 Bailey had said "It is a question of whether or not he
25 is going to get cautioned".
1 I asked him to stop the interview, which he did.
2 I then went to see Mr Gibbens and discussed it with him,
3 and Mr Gibbens's view was that I should go back and
4 order V to make a statement and that, if Mr Heritage
5 announced that he was going to caution him, that
6 I should then stop the interview in order to go back to
7 Mr Gibbens and report in order that a final decision
8 could be made by our superiors.
9 LORD SAVILLE: It is not quite what this note records, is
10 it? You were there; I was not. On the face of it it
11 looks as though you were apprised of the problem. You
12 spoke to Mr Gibbens -- and you must correct me at any
13 moment if your recollection differs from this.
14 Mr Gibbens says, "Provided they are ordered to
15 speak, there is no question of anybody incriminating
16 himself, because you cannot incriminate yourself if you
17 are simply obeying an order". You then go back to
18 Mr Heritage, and you tell Mr Heritage that you are
19 proposing to order V to make a statement.
20 A. Yes, sir.
21 LORD SAVILLE: The purpose of proposing that was so that
22 there was no question of V being able to incriminate
23 himself.
24 Mr Heritage then says to you "Well, I am going to
25 warn V that his evidence might incriminate him." So in
1 one sense it would look as though you had failed to
2 persuade Mr Heritage that there was no need to give any
3 caution. Am I right so far, or probably right?
4 A. Yes, I think that is correct.
5 LORD SAVILLE: But then we go to the last sentence, which
6 says:
7 "Colonel Overbury said that if such a warning was to
8 be given, he would order/advise V not to make
9 a statement."
10 It is that I am not following at the moment. Why
11 would you order/advise V not to make a statement?
12 A. So that he would not be cautioned, and -- before making
13 that statement, and -- until we had got advice from our
14 superiors. I did not want a caution to be administered
15 because I felt that might invalidate the order, or
16 affect it, and I wanted to get this straight with
17 Counsel, to whom I went.
18 So it seemed to me when Mr Heritage said he still
19 wanted to do that, my response straight off was to say
20 "Then I would have to stop this because we need to get
21 further advice".
22 LORD SAVILLE: It is the "because we need to get further
23 advice bit" that does not appear in Mr Heritage's note.
24 It simply appears that you are saying to Mr Heritage "If
25 you do give a caution I am going to tell him not to give
1 evidence".
2 A. Yes, and I probably did say that, I am quite sure he is
3 correct. But my intention was to go back and get
4 further advice. There was no question of these soldiers
5 not making proofs of evidence eventually, that was what
6 Mr Hall had decided should happen and that was what
7 would happen, but it was the way this particular
8 statement was going to be made that was giving me
9 concern, sir.
10 MR CLARKE: Can we be clear about your discussions with
11 Mr Gibbens. Had Mr Gibbens said "What I advise you to
12 do is to go and order him to make a statement", or had
13 he said "What I advise you to do is to go and order him
14 to give a statement and, if Heritage cautions him, tell
15 him not to say anything"?
16 A. I am not sure of that, sir.
17 Q. You do not know which of the two it is?
18 A. No, sir.
19 Q. Can we have on the screen KH6.13? This is the page to
20 which the page we have just been looking at is attached.
21 It is marked "confidential." It has obviously been
22 shown to Mr Hall, because it is marked "Mr Hall to see",
23 and his initials are on the right. It has been marked
24 for Mr Shepherd to file by Heritage, and somebody has
25 made a note:
1 "Mr Stocker discussed with Mr Gibbens statement to
2 be taken without further warning".
3 Was that up-shot notified to you?
4 A. I think it must have been, sir.
5 Q. So in the event, is this right, Mr Heritage did not
6 administer a caution?
7 A. No, I do not think he even took the statement, sir.
8 Q. No, he did not, it was taken by somebody else. Could we
9 have on the screen B802. This is a portion of Soldier
10 V's Widgery statement. Were you present when that was
11 taken?
12 A. I do not think so, sir, no.
13 Q. Do you know whether anybody in your team was; and, if
14 so, who?
15 A. No, sir, I do not. The statement -- it does not
16 indicate when it was taken or by whom it was taken, I do
17 not think.
18 LORD SAVILLE: Was the practice to have a member of the Army
19 team present while the Inquiry took a statement?
20 A. It was in principle, yes, sir. On that particular day
21 Major Bailey and I were certainly present and sitting in
22 on statements that were being taken. I sat in on five,
23 I think.
24 MR CLARKE: Could we highlight the top paragraph. What
25 Soldier V came to say, was this:
1 "My attention was then drawn to a young man with
2 longish dark hair who was wearing a dark suit and
3 a light shirt. He was of medium height ... He was
4 holding in his right hand a bottle with a cotton-waste
5 fuse in it which was lit. I took aim at this man but my
6 view of him was obscured for a fraction of a second,
7 probably by someone running in front of him. I kept my
8 sights on this man and fired immediately I had a clear
9 aim. I fired one aimed shot. The man was thrown
10 backwards on to the ground. All these events took place
11 almost instantaneously. There was a lot of glass and
12 debris about, but I do remember seeing a smoking fuse
13 although there had been no noise of a petrol bomb going
14 off. I then realised that he had thrown the bomb before
15 I had shot him."
16 Would you agree that there is a marked difference
17 between what is contained in this statement and the
18 account initially given to Mr Heritage?
19 A. Yes, sir.
20 Q. Do you know whether Soldier V was given advice by
21 somebody in your team before he came to give this
22 account?
23 A. No, sir.
24 Q. You do not know whether he was or not?
25 A. I do not know whether he was or not.
1 LORD SAVILLE: Do we have any date on this statement?
2 MR CLARKE: I am not sure. Can we try the next page? It
3 may have a date. Can we try page 1? No, I am afraid we
4 do not have a date for this; I simply cannot tell.
5 LORD SAVILLE: Is it likely, Colonel Overbury, in view of
6 the difficulty that had arisen with V about the caution,
7 that somebody from the Army team would have been present
8 when the caution problem was overcome and the statement
9 was being taken.
10 A. Yes, sir. Well, I would have expected somebody to be
11 present from the team.
12 LORD SAVILLE: It was quite an important statement, was it
13 not? If we take the record made by Mr Heritage, it is
14 quite an important record.
15 A. Yes, sir.
16 LORD SAVILLE: In fact, very important indeed.
17 A. Sir.
18 LORD SAVILLE: So one would have expected, tell me if I am
19 wrong, that when that individual came to be interviewed
20 by the Inquiry staff, there would be a member of the
21 Army team there to keep an eye on things?
22 A. Yes, sir.
23 MR CLARKE: Major Bailey was there when Mr Heritage
24 interviewed V. Is the likelihood that Major Bailey was
25 there when V was subsequently interviewed, by whoever at
1 the Treasury Solicitors team did it?
2 A. Yes, because I was occupied with other soldiers and he
3 had originally been occupied with V. I would imagine it
4 would have been him who would have had the function of
5 sitting in.
6 Q. Is it likely that Major Bailey would have said to
7 Soldier V "You do realise that the account that you have
8 given to Mr Heritage shows that you shot a man when he
9 was not posing any threat to you"?
10 A. That would have been most incorrect if he had.
11 Q. May we have on the screen B121. This is Soldier F?
12 A. Yes, sir.
13 Q. This is the statement that he gave to the Military
14 Police at about 2 o'clock in the morning on
15 31st January 1972. Could we highlight the second half
16 from "We advanced ..."
17 What he said in this statement, was this:
18 "We advanced about 30 yards and came under sniper
19 fire which sounded like rifle fire. These shots came
20 from the direction of Rossville Flats. We were too far
21 from the flats to pinpoint the gunmen at this stage. We
22 continued to advance and, as we got nearer to the flats,
23 I could see that there was a barricade across the street
24 at the far end of the flats. I estimate there were
25 about 200 rioters in this area at that time. They were
1 throwing stones, bottles and other missiles at us and
2 other troops as they advanced. I saw at least two
3 nailbombs explode as we advanced.
4 "We took up position behind a wall on the right-hand
5 side of Rossville Street, about 40 yards short of the
6 Rossville Flats. We again came under sniper fire from
7 the flats. I estimated that this gunfire was coming
8 from the second floor of the flats and the third window
9 along. I fired three aimed shots at this window, and
10 I saw all three shots strike the windows.
11 "After these shots the sniper fire stopped and I saw
12 about 30 to 40 rioters leave the barricade and go to the
13 right behind a block of flats out of our sight.
14 "On seeing this we moved position to our right to
15 Glenfada Park where I saw one of the men light
16 something. I saw it fizzle and spark and I realised it
17 was some form of bomb. He raised his arm as if to throw
18 the bomb. I fired two aimed shots at the man. The
19 first I saw strike him in the shoulder and the second
20 strike him in the stomach. The bomb did not explode.
21 "By this time other members of my unit had joined us
22 and we advanced towards the rioters. The rioters
23 dispersed. The remainder of my team gave me cover when
24 I checked around the corner of a building. Around the
25 corner I saw huddled against the wall about 20 people,
1 19 men and one woman. I called to the remainder of the
2 team and we arrested this 20 people.
3 "We then he is sorted the prisoners back towards
4 Rossville Street, covering each other as we moved back.
5 By this time we were ordered to join our vehicles, which
6 were now near the Rossville flats. We had handed the
7 prisoners we had arrested to the Military Police."
8 Pausing there for a moment, at this stage he has
9 referred to firing three shots at a window in the
10 Rossville Flats, moving into Glenfada Park and firing
11 two shots at a man with a nailbomb.
12 The bottom of the page, please. He then goes on to
13 say:
14 "We got into our vehicles and stayed in position for
15 a couple of minutes when our radio operator said 'There
16 is a sniper up in the flats'. I jumped out of the
17 vehicle and took up a firing position beside the
18 vehicle. The radio operator told me where he had seen
19 the gunman and I saw something move in the window.
20 I fired approximately four aimed shots at this window
21 and I saw all four shots strike in the area of the
22 window.
23 "I changed position to near the vehicle parked in
24 front of ours. At this time a man appeared in a window
25 in the second from the top floor of the flats. He had
1 a rifle and fired two shots at our position. I then
2 fired four aimed shots at this man, and I saw the four
3 shots strike the area of the window."
4 So at this stage he is saying: three aimed shots at
5 a window in the flats; two shots in Glenfada Park at
6 a man with a nailbomb; and a total of eight shots at
7 a sniper in the Rossville Flats.
8 If we could then go to B129. This is a subsequent
9 statement of Soldier F, a supplementary statement. Can
10 we highlight the second half, from "Myself and G". What
11 he said there was:
12 "Myself and G of my company ran down an alleyway and
13 came into a square formed by the three blocks of flats
14 and a block of garages."
15 He goes on to describe seeing three men on the other
16 side of the square. He then says:
17 "I shot and hit one man as he attempted to throw an
18 object which looked like a nailbomb. I saw G fire and
19 hit another of the men, who was carrying what appeared
20 to be a rifle. The third man ran off ..."
21 He is referring to one shot in Glenfada Park,
22 although he may be referring to more because he does not
23 specify the exact number. If we go to the top of the
24 next page, he then describes being ordered to remount
25 their vehicles and withdraw:
1 "The vehicles were positioned level with the
2 northeast wall of block 1 ... As we entered the vehicles
3 three shots were fired at us from a window on the second
4 floor ... I returned two rounds at the gunman and I saw
5 G return one shot."
6 So eight rounds seem, prime facie, to have reduced
7 themselves to two. Can we come, please, to B135. This
8 is, as appears from the bottom, a statement, dated
9 19th February 1972, taken by you at Lisburn Barracks.
10 Could we highlight the three central paragraphs. He
11 says in this statement:
12 "I have now read my previous statements and looked
13 at maps and photographs of the area, and realise that
14 I have mistaken the sequence of events.
15 "After we first left our vehicles in the
16 Rossville Flats area, I did not, as I said earlier, fire
17 at a window in the Rossville Flats. I fired these shots
18 later. I did however fire; I aimed round at a man I saw
19 behind the barricade about 40 yards from me who was
20 about to throw a bomb. It was a large object and I saw
21 sparks coming from it. As I said earlier, two nailbombs
22 had earlier exploded near us as we moved towards the
23 Rossville Flats."
24 Pausing there, the account is now that the first
25 shot was at a man behind the barricade about to throw
1 a bomb.
2 The next paragraph:
3 "When I moved with G into Glenfada Park I fired two
4 rounds, as I said earlier, at another man who was about
5 to throw a bomb. The object in his hand was definitely
6 a bomb because it was fizzing. Immediately after this
7 I ran along the eastern wall of Glenfada Park to the
8 corner. As I did so I heard pistol shots coming from
9 the area of the wall at the far end of the
10 Rossville Flats. I shouted 'There is a gunman' and
11 I dropped to one knee and took an aim position. I saw
12 a man near the wall facing in my direction who turned as
13 if to run. I saw he had an object in his hand. He was
14 the only person in the area from which the gunfire had
15 come. The object in his hand was large and black like
16 an automatic pistol. I fired two rounds at this man and
17 he fell to the ground. I then saw 20 people, 19 men and
18 one woman standing near me huddled together at the end
19 of the flats in Glenfada Park."
20 Pausing there, we still have two shots in
21 Glenfada Park, but we now have two shots at a man with
22 a pistol at the area of the wall at the far end of the
23 Rossville Flats.
24 Then he says, this:
25 "After I had returned to my vehicle and came under
1 fire again, as I described earlier, I fired three shots
2 at the second floor window of Rossville Flats. I also
3 fired a further five rounds at men firing in my
4 direction from the windows of Rossville Flats. I can
5 work out the number of rounds I fired on the last two
6 occasions from the ammunition check I made very shortly
7 afterwards when I counted seven rounds left in my
8 magazine."
9 We still have the eight rounds in all at windows in
10 the Rossville Flats.
11 My question, after that long preamble, is this: can
12 you recall the circumstances in which you came to take
13 this statement on 19th February?
14 A. Not directly, sir, no.
15 Q. We know the forensic evidence was that a bullet from the
16 rifle of this soldier was lodged in the body of
17 Michael Kelly, who was shot at the barricade. Would it
18 be right or fair to infer that by this stage you had
19 learnt that this soldier must have shot a man at the
20 barricade?
21 A. No, sir. I have actually been shown a statement by
22 Counsel to suggest that that knowledge did not come into
23 our hands until much later. So I do not think I could
24 have known it then.
25 Q. When you say "a statement by Counsel", do you mean
1 a statement at the Widgery Tribunal?
2 A. I was shown a statement, which was apparently signed by
3 Professor Simpson on 28th February, indicating that he
4 had then carried out an examination and had identified
5 the rounds that killed Mr Kelly from a numbered rifle.
6 Subsequently that numbered rifle, I suppose, was
7 identified as being F's rifle.
8 So I do not think I could have known then, sir.
9 Q. I am not quite sure what is the document to which you
10 are referring, and it was not Professor Simpson who
11 discovered it?
12 MR ELIAS: Sir, would it help if I referred my learned
13 friend to D56.
14 MR CLARKE: Thank you. This is a document dated
15 28th February which confirms that the bullet from the
16 deceased, Michael Kelly, is a bullet attributable to
17 a particular rifle, which was the number of the rifle of
18 Soldier F.
19 A. Yes, sir.
20 Q. Your point?
21 MR ELIAS: Sir, I think, with respect, the word "confirms"
22 might be misleading because we believe the document says
23 "I have compared", and it does seem that it is giving
24 the result, in other words, apparently on that day.
25 MR CLARKE: Anyway, that is the document that you are
1 referring to?
2 A. Yes, sir.
3 Q. If it was not the discovery that F's bullet had landed
4 in Michael Kelly's body at the barricade, do you know
5 what it was that caused you to re-interview, now for at
6 least the third time so far as F was concerned, this
7 soldier?
8 A. I do not have a direct recollection of this, sir, but
9 I did interview four soldiers who were brought to
10 Lisburn Barracks on 16th February, four soldiers from 22
11 Light Air Defence Regiment, and I think that was in
12 connection with the problem of trying to get clear
13 evidence about the three young men that were shot at the
14 barricades.
15 Q. Right.
16 A. And there was some difficulty because there was -- the
17 evidence of these soldiers from the 22LAD were a little
18 confusing.
19 So because this was at the period of the exercise of
20 cross-checking, and because the photographs -- the
21 aerial photographs were available, I saw these four
22 soldiers with an attempt to try and see if we could get
23 some more clarification on that.
24 Now, Soldier F, on the various somewhat confused
25 statements that he had made -- because they were
1 sequentially not consistent -- it must have appeared at
2 the time that it would be necessary to interview him as
3 well again, and that would have been part of this
4 cross-checking process which was necessary to get done
5 quickly at that time.
6 So that is my recollection, and of course we had the
7 advantage of having had these aerial photographs, so
8 that F could be taken through his original statements
9 and, in the light of examining the photographs, to try
10 and recollect as best he could the sequence of events.
11 And he then must have said to me "Look, I have my
12 sequence wrong, that is what actually happened".
13 He then made a series of statements which, even then
14 of course, were not consistent with what he had said
15 before. But he made that statement, and that statement
16 went forward with all the other statements.
17 Q. It is not, in fact, just a problem about sequence, is
18 it? If we look at the statement you took from him, he
19 has now recalled --
20 A. Yes, he has.
21 Q. -- shooting somebody dead at the barricade?
22 A. Yes, he has.
23 Q. And firing at a man with a pistol?
24 A. Yes, he has, sir.
25 Q. Neither of which were recorded in any of his previous
1 statements?
2 A. That is true, sir.
3 Q. Could we have B164. Could we highlight the top of the
4 page. This is part of Soldier F's examination at the
5 Widgery Tribunal. He is being re-examined by
6 Mr Gibbens, and he is asked this:
7 "Question: You have been asked a number of times why
8 you did not refer to the shooting of the man with the
9 pistol behind Rossville Flats until 19th February [that
10 is when you took the statement]. What brought it to
11 your mind then? What was the change that led you to
12 make the statement on the 19th?
13 "Answer: At that time I was shown aerial
14 photographs of the immediate area and I then realised
15 I had shot a man there.
16 "Question: Was that the first time you had been
17 shown aerial photographs of the area?
18 "Answer: Yes.
19 "Question: Otherwise you had merely had a map?
20 "Answer: Yes.
21 "Question: And the photograph reminded you of the
22 position, did it?
23 "Answer: Yes."
24 Insofar as Soldier F says that when he made the
25 statement on the 19th he was shown aerial photographs of
1 the area, that is accurate as I understand it?
2 A. Yes, sir.
3 Q. Can you help me on one other matter which arises out of
4 this. Could we have B149. Can we highlight the first
5 half. This is part of the examination of Soldier F by
6 Mr Gibbens. What he is asked, is this:
7 "Lance Corporal, since you had fired shots during
8 the day, did you have to make a statement to the
9 Military Police when you got back to barracks that
10 night?"
11 He is asked to put the question again.
12 "Question: Did you have to make a statement to the
13 SIB that night as to the firing of your rifle?
14 "Answer: Yes, sir."
15 He answers a series of questions to the effect that
16 he signed the statement at 2.05. He had never been in
17 the Bogside before. He only knew the area from looking
18 at the map. Then he is asked, this:
19 "Question: Did you say anything to the police, the
20 SIB, about the shot that you have told the Court you
21 fired from the southern end of Glenfada Park along
22 behind the Rossville Flats? Do you know where I mean?
23 "Answer: Yes.
24 "Question: Where you shot a man who had a pistol who
25 turned away to your right, his left, when you hit him?
1 "Answer: No, sir.
2 "Question: Did you mention that at all?
3 "Answer: No, sir.
4 "Question: Why did you not tell the SIB about that?
5 "Answer: At the present time, sir, it slipped my
6 mind what with the other events that happened.
7 "Question: What with the other events?
8 "Answer: Shooting the other two bombers."
9 Then he repeats it:
10 "Mr Gibbens: what had you been doing on return to
11 barracks that evening:
12 "Answer: Everybody was making statements.
13 "Question: Yours was not made or signed until five
14 past two in the morning?
15 "Answer: Yes, sir."
16 That line of questioning brought out the fact that
17 Soldier F had not mentioned, until you took a statement
18 from him on 19th February, the fact that he had fired
19 two shots at a man said to have a pistol at the bottom
20 of the Rossville Flats.
21 There was another thing he had not mentioned until
22 your statement of 19th February, namely that he fired at
23 a man at the barricade and killed him.
24 You are not Mr Gibbens, of course. Do you know why
25 it was that the omission of one of those matters was
1 elicited by Mr Gibbens, but not the other?
2 A. No.
3 Q. Could we go back to B121. This is the first statement
4 of Soldier F. In the bottom right-hand corner of the
5 first page, somebody has written in manuscript:
6 "Not referred to in new statement".
7 Do you know whose handwriting that is?
8 A. No, sir.
9 Q. If we look at the next page, there is some more
10 manuscript in the top right-hand corner:
11 "Shot at window of flats. Not referred to in
12 evidence."
13 And later down:
14 "Pistol from flats. Not referred to in [something]
15 the statement."
16 Do you know whose handwriting that is?
17 A. No, sir.
18 Q. If we go over to B123, somebody has written in
19 manuscript:
20 "Many discrepancies from this original statement.
21 Can you spin it out until 1.00 pm."
22 Do you know whose handwriting that is?
23 A. No.
24 Q. When Mr Gibbens examined Soldier F to bring out the fact
25 that he had not referred to the two shots at a man with
1 a pistol until the statement that you took from him on
2 19th February, he did so after the lunch adjournment on
3 the day in question. It looks to me, but I may be quite
4 wrong, as if somebody had alerted themselves to the
5 grave inconsistencies between the original statement and
6 the statement given to you, and endeavoured to ensure
7 that F's evidence did not finish until after the lunch
8 adjournment so that a decision could be made about what
9 should be put in evidence about those differences. Do
10 you have any recollection of that process?
11 A. None, sir.
12 Q. I want now, if I may, to come to a different topic.
13 Could we have CO1.267. Could we highlight the first
14 page. This is a memorandum of Colonel Tugwell's about
15 a proposed BBC 24 Hours programme, which was
16 subsequently broadcast, about the Widgery Tribunal. It
17 records:
18 "Colins, Overbury and Wallace met David Mills last
19 evening and these are the BBC proposals".
20 You recollect, as I understand it, meeting a man
21 called Mills from the BBC and discussing the 24 Hours
22 programme; is that right?
23 A. Yes, sir.
24 Q. That was the evening upon which Major INQ1872 was shot
25 whilst accompanying a patrol in the Bogside?
1 A. Yes, sir.
2 Q. Subsequently -- may we have on the screen B1333.057 --
3 Mills wrote a letter to Colonel Tugwell, thanking him
4 for co-operation over the last month during the making
5 of the film on the Widgery Tribunal.
6 Can we come to the next page, 058. That shows it is
7 a letter from Mills, and it says in the last sentence:
8 "I would be grateful if you could pass on my thanks
9 for all their help to Colin Wallace and Colin Edelbury,
10 which is plainly a mistake for you.
11 A. Yes, sir.
12 Q. If we go back to the previous page, may we highlight the
13 last three paragraphs. He says in the last one but two
14 that, having spent some time in the Bogside:
15 "I am fairly sure that the IRA were not there in
16 force that afternoon."
17 He then goes on in the next paragraph, to say:
18 "You are quite right about [what is said to be
19 O'Donhehey, but is I think plainly a reference to Gerard
20 Donaghy] O'Donhehey, he was seen with a nailbomb earlier
21 in the afternoon -- again I must admit I am doubtful
22 about Lord Widgery's conclusion. I am sure he was
23 efficiently searched by IRA sympathisers before he left
24 the Bogside to ensure there were no incriminating
25 objects on him."
1 Then he deals with the existence of a car load of
2 Officials in Glenfada Park. Mr Mills has given evidence
3 to this Tribunal, in the course of which, in essence, he
4 said that he thought from the discussions he had had
5 with you and Mr Wallace, and in particular the fact that
6 neither of you said in terms that the bombs had not been
7 planted, and from your general body language, that the
8 two of you tacitly accepted that bombs had been planted
9 on Gerard Donaghy; is that something that you tacitly
10 accepted?
11 A. No, sir.
12 Q. He also said that he thought that you had been telling
13 him, almost as justification of the planting of
14 nailbombs on Donaghy, that Donaghy had been seen with
15 a nailbomb earlier in the afternoon. Did you say that
16 to him?
17 A. No, sir.
18 Q. Did you have information to that effect?
19 A. No, sir.
20 Q. He also said that in this letter he was, as I understand
21 it, confirming to Colonel Tugwell information that he
22 had in fact obtained from the two of you, to the effect
23 that Donaghy had been seen with a nailbomb earlier in
24 the afternoon, but was not revealing you to be the
25 source in order to keep in with Colonel Tugwell.
1 If you had had information that Donaghy had been
2 seen with a nailbomb earlier in the afternoon, is there
3 any reason why either you or Colin Wallace should not
4 have given this information to Colonel Tugwell?
5 A. I am sorry, could you repeat that question? I did not
6 follow it.
7 Q. If you had evidence, in any shape or form -- written,
8 gossip, photographs, whatever -- that Donaghy, the man
9 who had at some stage four nailbombs on him, had been
10 seen earlier in the afternoon of Bloody Sunday with
11 a nailbomb, if you had that information, is there any
12 reason why you should not have revealed that to
13 Colonel Tugwell?
14 A. None at all.
15 Q. Sir, I am about to come to another topic.
16 LORD SAVILLE: We will take a further five minutes at this
17 stage and then go on until about 12.10.
18 (11.40 a.m)
19 (A short break)
20 (11.45 a.m)
21 MR CLARKE: Colonel Overbury, you told us before the break
22 that you thought that, when you took the statement on
23 19th February, you had not learnt that Soldier F's rifle
24 had fired the bullet that ended in Michael Kelly's body.
25 There is some further indication in the papers that
1 you may well be right on this. Could we have on the
2 screen D610.18. This is a note of a meeting at the
3 forensic investigation department at Newtownbreda on
4 14th February 1972, at which a number of experts were
5 present.
6 If we go to D610.20, and highlight the top two
7 paragraphs, the note records that a number of Army
8 rifles had been submitted. It goes on to say:
9 "22 of these rifles have already been handed into
10 the Forensic Department by the Army, and there were nine
11 more to come. No attempts at matching had yet been
12 made, even on the 22 which had been fired.
13 "Mr Martin explained that if you do not get a match
14 it does not mean that the bullet had not come from one
15 of those rifles. However if you do get a match it does
16 mean that it does definitely come from that weapon.
17 These tests will be done when all the rifles are in."
18 If we go to D627, this is a report by
19 Professor Simpson. If we look at D628, the next page,
20 he says in paragraph 8:
21 "The two bullets recovered are of the same
22 calibre -- and can be related to a given weapon by
23 laboratory test. No other missile appears to have been
24 involved."
25 This is 17th February, and tests have not yet been
1 done.
2 If we then have a look at D610.7, this is part of
3 Dr Martin's statement to this Tribunal. He says in
4 paragraph 26, how he went through what he describes as:
5 "... the time consuming process of comparing each of
6 the individual test fires with the bullets or the bullet
7 fragments extracted from the bodies."
8 He says in the last sentence:
9 "It is possible that I spent most of my time doing
10 the comparison process during the Widgery Inquiry as
11 opposed to any of the other forensic work."
12 Lastly at D47, we have the typed-up version of the
13 manuscript report that we looked at before the break,
14 dated the next day, 29th February 1972. This does
15 relate to Michael Kelly, as appears from the title, and
16 it confirms that what he said is:
17 "I have compared the bullet from the deceased with
18 test bullets from 29 self-loading rifles".
19 And he is satisfied the bullet was fired in the
20 rifle of a particular number, which was Soldier F's
21 rifle.
22 Can I come, please, to a completely different
23 subject. Could we have on the screen CO1.66. This is
24 part of your report as to the workings of the Tribunal.
25 Could we highlight paragraph 21. You say there in that
1 report:
2 "Well over 1,000 copies of photographs were produced
3 on demand for the use of the Tribunal and Counsel for
4 the Army."
5 We know that the Widgery Tribunal had what is known
6 as the EP series of photographs, which now occupy --
7 although they may not have been in that form at the
8 time -- two lever arch files, and we have obtained those
9 photographs from the Public Record Office.
10 The only Army photographs in that series are the
11 aerial photographs we looked at a little earlier, EP21.
12 When you described, in paragraph 21 of your report, the
13 production of over 1,000 copies of photographs, did that
14 mean over 1,000 copies of Army photographs?
15 A. I do not know, sir. When I went back to make this
16 report, I put in all the statistical information that
17 I could for the information, and I would have verified
18 all that information from sources within the
19 headquarters. And I cannot remember from whom I got
20 that information, and I am afraid I cannot remember
21 whether these were different photographs, or they were
22 1,000 copies of the same photographs, or where those
23 photographs have come from.
24 I know I saw many photographs during the course of
25 the run-up to the hearings, and there were a lot of
1 photographs at the hearings, and I believe that the PR
2 people had a responsibility to go out and get whatever
3 they could.
4 But I am afraid I have tried very hard and looked at
5 all the documents that I can about these references, and
6 I really cannot say what that rather obscure sentence --
7 which, I regret, is obscure -- I cannot tell you why --
8 the truth of what lies behind that statement.
9 Q. You cannot tell us now whether it is 1,000 separate
10 images distributed in however many copies, or 1,000
11 copies of what may be a considerably lesser number of
12 images?
13 A. No, sir.
14 LORD SAVILLE: Do you know what "produced on demand" meant.
15 A. No, sir, I do not, except that of course I had had notes
16 from Mr Hall on several occasions which referred to
17 photographs and the need to produce them.
18 MR CLARKE: If we could have on the screen CO1.274. This is
19 a note of 1st March 1972 from Mr Hall, whose signature
20 appears at the bottom. It is addressed to you, and item
21 4 says:
22 "What photographs did shooters see in order to
23 identify bodies? Please supply copies today (including
24 copies to Mr Napier).
25 "Please supply copies (7 of each) of any other
1 photographs Army may wish to put in evidence. It is
2 intended to give copies to Mr Napier".
3 You plainly were being asked to supply copies of
4 anything you wanted to rely on?
5 A. Yes.
6 Q. Our problem in relation to photographs is this: we know,
7 as I say, that the EP series were before the Tribunal:
8 they are referred to in evidence, they are referred to
9 in the report, and everybody seems to have had a copy of
10 them -- including Mr Napier, who was then the solicitor
11 for the relatives.
12 But there is some evidence, for instance from
13 Mr Wallace, of the existence of a large number of Army
14 photographs, possibly in contact strip as opposed to
15 print form; and, so far as we can tell from the
16 evidence, with the exception of the aerial photographs
17 no Army photograph reached the Tribunal, because all the
18 people from the Tribunal team who have given evidence do
19 not recollect a great batch of photographs of that type,
20 nor were they circulated to the interested parties.
21 We are therefore interested in discovering, (a)
22 whether there were a large amount of Army photographs
23 that did not reach the Tribunal and, if there were, what
24 they showed. Can you help us on that at all?
25 A. No, sir, I am afraid I cannot. I did not actually have
1 the physical control or possession of documents or
2 photographs during the proceedings, except on occasions
3 when I had to read anything or look at anything. I had
4 no facilities for maintaining custody of anything. Most
5 of that was held, the secure stuff, by the DAPM, and so
6 I really cannot go any further than this, except that
7 what Mr Hall wanted, Mr Hall certainly got, as far as
8 I knew.
9 Q. If we go to paragraph 61 at CO1.56, at paragraph 69 it
10 says:
11 "I saw a large amount of the Army photographs.
12 I cannot remember the position or locations from where
13 the photographs were taken or what they showed."
14 You say in the last two sentences:
15 "There were certainly pictures of soldiers, and
16 there were some taken from the air and from the ground.
17 Other than that I cannot be more specific."
18 When you say that you saw a large amount of Army
19 photographs, you do mean, do you, that you have
20 a recollection of seeing photographs that were
21 undoubtedly Army photographs?
22 A. At the time I made that statement I must have had that
23 view. It is not something that I had realised there was
24 going to be any great significance about it, and I can
25 only assume that what I said there, I meant to say it.
1 So ...
2 Q. One possibility -- there are others -- is that the
3 Widgery Tribunal was given by the Army the aerial
4 photographs that we know it was given, and that there
5 was also a series of photographs, largely showing the
6 progress of the march or rioting, which was not given to
7 the Tribunal because it did not carry matters any
8 further forward; do you have any recollection of that?
9 A. No, sir.
10 Q. The penultimate matter I wanted to ask you about is
11 this: could we have on the screen B1316. This is
12 a statement made to the Widgery Tribunal by
13 Colonel Tugwell -- Brigadier Tugwell as he now is,
14 Colonel Tugwell as he then was.
15 We know he went on the radio in the early hours of
16 Monday, 31st January and was interviewed. In the course
17 of the interview he said that four of the deceased were
18 on the wanted list. He has told the Tribunal that you
19 later asked him if he could substantiate that and,
20 somewhat to your dismay, he said that he could not. Do
21 you recall that happening?
22 A. I do not specifically recall it happening because my
23 memory is relying upon what he has stated. But I would
24 absolutely agree, I would have been very upset.
25 Q. He said that, in those circumstances, what had been said
1 had to be corrected, and this statement was drawn up by
2 you. In the course of the statement, he says this:
3 "A transcript of the portion of the interview
4 broadcast is attached. In the penultimate answer
5 I referred to four men being on the wanted list. This
6 was an item of information supplied by the intelligence
7 staff. This was the only occasion on which I (or as far
8 as I know anyone else) in the Army have made any public
9 statement that any of the dead men were on the wanted
10 list.
11 "I have today been given a list of the four names
12 referred to. I now understand that the list from which
13 these names were extracted is made up of individuals
14 about whom there is a security trace. My lay
15 interpretation of this is that there is some record in
16 relation to the individual suggesting that he has been
17 involved in rioting or some other subversive conduct."
18 He says in the next paragraph:
19 "I was not told names at the time, but I now know
20 that they were: Donaghy, Doherty, Duddy and Gilmore."
21 His evidence was that this information would be
22 information that he learnt from you. Do you remember
23 finding a list, or being given a list of the four names
24 that he had in fact been referring to in the radio
25 interview?
1 A. No, sir, I have no specific recollection of this, but
2 obviously -- and I have no recollection actually of
3 drafting the document. But I accept, if Brigadier
4 Tugwell says that I did, that I must have done. And
5 what I would have done, because I was not around on the
6 30th -- and I do not have knowledge of operational
7 matters, but I would have sought the source which could
8 provide that information.
9 Q. Do you know what that source would have been?
10 A. No, I am afraid I do not recollect that.
11 Q. There is one last matter I would like to ask you. Could
12 we have on the screen CO1.275. Can we highlight the
13 top. This is a document described as "Notes on
14 Memorandum of Information Required," and it appears to
15 be an answer, as its title implies, given to somebody
16 seeking further information; it may be the Treasury
17 Solicitor, it may be someone else.
18 If we look at paragraph 7, it contains this
19 reference:
20 "Oral orders with regard to opening or ceasing fire
21 are believed to have been given only twice during this
22 operation:
23 "(a) The NCO in charge of the party concerned
24 ordered two soldiers to shoot the nailbomber shot in
25 William Street:
1 "(b) The warrant officer with a party of soldiers in
2 Rossville Street ordered the soldier who was firing 17
3 rounds at a window in Block 1, Rossville Flats, to hold
4 his fire."
5 Do you have any recollection of that item 7(b)?
6 A. No, sir.
7 Q. Did you want to add something?
8 A. It was just that I have seen this document fairly
9 recently and I could not remember seeing it before.
10 Q. Can you even identify whose document it is?
11 A. Well, there is a covering note that goes with it which
12 suggests that it is information from LAS2 in London,
13 that it was information which I had been asked to
14 provide.
15 Again, any information of this nature I would have
16 no personal knowledge, so I would have simply gone and
17 tried to find someone to get that information for me to
18 make a note.
19 Q. I am reminded that we should have copied the document to
20 which this is attached, which sends to the Treasury
21 Solicitor a copy of notes prepared by Lieutenant Colonel
22 Overbury.
23 Thank you. Thank you very much. Those are my
24 questions.
25 LORD SAVILLE: Mr Harvey, we have reached 12.05. We will
1 stop for lunch and start again, please, at 12.45.
2 (12.05 pm)
3 (The Short Adjournment)
4 (12.45 pm)
5 Questioned by MR GLASGOW
6 MR GLASGOW: Colonel Overbury, my name is Glasgow,
7 I represent many of the individual soldiers and I should
8 tell you among them, V and F and A, who are the three
9 that you refer to in your statement which I would like
10 you to give a little more help to the Tribunal about.
11 Before we go any further, could I just invite your
12 attention to the first statement you made, sir. We have
13 it as CO1.1. You have the hard copy there. This is,
14 I think, the statement you said has been volunteered,
15 having, I think, written it yourself?
16 A. Yes, sir.
17 Q. It may help you to go to CO1.3. You will see it is
18 dated 23rd April 1999, some few years before you saw
19 Eversheds?
20 A. Yes, sir.
21 Q. It is of course much shorter and you did not have access
22 to all the documents that Eversheds showed to you, but
23 it was your own attempt to set out the role you had
24 played in the preparation of paperwork for the Inquiry?
25 A. Yes, sir.
1 Q. While we have it there, Colonel, could we look at the
2 second page, please, the top two paragraphs, 6 and 7.
3 You there were setting out the procedure that had been
4 adopted before you came to Northern Ireland and took
5 over in the way in which you told the Tribunal you did
6 this morning?
7 A. Yes.
8 Q. In paragraph 7 you refer to your understanding that the
9 statements would have been taken in accordance with the
10 standard operational procedures. That is a military
11 term of art, is it not, they refer to as SOPs?
12 A. Yes, sir.
13 Q. That is a sort of protocol that is drawn up for
14 procedures for doing various different tasks in the
15 Army?
16 A. Normally, sir, yes.
17 Q. I may have got this wrong and please do not take it from
18 me if I have, am I right in thinking that if we look at
19 Warrant Officer Wood's statement, who helpfully is
20 a name in the public domain -- do you recall Warrant
21 Officer Wood?
22 A. Yes, sir.
23 Q. He was the senior RMP Special Investigation Branch
24 officer who had investigated matters before you had got
25 to Northern Ireland, I think?
1 A. Yes.
2 Q. We find his statement, Colonel Overbury, at CW1.1, to
3 remind you and others of who we are talking about. That
4 will come up on the screen. We have the right man?
5 A. Yes, sir.
6 Q. That is the man. I am making no criticism of him
7 either, but I want to see what situation you inherited
8 when you got to Northern Ireland. He exhibits to his
9 statement, Colonel, at CW1.46, and this is called:
10 "A brief for investigators engaged in inquiries into
11 matters in Northern Ireland."
12 Am I right in thinking this was an SOP drawn up
13 specifically for use in Northern Ireland?
14 A. I am not sure whether it was an SOP. It was certainly
15 a brief or, as it says, a brief for investigators. It
16 does not look -- it is not written in the form of
17 a standing order --
18 Q. Could we go to the document that appears to be attached
19 to it, which is called an aide memoire, it is at CW1.48,
20 which is the next document the warrant officer refers
21 to. That is called an aide memoire, which sets out the
22 approach to the unit that the investigating officer
23 should take and then the approach to the individual at
24 the bottom of the page. Does that look more like it?
25 A. Well, this is the document to which I referred in my
1 evidence this morning.
2 Q. I wanted to make sure I had identified the right thing?
3 MR TOOHEY: Could I just interrupt you for a moment to
4 understand something: Colonel Overbury, was there an
5 organisational connection between the Royal Military
6 Police and the Special Investigations Branch.
7 A. Yes, sir. The Special Investigation Branch is part of
8 the Royal Military Police. It is the part of the Royal
9 Military Police that are trained as investigators, it
10 is, if you like, the detective branch of the police
11 force.
12 MR TOOHEY: When you speak, as you do in your statement
13 following Bloody Sunday, of the taking of statements by
14 the Royal Military Police, is that the same as saying
15 statements taken by the Special Investigation Branch; or
16 is that something different?
17 A. Well, it could have been either, but in principle that
18 would be a Royal Military Police function. The Special
19 Investigation Branch are only brought in normally to
20 investigate potential offences against -- by soldiers.
21 But in this particular instance, in order that there
22 were enormous demands upon the Royal Military Police to
23 produce resources for the purpose of this investigation,
24 the SIB were very much involved.
25 MR GLASGOW: In very general terms, would it be right to
1 say, I think it is Warrant Officer Wood himself, who
2 describes the SIB as effectively being the CID of the
3 Royal Military Police.
4 A. That is a good description, yes.
5 Q. I think for the purposes of Widgery most of the RMP
6 statements were referred to as RMP statements?
7 A. Yes, sir.
8 Q. Whether they were taken by SIB officers or RMPs?
9 A. I think that is correct, sir, yes.
10 Q. As long as I have the right document, could I please
11 have a look at it. Under (b) there is the reminder that
12 it is not a normal SIB investigation as such, you are
13 there as trained statement-takers and
14 evidence-gatherers?
15 A. Yes.
16 Q. The reminder that the officers were being given was,
17 that although they were SIB officers, they were not
18 supposed to approach the Inquiry as if they were
19 investigating crimes, but simply as evidence-gatherers
20 and because they had experience in taking statements?
21 A. Yes, sir.
22 LORD SAVILLE: Do you remember seeing these documents before
23 you went to Northern Ireland for Bloody Sunday?
24 A. No, sir, I did not see these documents. The first time
25 I saw this document was really quite recently.
1 LORD SAVILLE: I am wondering how far we can get assistance
2 from this witness on this document.
3 MR GLASGOW: As far as you are happy to take it, sir. There
4 are some matters, all I wanted to know was whether or
5 not this was the document he was referring to in his own
6 statement which we looked at first thing.
7 Am I right about that, it is the document you were
8 referring to?
9 A. Yes.
10 Q. It is.
11 LORD SAVILLE: But you do not remember seeing it at the
12 time, you have seen it reasonably recently; is that
13 right?
14 A. Yes, it was part of the papers that I was given by the
15 Treasury Solicitor.
16 MR GLASGOW: Did you know, at the time when you went to
17 Northern Ireland, Colonel, of the procedures that the
18 Military Police and the SIB were supposed to be
19 following?
20 A. Yes.
21 Q. You did?
22 A. Yes, sir, generally speaking. Not -- I did not know the
23 proceedings in Northern Ireland, but I knew the
24 proceedings from previous experience, what has to happen
25 when troops are used in aid of the civil power.
1 Q. May I ask one further matter on this and if it does not
2 help, of course I will leave it. Having on that page
3 set out the instructions for the officer in his approach
4 to an individual, he is told to make it clear to the
5 soldier that you are only there to find out what has
6 happened, assessment of criminal responsibility is not
7 your task.
8 If we go over the page, were these matters within
9 your knowledge, in respect of statements: they were told
10 that evidence is required, firstly to set the scene and
11 the way in which that should be done and going on to (b)
12 to build up to the shooting and (c), to describe the
13 shooting.
14 Were those the steps that you were expecting people
15 to follow, whether or not you had seen this document?
16 A. I mean, looking at the document that seems to be
17 a correct approach, yes.
18 Q. A correct approach?
19 A. Yes.
20 Q. Would I be right in thinking, sir, that that envisages
21 a fairly full interview process, carefully building up
22 to whatever it is that you want to ask about?
23 A. Yes, sir.
24 Q. That is what was envisaged?
25 LORD SAVILLE: I do not think Colonel Overbury can actually
1 answer these questions, Mr Glasgow. He tells us he did
2 not see this document and I think this was your first
3 trip to Northern Ireland, was it not, Colonel Overbury?
4 A. Yes.
5 LORD SAVILLE: This is perhaps rather more comment at the
6 end of the day than using Colonel Overbury's time asking
7 him questions relating to Bloody Sunday, Mr Glasgow.
8 MR GLASGOW: I am very sorry. I thought it might help
9 because, when he was questioned by Mr Clarke, there
10 appeared to be no knowledge of the SOP he had referred
11 to; and, if this is the document, I thought it might
12 help to look at it. I will certainly not take it any
13 further if it does not.
14 LORD SAVILLE: All I was inquiring is whether any help can
15 be given to us by asking Colonel Overbury questions
16 about it.
17 MR GLASGOW: When you arrived in Northern Ireland,
18 Colonel Overbury, your understanding was that all the
19 initial statements had already been taken by the SIB or
20 RMPs?
21 A. Yes, sir.
22 Q. Did you then, having been given the job of
23 cross-checking them, did you have the job of sitting
24 down and reading through and seeing where the problems
25 were, if any?
1 A. No, that was for the SIB.
2 Q. You were tasked yourself for the job of checking the
3 statements, I think you have said?
4 A. I would undoubtedly have read all the statements, but if
5 there were questions of further statements to be taken,
6 it was the SIB that would initiate the fact, at what
7 level they wanted that secondary statement to be taken.
8 Q. Would you only see a soldier if asked to by the SIB or
9 if you decided yourself on reading the statements there
10 was something you wanted to follow up?
11 A. As there were so few of these statements and as they all
12 occurred within a very short period when we were doing
13 the cross-checking process, my recollection is that it
14 was -- I was asked by the SIB to take these. I think in
15 one case the soldier himself asked.
16 Q. It fell to you then to clarify difficulties if they had
17 already occurred to somebody else, either to the soldier
18 himself or to the SIB; is that the position?
19 A. Yes, sir.
20 Q. And in that event you would have read the statements
21 that had been taken, the one or more than one if there
22 had been more than one, carefully before you saw the
23 soldier yourself?
24 A. Sir, I think I, at one time or another, had read all the
25 statements that the soldiers made that were submitted to
1 the Tribunal.
2 Q. Did you yourself at that time have any concerns about
3 the circumstances in which the statements appeared to
4 have been taken?
5 A. That was not my function --
6 Q. No, I did not suggest it was?
7 A. -- in this particular case. The problem here is that
8 the assessment as to whether or not the actions of the
9 soldiers, as recounted in their statements, was
10 compatible with the Yellow Card was a matter which was
11 going to be decided by the Tribunal. We did not --
12 I personally and as far as I know my colleagues in the
13 Tribunal team, never had any statement from the other
14 side, so we were only looking at the matter from one
15 side and so it would not be possible for me to make
16 a judgment as to what the position was.
17 I do not believe that I ever saw a statement on
18 which one would have had to advise the individual that
19 he needed independent legal advice.
20 Q. Perhaps the shortest way of taking it is to look at your
21 report after the job was over and the matters that had
22 occurred to you with the benefit of hindsight. Could we
23 do that and see if it refreshes your mind. The only
24 part of your report we can go directly to I think is
25 CO1.8. You have helped my learned friend Mr Clarke
1 already with the document as a whole. I think in part
2 B, as we see on this page, you dealt with the points
3 that arise from the case. This was you thinking back on
4 perhaps what might have been done better or what lessons
5 were to be learnt?
6 A. Yes, sir.
7 Q. Could we look at just the three in summary first.
8 Paragraph 29 you were reporting the fact that:
9 "Individual soldiers were required to undergo
10 interview and to make statements so often that their
11 memory and/or morale was affected."
12 Is that something that had occurred to you during
13 the course of your investigation?
14 A. Yes, sir.
15 Q. You acknowledged in the last part of paragraph 29:
16 "There is considerable advantage, it is thought, in
17 having soldiers interviewed collectively after their
18 first statements."
19 A. Yes, I did make that statement.
20 Q. What was it that had provoked that thought?
21 A. Well, at the time I considered that if it were legally
22 possible to have some kind of discussion so that
23 individuals could refresh each other's memory, that
24 might be an advantage. However, I have to say that
25 I was informed in no uncertain terms that that would not
1 be possible.
2 Q. I take it no further then. Paragraph 30, taking that
3 very shortly, you were expressing the view that
4 photographs, where possible, should be used in
5 preference to maps or plans?
6 A. I think in addition, sir, not as an alternative.
7 Q. Yes. Photographs were valuable, we could agree on that?
8 A. Yes, sir.
9 Q. Had it occurred to you, on looking at any of the
10 statements that had particularly concerned you, that
11 plans could be potentially misleading?
12 A. For the purposes of identifying an individual's activity
13 in a congested situation like that, my opinion was that
14 photographs would be better.
15 Q. You did yourself have some experience, I think, of
16 interviewing soldiers who marked photographs in
17 a different way than plans appeared to have been marked?
18 A. I am not sure to what you are referring.
19 Q. I will take you to an example, if you do not recall it.
20 While we have the document here, paragraph 31. Could
21 I ask you about the first sentence:
22 "Consideration must always be given to the standing
23 of the individual soldier at an early stage and legal
24 advice should be obtained if there is any possibility
25 that his evidence might incriminate him."
1 Was that written in the light of the experience you
2 had had with V's statement; or was it a more general
3 concern that you were expressing?
4 A. I think that was focused on V.
5 Q. Does that also apply to the end of this paragraph, where
6 you are expressing concern, if that is right, that risk:
7 "... should be avoided, but this might be overcome
8 if agreement could be reached, ensuring that Counsel for
9 the Army also represented the individual soldier," or
10 was that a different point?
11 A. It was not possible for an Army legal service officer to
12 act for an individual soldier and I floated the idea
13 that, in view of the problems that might arise, that
14 that should be considered, but that again was firmly
15 rejected.
16 Q. You were conscious, were you, of the fact, Colonel, that
17 the soldiers as individuals had not been represented
18 legally at any part of the investigation?
19 A. Yes, sir.
20 Q. Could I ask you, then, about the three specific soldiers
21 with whom I am concerned and who are touched on in your
22 evidence. First of all, A. Soldier A, do you remember
23 anything about Soldier A or would you like me to take
24 you to his statement?
25 A. I have read his statement since, but I --
1 Q. I will take it as shortly as I can. One of the two
2 soldiers who fired from the warehouse, and probably
3 almost certainly shot Donaghy and Johnston, or do the
4 names not --
5 A. I was not aware.
6 Q. Shot two civilians?
7 A. The difficulty of that situation appears to be that A
8 and B had shot the same person.
9 Q. Is that something that occurred to you at an early
10 stage, that two soldiers appeared to be giving an
11 account of shooting the same man?
12 A. Yes, I think so, I really cannot recollect.
13 Q. Could we look, then, firstly at A's statement. This is
14 an RMP, but taken by the SIB. We have it at B1. That
15 is, of course, the standard form RMP statement?
16 A. Yes, it is.
17 Q. To remind ourselves, Colonel, this would be the typed-up
18 version?
19 A. Yes.
20 Q. For which we should find a manuscript version in every
21 case?
22 A. Yes.
23 Q. Did you yourself read the typed-up version, do you
24 remember, or were the manuscript ones brought to you
25 when you arrived?
1 A. I am not sure, sir. I would have thought that I would
2 have got the typescript copy, because the original would
3 have been kept by the DAPM and then, before it was
4 handed over, to the Tribunal.
5 Q. Looking at that statement, does that refresh your memory
6 at all of the account that you saw when you first looked
7 at A and B's position of the account that A had given,
8 or is that shrouded in the mists of time now?
9 A. I am afraid I really cannot help you with that, sir.
10 Q. Did it occur to you when you were investigating the
11 matter and preparing it for the Widgery Tribunal, that
12 there were some inconsistencies between the accounts
13 that A and B were giving?
14 A. Yes, sir. I think I am right in saying that. Very few
15 of the statements did actually tally 100 per cent,
16 I mean, there were differences which existed in all
17 cases. Most of them, in my view, would have been the
18 kind of error you might expect.
19 Q. When you say, "You might expect," could I put the
20 question back to you. You had 15 years' experience?
21 A. I mean, I might have expected.
22 Q. I did not mean to be rude.
23 A. No, of course.
24 Q. Perhaps if you were going to express a view, we should
25 know from what position you express it. You had
1 15 years, principally as a prosecutor before court's
2 martial at that stage?
3 A. Yes, sir.
4 Q. Did it surprise you, in the words that you used, that
5 young soldiers operating under stress gave statements
6 that did not always precisely correlate?
7 A. Not in the least sir, no.
8 Q. Did you notice anything about the circumstances in which
9 the time at which and the circumstances in which these
10 soldiers' statements had been taken that caused you
11 concern?
12 A. Not that I can recall, sir, no.
13 Q. If you need to look at anything I will give the
14 references, because it saves a lot of time, but if you
15 need to look at them, please tell me: did you know, for
16 example, that A and B's statements had been taken in
17 a period, apparently, of 10 minutes, at 2 o'clock in the
18 morning?
19 A. Yes, sir.
20 Q. Did it, Colonel, cause you any concern that, in an
21 investigation of this kind -- and I make absolutely
22 plain I have made no criticism and I am making no
23 criticism of the warrant officer concerned -- but that
24 these statements were being taken at, let me say
25 generally, in the early hours of the morning, when the
1 soldiers had been on duty since the early hours of the
2 previous morning, had had a pretty stressful day, and in
3 any view had been involved in shooting and violence and
4 their statements were being taken in the course of, in
5 some cases 10 minutes and some cases half an hour, one
6 after another?
7 A. No, sir. I think that was one of the reasons why
8 cross-checking was going to be important.
9 Q. Did it occur to you, Colonel, that the accounts we have
10 on this page, for example of Soldier A, if we look at
11 what he says and what he was saying in the statement
12 that you were given, he was apparently giving an account
13 with precise locations, street names, points of the
14 compass and directions, in respect of an incident which
15 occurred in a city where he had never been before, in
16 the circumstances described in the statement?
17 A. I am sorry, sir, this is illegible.
18 Q. I am very sorry, can we then enlarge the middle section.
19 Again, I repeat I am not making a criticism or a snide
20 comment at anyone, but the fact is: the investigating
21 officer was getting down a lot of information, which,
22 I suggest, could not conceivably have come from the
23 soldier, this is the investigating officer doing his
24 best to make sense of the account that he has given?
25 A. I do not think I can really comment on that, sir.
1 Q. It did not strike you at the time?
2 A. Not that I recall.
3 Q. The other matter I would like you -- because this has
4 already been a matter of published criticism against
5 both these soldiers. The reason I ask you, these
6 statements, there has already been expressed
7 a conclusion about the discrepancies in their
8 statements.
9 Did you see the maps that they had both marked for
10 the SIB as part of the statement-taking process?
11 A. I do not recall, sir, but I would I imagine.
12 Q. Can we look at one example; A's we find at B3. I think
13 we can properly say that B's is almost identical. Those
14 were, could we just enlarge the section in the middle,
15 please. To help you with this, I think the RMP's, the
16 investigating officers had provided the soldiers with
17 plans, so Mr Wood tells us in his statement, and they
18 had marked the position where they had been and the
19 position at anybody whom they had shot had been?
20 A. Yes.
21 Q. Do you remember that?
22 A. I do not specifically remember it, but it must have
23 happened.
24 Q. What I would like to do if I can, because again I hope,
25 in fairness to you, because I certainly would
1 acknowledge on their behalf that they believed you were
2 doing your best to make sense of what they were trying
3 to say. Could we put, please, B3 on one side of the
4 page and B20 on the other. Again, I hope I am not
5 taking it too shortly, Colonel, you have explained that
6 when you came along you used photographs?
7 A. Yes.
8 Q. You said in your retrospective comment you thought
9 certainly photographs would be preferable?
10 A. That would seem to be the case from this.
11 Q. I do not know whether you recall doing it, but if we
12 look, first of all, at the left-hand side and could we,
13 please, enlarge the central area, that area, please.
14 To deal with it very shortly, if I may: you see the
15 comment that was made and the conclusion that was
16 expressed and opened by Counsel to the Inquiry was that,
17 first of all, on the plan Soldier A had marked the
18 position from which he had fired, by this arrow that
19 I have just marked there? (Indicating).
20 A. Yes.
21 Q. In fact, he was to tell you -- I think he has
22 consistently given an account of this -- that he was in
23 the building; was that your recollection?
24 A. Not without seeing the statement, sir.
25 Q. If you look at your own photograph, we see on the
1 photograph --
2 A. That is the middle window, yes.
3 Q. It goes to the middle window. Again, if I am taking you
4 into matters you do not recall, I will not, because it
5 is not fair. Do you now recall that the general account
6 was that the firing had been from the building?
7 A. No, I do not, sir.
8 Q. Very well. But the comment that has been made, you see,
9 because the arrow I have marked on the left-hand side
10 stopped in the original approximately half a millimetre
11 short of the building, that was a discrepancy because it
12 meant the soldier was saying one thing on his plan and
13 another to you on the photograph. Did it occur to you
14 at the time that there was a discrepancy in the account
15 this soldier was giving because the line that had been
16 drawn on the RMP's plan, stopped, I would assess,
17 approximately a millimetre or a millimetre short of the
18 building?
19 A. No, sir, I think I would have regarded that as
20 a clarification.
21 Q. Do you have a conscious memory of that at the time or
22 are you doing your best to help in retrospect?
23 A. I am only doing my best to help you, sir.
24 Q. Can we look at the plan on the left-hand side. Do you
25 now remember that this was the plan that was used?
1 A. No, sir.
2 Q. You do not. Did it ever come to your attention in your
3 investigations, Colonel, that the plans which had been
4 shown to the soldiers on the night were, wholly
5 innocently, misleading, in that they showed a building
6 to be present, where in fact there was no building; does
7 that ring a bell?
8 A. I have no knowledge of that, sir.
9 Q. I hope I can help you. If I can mark it on the plan,
10 the building that is shown as the old laundry building
11 there, it is not very well marked, that we know, and has
12 of course very fairly already been pointed out by
13 Counsel to the Tribunal, that building had already gone,
14 that had been fire-bombed away by the time --
15 A. Yes.
16 Q. So the open space into which the soldiers were shooting
17 was very considerably larger, in fact approximately
18 double the size than that that was indicated on the
19 plan?
20 A. That is evident, sir, yes.
21 Q. Was it evident to you at the time?
22 A. I cannot recall.
23 Q. Can you remember looking at the photograph on the right,
24 sir, either in the case of A, B or anybody else; did you
25 try to mark up the photographs yourself?
1 A. No, sir.
2 Q. By drawing the line, or did you ask them to put the line
3 where they thought it was?
4 A. I think the soldiers would have had to have done that,
5 because I would not have done it myself.
6 Q. Do you have a recollection of that?
7 A. No, sir, but I know that, as a legal officer, I would
8 not do that.
9 Q. But you cannot help us as to whether that was done on
10 the plans?
11 A. No.
12 Q. Because you were not involved in that?
13 A. No, sir.
14 Q. I have got that right, the RMPs used the plans and you
15 used the photographs?
16 A. I imagine so, yes.
17 Q. In fact, again helping you with the timing if we can:
18 does the photograph on the right-hand side look like the
19 sort of photograph you would have taken?
20 A. Yes, sir.
21 Q. Because the other photographs that were taken, as
22 Lord Saville helpfully pointed out, were obviously taken
23 at a different time of day from this, because we see
24 that from the shadows. You think your photographs were
25 taken in the late morning?
1 A. My recollection is that I went up in a helicopter in the
2 late morning. I do not know whether the helicopter went
3 up again later.
4 Q. It may not help, I will not press it if it does not: we
5 see on the photograph, that you believe the soldier
6 would have marked for himself, that what we have on the
7 photograph is a tiny little circle. I have stopped the
8 arrow too short to avoid risking confusing it.
9 A. Yes, I see it, sir.
10 Q. Do you think the possibility is that the soldiers marked
11 the circles or the spots and they were joined up by
12 a line? Does that make sense?
13 A. Sir, I really do not know. My recollection was that
14 some of these photographs were marked up by the SIB
15 before I saw them.
16 Q. Without being facetious, they could not have been before
17 they took the photographs?
18 A. No, sir.
19 Q. So they must have been at your of the investigation,
20 rather than the SIB's stage when they were on their own?
21 A. I am sorry, I am confusing you, sir. What I meant was
22 that the photographs were taken I think on 10th
23 February, the ones that I was concerned with, by
24 a photographer who was in the helicopter. When those
25 photographs were developed, where the SIB investigators
1 considered it necessary, I think they showed the
2 photographs to check with all the soldiers.
3 When I had to interview Soldiers A and F, I think
4 that I would have had -- I am not sure about A, but
5 certainly with F, I would have had -- been given the
6 soldiers' statements, the plan and the photograph.
7 Q. If you can help the Tribunal, again the conclusion that
8 was drawn as to the second discrepancy that this soldier
9 is accused of being guilty of is that his arrow on the
10 SIB plan, if I can call it that, stops in the half of
11 the wasteground that is shown, we see there
12 (indicating), whereas on the photograph, on the
13 original, it must be a millimetre and a half or
14 2 millimetres to the left and right, by the corner of
15 the building.
16 Is that something that occurred to you at the time
17 when you were checking these statements and taking
18 clarificatory statements?
19 A. Sir, I would not have regarded that as being of great
20 significance because I am not -- I was not a operational
21 officer. I would not, as a lawyer, have been unduly
22 worried to see that it was a millimetre or two from any
23 place.
24 Q. Did you ever have occasion to make inquiry, either from
25 the soldiers or from the RMPs -- admitting for the
1 moment that RMPs are also soldiers, but you know the
2 distinction I am making -- as to the way the statements
3 had been taken?
4 A. No, sir.
5 Q. Did you ever have any concern about that,
6 Colonel Overbury?
7 A. No, sir.
8 Q. Again without criticism of either side, it is right to
9 say that squaddie's relationships with RMPs, tends to be
10 a not wholly friendly one?
11 A. Nervous, I would say.
12 Q. Soldiers giving statements to RMPs are very wary on the
13 whole?
14 A. That would not surprise me.
15 Q. That would not have surprised you?
16 A. No.
17 Q. So SIB, even more so?
18 A. Oh, certainly.
19 Q. Certainly, and that is from your experience over
20 15 years?
21 A. I do not actually have experience of soldiers telling me
22 things like that, of course, but understanding the way
23 things went, soldiers had every reason to be respectful,
24 as far as the Military Police and the SIB were
25 concerned.
1 Q. Did you have any understanding or knowledge yourself of
2 the way in which statements were taken, either on this
3 occasion or generally, when investigations were
4 conducted?
5 A. No, sir, I mean, that was the responsibility of the SIB,
6 I did not regard my function as being necessary to
7 cross-examine them as to what they had done.
8 Q. The reason I ask, and I would like your comment for the
9 Tribunal, this particular warrant officer, this senior
10 first class warrant officer, says himself that the
11 statement-taking process consisted of him trying to do
12 his best to write down what the soldier wanted to say,
13 but that the soldier's own contributions had, for the
14 most part, simply been grunts; does that surprise you?
15 A. I did know this warrant officer from previous experience
16 and I would have no reason to dispute anything he said.
17 Q. It may sound very surprising to people who know nothing
18 of the relationships between soldiers and the SIB, but
19 would it surprise you that all that an investigating
20 officer might get in answer to these questions were some
21 pretty monosyllabic noises out of soldiers, either
22 assenting or disagreeing with what was put to them?
23 A. I really cannot respond to that, sir.
24 Q. You had no experience of that before?
25 A. I had no experience of any kind of observing a soldier
1 having statements taken from the RMP or the SIB.
2 Q. You are able to help the Tribunal to this extent, sir,
3 you knew First Officer Wood?
4 A. Who was a most intelligent warrant officer.
5 Q. When he says, as he does, "for the most part the
6 interview was merely grunts," that is likely to be
7 a truthful account from an experienced officer?
8 A. I never had any occasion to disbelieve anything that
9 Mr Wood said.
10 Q. Did it occur to you that it was even possible that the
11 statements which you looked at so carefully and
12 everybody else has been pouring over and criticising
13 30 years later, that the contributions which had been
14 made by the people being investigated to those
15 statements, were, for the most part, simply grunts, in
16 other words they simply agreed or disagreed with what
17 was being put to them; and what was produced is what to
18 all the world appears to be a polished, literary
19 statement. It did not occur to you?
20 A. I am really very sorry, sir, I really cannot help you
21 with that.
22 Q. Very well. Can we look at the position of F, because he
23 too gave you cause for concern. Do you remember, you
24 helped the Tribunal with his evidence this morning?
25 A. Yes.
1 Q. What you knew was that you saw his first statement that
2 had been taken on the night, which we have at B167.025.
3 Can we look at that together, please. Does that bring
4 it back to you? This would have been the form in which
5 you had seen it, sir, before people started to write on
6 it?
7 A. Yes, sir.
8 Q. I think it has already been put to you, but in fact it
9 was a five-page manuscript statement taken at 2.40, 20
10 to 3.00 in the morning?
11 A. Yes, sir.
12 Q. Were you aware of that?
13 A. Oh, yes.
14 Q. Again, a statement taken by a soldier who has been
15 involved in a number of shootings, who has been on duty
16 since, did you understand, about 6.30 the previous
17 morning?
18 A. Yes, sir. I do not know how long he had been on duty,
19 but --
20 Q. Would you have learnt of that later when you took his
21 statement, or any of the soldiers?
22 A. I do not think so, sir. But I would certainly accept
23 that they had been through a traumatic experience.
24 Q. That was the first statement that you saw that required,
25 you thought, some clarification?
1 A. This is the first statement that F made?
2 Q. Yes?
3 A. I did not see him until he had made a number of
4 statements.
5 Q. Could we look, then, at the second, because this may
6 help -- what may be the second. B167.029. Do you
7 remember, again just enlarging the script, a very, very
8 short statement was taken later in the day. Having been
9 questioned at 20 to 3.00 in the morning, he is
10 apparently being questioned, we are told, at 2.10 in the
11 afternoon of the same day. Could we look at that
12 together. He here says:
13 "I am at present engaged on Internal Security duties
14 in Northern Ireland. On 31st January 1972, I was shown
15 a collection of photographs by a corporal in the SIB.
16 I selected two photographs marked Donaghy ... I am
17 reasonably sure that I shot this man in a full-scale
18 riot in the Glenfada flats on 30th January 1972, for
19 being in possession of nailbombs."
20 That is what is written down. Were you aware that
21 an SIB officer had apparently taken a statement from
22 this man, who was either claiming or admitting, if this
23 statement be accurate, that he had shot somebody for
24 possessing nailbombs and that that was the way it had
25 been written down; did that strike you?
1 A. No, sir, I cannot recall that it did. I do not really
2 recall -- I do not recall the interview with the
3 soldier. I have to refresh my memory as best I can from
4 these statements.
5 Q. I appreciate that, sir, and I am not meaning to sound
6 critical of you. I put it this way: surely it occurred
7 to somebody at the time that this was a soldier who was,
8 if what had been written down for him was accurate, in
9 a half, third of a page of statement, he was admitting
10 to having shot somebody for possessing nailbombs; that
11 certainly should have been investigated by somebody or
12 somebody should have noticed it, should they not, if
13 that is what it really said?
14 A. I do not know really how to respond to that --
15 Q. If you have no memory of it, sir, I will not press it.
16 That is the position, is it? Very well.
17 Do you happen to know what would have happened to
18 the manuscript statement, if one existed of this? Do
19 you know whether a manuscript statement was actually
20 made and signed to that effect, to that extraordinary
21 admission?
22 A. All the manuscript statements I was aware of were handed
23 over to the Tribunal. So if that was a statement, the
24 original of which was a manuscript statement, it would
25 have gone to the Tribunal.
1 Q. I will be corrected if I am wrong --
2 A. Let me put it this way: should have.
3 Q. It is very easy for it to get lost in the papers.
4 I think I am right in saying there is not any manuscript
5 version for that and you cannot help me one way or the
6 other as to that, of course?
7 A. No, sir.
8 Q. But you saw him, and perhaps, if only in fairness to
9 you, sir, at B167.035, you eventually saw him and took
10 the statement that you helped the Tribunal with this
11 morning?
12 A. Yes, sir.
13 Q. And can you remember whether or not when taking that
14 statement and trying to clarify the position, you were
15 aware of the fact that it was being suggested, at least
16 on a typed RMP form, that he had admitted shooting
17 somebody for possessing nailbombs?
18 A. I am not sure I am following you, sir.
19 Q. Did you realise, do you think, on looking at the
20 statement that you took, that he had made that
21 surprising admission already: that he had made that
22 admission?
23 A. Is this statement that is up on the screen now the
24 statement that I took from him?
25 Q. Yes, sir. Perhaps it would be more helpful to put the
1 question the other way. Let me try to put the question
2 the other way, because I think it may help and cut the
3 matter short?
4 A. Could I see the end of this statement?
5 Q. It is, I think, two pages on. It is at 167.37. Again,
6 it is not signed, so that your name appears at the foot?
7 A. I did not take that statement. The statement that
8 I took is the one that is now on the screen. The screen
9 that was showed to me before is not a statement that
10 I took. The statement I took from Soldier F is a single
11 page.
12 Q. That is a single page?
13 A. Yes, I did not take anything else from him.
14 Q. Thank you for clarifying it. In that case, can I ask
15 the question again: when you took this statement, do you
16 remember whether or not you were conscious of the fact
17 that he appeared to have made an admission to the
18 Military Police that he had, in their words, shot
19 somebody for possessing nailbombs?
20 A. Could we see the whole of the statement, please?
21 I think the first sentence explains. I only have the
22 last bit on the screen.
23 Q. Does that help?
24 A. Yes, sir, it does, it says:
25 "I have now read my previous statements and looked
1 at maps and photographs," so I must have had all these
2 statements.
3 Q. Do you have any recollection at all now of interviewing
4 a soldier who you were being told had admitted to
5 shooting somebody for possessing nailbombs?
6 A. I do not recall that.
7 Q. You do not recall it. It may not be a possible or fair
8 question and if it is not stop me, or I will be stopped
9 by others: what should have happened when a soldier was
10 recorded as having made an admission to the Military
11 Police of having shot somebody for possessing nailbombs?
12 MR CLARKE: My learned friend invited interruption. I do
13 not want to stop or prevent any of this, but it seems
14 tolerably clear that the statement this witness is being
15 asked about is a statement that post-dates the original
16 statement of Soldier F, which, at B122, makes it plain
17 that the possession of nailbombs he is talking about is
18 that to which he refers on what is on the screen, where
19 he says:
20 "We moved to our position where I saw one of the men
21 light something. I saw it fizzle and spark. I realised
22 it was some form of bomb. He raised his arm as if to
23 throw the bomb. I fired two aimed shots at the man."
24 Et cetera, et cetera.
25 I venture to suggest that when, in a supplementary
1 statement, he talked about shooting somebody for being
2 in possession of a nailbomb, it is most unlikely that he
3 admitted or intended to admit that he was arresting him
4 simply because he had it in his hand, he having said at
5 an early stage that he shot him when he tried to throw
6 it. I may be wrong, but that is, I suspect, the answer.
7 MR GLASGOW: That may help, I am certainly grateful for the
8 attempt.
9 I think the question remains: did it occur to you
10 that he had apparently admitted --
11 LORD SAVILLE: I do not think it does, does it, Mr Glasgow?
12 The statement we have presently on the screen precedes
13 the statement to which you have been referring; is that
14 not right, preceded in time?
15 MR GLASGOW: Sorry, sir, they are in so many forms it is
16 genuinely quite difficult to keep track.
17 LORD SAVILLE: If it did, the statement to which you have
18 drawn attention is a statement where he is being asked
19 whether he can identify somebody. So, on the face of
20 it, what Mr Clarke says is right, is it not?
21 MR GLASGOW: I do not think so, sir, because the statement
22 that I was asking about was taken on 31st January.
23 MR CLARKE: But at 2 o'clock in the afternoon, as appears at
24 page 217.
25 MR GLASGOW: The statement we have on the screen at the
1 moment?
2 MR CLARKE: Was taken at 2 o'clock in the morning, as my
3 learned friend has observed.
4 MR GLASGOW: In that case, I was not helping. I was trying
5 to, I think I failed. I am sorry for that. I will not
6 ask any more questions about that, save only this:
7 I think this is only a matter that perhaps the Tribunal
8 can help us with. I hope I am at least right in saying
9 we have no manuscript or signed version for the
10 statement at 167.029. But I may be wrong about that as
11 well.
12 MR CLARKE: Not in the bundle, we will look and see if there
13 is one.
14 MR GLASGOW: The last matter that I wanted to ask you about,
15 I think for Soldier F, Colonel, is: you were shown the
16 statement, a copy of the statement on which somebody had
17 written the comment about spinning it out until
18 lunchtime because of the discrepancies. Do you have any
19 recollection of an incident like that?
20 A. No, sir.
21 Q. If Counsel or somebody was making a decision or there
22 was some debate about spinning somebody's evidence out,
23 do you think that would have come to your attention?
24 I should have asked: were you physically present in the
25 Tribunal?
1 A. Not all the time. I do not recollect that incident at
2 all.
3 Q. Did you, at any stage, go back to Soldier F and try to
4 sort out the discrepancies that were apparent on the
5 face of the statements?
6 A. No, sir.
7 Q. You did not?
8 LORD SAVILLE: When you have got something like the position
9 with F -- you did talk a little bit about this this
10 morning -- what was the liaison between you and Counsel
11 for the Army; did you have meetings with them and
12 discuss the presentation of evidence and things like
13 that?
14 A. I do not recall. I recall specific meetings, I do not
15 recall specific discussions, other than as mentioned
16 this morning, about V. But it is perfectly possible
17 that these discussions did take place.
18 LORD SAVILLE: Would Counsel normally get their information
19 from you or from others, and if so, who?
20 A. I mean, Counsel had access at all times to the Secretary
21 of the Tribunal. During the course of all the hearings
22 Mr Wallace was present for most of the time to give him
23 background information of a local nature and either --
24 for the most part either I or Major Bailey were, if not
25 present, we were readily available.
1 LORD SAVILLE: Was it run like we run this Inquiry, in other
2 words, were the Inquiry team saying who they wanted to
3 call next, or was it done in a different fashion?
4 A. I think, sir, it was done in somewhat of a different
5 fashion, because of the circumstances in which and the
6 place where the Tribunal was held, but my impression was
7 that, as far as the Tribunal was concerned, Counsel made
8 most of the decisions for the Lord Chief Justice.
9 LORD SAVILLE: I follow that, that is Counsel for the
10 Tribunal. I was just wondering who decided what
11 witnesses to call and when to call them; was that the
12 Tribunal or the Tribunal's Counsel?
13 A. I think it would without a doubt have been Tribunal's
14 Counsel, yes.
15 LORD SAVILLE: Was there any input from the Army team as to
16 how that was to be done?
17 A. Not that I am aware of -- I do not recall any particular
18 detail, but I imagine if there were logistical problems
19 about getting a particular witness at a particular time,
20 but --
21 LORD SAVILLE: That is the same with us, of course.
22 MR GLASGOW: The last matter, I think for F, Colonel, is, if
23 I can take you to B167.031, the third statement in F's
24 file, is this, and I am afraid we do need to look at the
25 whole thing. It says F at the top; do you see that.
1 A. Mmm.
2 Q. Indeed, through the body of the statement it refers to
3 the activities of G.
4 A. Yes.
5 Q. And, if we may go over the page, please, to 032, it is
6 actually signed, "as transcribed by G".
7 A. Yes.
8 Q. I think you were aware of the confusion over this?
9 A. I do not recall it, but I certainly was aware of the
10 confusion when I read it later.
11 Q. You have picked it up when you have been going through
12 the statements to this Tribunal?
13 A. Yes, sir.
14 Q. Can you recall, sir, whether anybody picked it up at the
15 time, that apparently a statement by G had been put in
16 F's name, so to speak, with his reference to it?
17 A. No, sir, I do not recall that.
18 Q. Do you recall anybody picking that up at the time and
19 saying, "Apart from anything else with F, there has been
20 confusion between a statement that must have been made
21 by G, but it has been put in F's name"?
22 A. No.
23 Q. You do not recall anybody noticing that?
24 A. No.
25 Q. If anybody had noticed it at the time and said in
1 respect of a matter which came within your
2 responsibility, sir, "At least one statement has been
3 put in the wrong name of a soldier," it would have been
4 quite a remarkable matter, would that not have stuck in
5 your mind?
6 A. I would have asked the investigators to go back and
7 check.
8 Q. Do you recall that at all?
9 A. No, sir.
10 LORD SAVILLE: I think you may have explained this earlier,
11 Colonel Overbury, in which case I apologise: we get the
12 one or more statements taken by the SIB, but you took at
13 least one or two statements yourself.
14 A. Secondary statements, sir, yes.
15 LORD SAVILLE: Can you describe, in general terms, the
16 circumstances in which you decide to take the further
17 statement?
18 A. As far as I recall, I took statements from the four
19 members of the 22LAD, from Soldier F and from Soldier A,
20 and the circumstances in the case of the four soldiers
21 from the Artillery Regiment. I am fairly certain that
22 I was asked to take statements from them because there
23 was concern as to how there were discrepancies which
24 made it difficult to determine how the three men were
25 shot at the Rossville Street barricades and I think that
1 was the concern at that time, because they were, if you
2 like, third party witnesses and, I suppose, that their
3 evidence could help and there was some confusion.
4 So I am fairly comfortable with the concept that
5 I was actually asked by the SIB to do it.
6 LORD SAVILLE: I was going to ask you who you were asked by,
7 it would be the SIB, would it?
8 A. Yes, sir.
9 LORD SAVILLE: Would it be a fair generalisation that you
10 took statements yourself when there was some such query
11 or difficulty as to inconsistencies?
12 A. Yes, sir.
13 LORD SAVILLE: But you would not take statements in the
14 general run of things.
15 A. No, sir, not at all.
16 LORD SAVILLE: You were really called in, or indeed possibly
17 decided yourself to take a statement if there appeared
18 to be some consistency or similar difficulty?
19 A. Yes, sir, that was a part of the cross-checking.
20 LORD SAVILLE: Is that a fair summary?
21 A. Yes, sir.
22 MR GLASGOW: The last soldier for whom I am concerned who
23 you dealt with, Colonel, is V. I will not repeat the
24 matters you have already tried to help with, but just
25 look at his statements, if we may. It is right to say,
1 is it, that the very first statement that he had made in
2 fact put the sequence of events in either an
3 incriminating or a potentially incriminating order, did
4 that occur to you -- that is unfair; B821.008.
5 A. The statement that V made was put to the Tribunal and
6 that was that he was never further interviewed, except
7 by the Tribunal staff.
8 Q. We have it on the screen now, this is V's first RMP
9 statement. If we look, if we may, at the lower half,
10 the explanation that he was given at 12.30 on the night,
11 was:
12 "I then saw a male person wearing a dark suit, white
13 shirt, he was a young man. He had dark hair. He was
14 standing in a crowd. I saw him draw back his right arm.
15 I saw him throw a bottle with a fuse attached at the
16 end. It hit the ground but did not explode. He moved
17 from the crowd. I fired one 7.62 round, aimed at him."
18 That is what is recorded as what he said to the SIB
19 on the night of Bloody Sunday.
20 A. Yes, sir.
21 Q. Did I understand your position to be, as reflected in
22 the SIB that we did just look at, that if a soldier said
23 something in the initial evidence-gathering exercise
24 that appeared to be self-incriminating, then a different
25 procedure should be adopted, or did you just carry on
1 taking the statement as if nothing had happened?
2 A. This statement that this soldier gave was going to have
3 to be judged by the Tribunal; he had made that statement
4 and I do not know why he was not interviewed again, but
5 he was not and that was the statement he made and that
6 was the statement he was going -- on which any finding
7 would have to be made.
8 It was not my function to make any judgments on what
9 soldiers have said in their statement. The whole
10 operation was conducted in circumstances of
11 a confrontation of some sort which was alleged and, in
12 those circumstances, a statement of this nature I do not
13 think was regarded -- because it was clearly something
14 that this soldier had done in the performance -- he was
15 on duty when he did it and unless that was investigated
16 later and he was charged with any offence, he was not
17 charged at this time and it was not the view that what
18 the soldier said was what was going to go before the
19 Tribunal and it was for the Tribunal to decide -- to
20 make any decision it wished as to that.
21 I do not think any judgment was made before -- in
22 fact I know no judgment was made on any of the
23 statements the soldiers made with regard to whether or
24 not they had committed criminal offences. This was an
25 exercise in which the soldiers had to make statements of
1 what they said had happened and those statements had to
2 go before the Tribunal.
3 Q. At the earlier stage, of course I accept before you were
4 involved, when an RMP or a Special Investigation Branch
5 soldier takes a statement as part of the
6 evidence-gathering process, in the course of which it
7 becomes apparent or the investigator believes that he
8 has an admission of a very serious offence, is not the
9 procedure that the evidence-gathering stops and the
10 soldier is then advised about his position, somebody is
11 called to represent him and a further investigatory
12 statement is taken?
13 A. Yes.
14 Q. That is what ought to happen?
15 A. Yes, sir.
16 Q. You start off saying to the soldier, assuming there is
17 a reasonably good relationship with the RMP, "This is
18 simply an evidence-gathering exercise," and go through
19 the procedures that we looked at, setting the scene,
20 describing what is going on?
21 A. Yes, sir.
22 Q. But if in the course of that exercise a soldier appears
23 to say something, for example that is a breach of the
24 Yellow Card and calls for serious investigation, that is
25 the stage at which the interview stops; he is entitled
1 to be represented and the SIB procedure in the ordinary
2 way would start?
3 A. Yes, sir.
4 Q. Are you aware of that procedure being followed before
5 you arrived on the scene, sir; are you aware of that
6 procedure being followed in any case with any single
7 soldier, irrespective of the admissions that appear to
8 have been recorded on the night?
9 A. No, it did not.
10 Q. Is that one of the reasons why, when you arrived in
11 Northern Ireland and saw what had gone on, you collected
12 everybody together and explained how you were going to
13 run things?
14 A. The purpose of my seeing them and informing them that
15 they were going to be ordered to make statements, I do
16 not think it is correct to say that I was going to tell
17 them how I was going to run things. I was not going to
18 run anything, I was going to do what I was told to do.
19 LORD SAVILLE: As I understand your evidence,
20 Colonel Overbury, you held that meeting and made the
21 statement to the soldiers that they were going to be
22 ordered to give evidence, precisely so they could not
23 incriminate themselves.
24 A. Exactly, sir.
25 LORD SAVILLE: Mr Glasgow, do you have many more questions?
1 MR GLASGOW: I should think five or ten minutes.
2 LORD SAVILLE: I think we will stop for five minutes,
3 please.
4 (1.50 pm)
5 (A short break)
6 (2.00 pm)
7 MR GLASGOW: Colonel, we were looking at V's position. You
8 have helped the Tribunal with the statement he made on
9 the night, containing, apparently, an admission of an
10 unlawful killing. So far as you are aware, the next
11 contact that he would have had with any military
12 investigator would be when he met you at the meeting
13 that you held at Belfast, so far as you are aware and so
14 far as the record shows?
15 A. When I saw the soldiers?
16 Q. Yes. When you saw them all together?
17 A. Yes, sir.
18 Q. And that is, if we are right about that; as I say, that
19 is his recollection. He then goes to a meeting when he
20 had been told by you, among other things, whatever else
21 may have happened in the investigation, whatever may
22 have been said or written, you have absolutely nothing
23 to fear in telling the whole truth from now on, words to
24 that effect?
25 A. Yes, sir, as far as the Tribunal proceedings are
1 concerned.
2 Q. And you recall, indeed I think you do in your statement
3 say words to that effect?
4 A. Yes, sir.
5 Q. Giving some assurance that nobody had anything to fear,
6 provided they told the truth about what had happened?
7 A. For the purposes of the Tribunal proceedings, yes.
8 I could not give them any guarantee that there would not
9 be criminal investigations afterwards.
10 Q. I am not suggesting the contrary, sir. What I am
11 suggesting is that you were aware at that stage that at
12 least some of the soldiers were concerned about the way
13 their statements had been taken hitherto?
14 A. I was not aware of that.
15 Q. But you yourself, from your experience, would not have
16 been surprised if that was the case?
17 A. I cannot answer that, because I do not know the context.
18 All I know is that no soldiers had been charged.
19 LORD SAVILLE: So far as you know, no soldiers complained to
20 you about the way they had been treated beforehand?
21 A. Absolutely not, sir.
22 MR GLASGOW: After you became aware in V's case that there
23 was, putting it mildly, a problem on his RMP statement?
24 A. I am sorry, sir, I did not become aware that there was
25 a problem on his statement. He had made a statement in
1 which he said certain things. As to whether or not that
2 was a problem was not for me to decide.
3 Q. Do you have any recollection of whether V's statement,
4 which we looked at just before the break, the RMP's
5 statement on the night, do you think you had read that
6 at all?
7 A. Certainly, sir, yes.
8 LORD SAVILLE: Mr Glasgow, I am not sure where we are
9 getting to. As I understand Colonel Overbury's
10 evidence -- and he will tell me if I have got it
11 wrong -- he told the soldiers at this meeting that he
12 was going to order them to make statements, and the
13 reason he did that -- again, Colonel Overbury, correct
14 me if I have it wrong -- was because you had been
15 concerned with the problem of incrimination and had been
16 directed, and I think probably accepted, that the way to
17 solve that was to order the soldier to give evidence, so
18 what they said to the Tribunal could not be held against
19 them.
20 A. Yes, sir.
21 LORD SAVILLE: So when Mr Glasgow talks about a problem I am
22 not sure you understand and I am certainly not sure that
23 I understand what, in your eyes, the problem was. If
24 a soldier said something which indicated that he had
25 done something unlawful, then from your point of view,
1 so be it, you had protected him by ordering him to give
2 evidence; do I understand that correctly?
3 A. That is absolutely correct, sir.
4 MR GLASGOW: And you did not consider that it was necessary
5 yourself to take any further statement, or to give him
6 any further advice, or to take him through the statement
7 he appeared to have made on the night?
8 A. No, sir.
9 LORD SAVILLE: Again, can I interrupt, Mr Glasgow:
10 Colonel Overbury has told us that you were not in the
11 business of advising individual soldiers, that was
12 nothing to do with you. You were advising on the Army
13 case?
14 A. Yes, sir.
15 LORD SAVILLE: You were not acting for the soldiers?
16 A. Not as individuals.
17 LORD SAVILLE: As individuals, you were acting for the Army?
18 A. Yes, sir.
19 LORD SAVILLE: I incidentally noted that question and answer
20 about an hour ago, Mr Glasgow, because about three years
21 ago it was suggested to the Tribunal that this team were
22 acting for the soldiers. It sounds as though when that
23 suggestion was made to the Tribunal nobody had asked
24 Colonel Overbury for his opinion. I would be grateful
25 if you could make some inquiries into that matter and
1 let the Tribunal know what the position was.
2 MR GLASGOW: I will, sir.
3 Could we have a look at KH2.13. Could we enlarge
4 paragraph 4. Sir, I think this may be -- if there is
5 anything that is more helpful I will try and find it,
6 because I was not concerned with this at the time,
7 I think it may be where it comes from. This is Mr Hall,
8 now Sir Basil Hall:
9 "From our point of view, it seems to me that there
10 should be no doubt as to whether we are acting for
11 someone or not. The Directorate of Army Legal Services
12 obviously held the view that they were acting for the
13 individual soldiers. In my view, this was wrong."
14 LORD SAVILLE: Who is writing this, sorry?
15 MR GLASGOW: Sir Basil Hall, sir.
16 "In my view, this was wrong -- as far as I was
17 aware, they hold no retainers of any kind for them. No
18 doubt it was convenient to regard them as being
19 represented."
20 Did the Department of Legal Services think they were
21 acting for the soldiers just because it was convenient?
22 Or did you actually believe you were acting for them?
23 A. We did not -- I mean, I did not believe that I was
24 acting for the individual soldiers, no, sir.
25 Q. It is a sort of double hearsay, but did you know that
1 Sir Basil Hall was apparently of the view that the
2 Directorate of Army Legal Services obviously held the
3 view that they were acting for the individual soldiers?
4 A. I did not know he held that view, but his subsequent
5 view I would agree with; we did not. I do not recall
6 ever having a conversation with him on that subject.
7 Q. Simply to help Lord Saville with his question, do you
8 recall whether there was any debate, despite the
9 strained relationships between Counsel and the
10 solicitors involved, as to whether anybody was acting
11 for the individual soldiers?
12 A. No, sir. It was impossible for the Directorate of Army
13 Legal Services to act for individual soldiers. They
14 cannot do it. They have to be represented by outside
15 Counsel.
16 Q. That of course did not happen in this case?
17 A. No, sir.
18 LORD SAVILLE: And the Directorate of Army Legal Services
19 would know that, would he not?
20 A. He would, sir, yes.
21 MR GLASGOW: At any event, the next occasion, after the mass
22 meeting when you had addressed the soldiers, perhaps
23 even the only time that you would have seen V personally
24 was when his final statement was taken?
25 A. No, I do not recall seeing him at all.
1 Q. Forgive me, I may be wrong, I thought your recollection
2 was you sat in when his final statement was taken?
3 LORD SAVILLE: I do not think Colonel Overbury said that.
4 I think your evidence was you were not sure who was
5 taking it, but it was probably that Major -- you thought
6 it would be, in the general run of things, likely to be
7 that Major.
8 A. Yes, sir.
9 LORD SAVILLE: But I did not gather that you remembered you
10 had sat in on it or anything like that.
11 A. Yes.
12 MR GLASGOW: I am very sorry. I thought it was you. Did
13 you have any report of it at all, bearing in mind its
14 seriousness?
15 A. A report of what, sir?
16 Q. The interview.
17 A. No, sir.
18 Q. Nobody came back and told you the way in which the
19 problem had been resolved, if it had been resolved?
20 A. The problem had been resolved: he was not cautioned.
21 Q. But you do not think anybody reported that back to you?
22 A. Yes, I knew the statement was going to be taken, he was
23 not cautioned.
24 Q. But after the statement was taken. Were you, for
25 example, Colonel, were you told what explanation the
1 soldier had given?
2 LORD SAVILLE: Mr Glasgow, we are being a bit confusing. We
3 are talking about what you have categorised as two
4 separate problems. There is the problem of a soldier,
5 making on the face of it a damaging admission. There is
6 Colonel Overbury's problem, if I may describe it as
7 such, which is really nothing to do with that, it is the
8 problem of how you are actually going to run the
9 preparation of the case in view of the
10 previously-decided method of ordering the soldiers to
11 give evidence so that they would not incriminate
12 themselves.
13 If I understand Colonel Overbury correctly -- once
14 again, you will tell me if I have it wrong -- he was
15 exclusively concerned with the sort of administrative
16 problems he could see arising if, having ordered the
17 soldiers to give evidence, they were nevertheless also
18 cautioned by a member of the Inquiry. That was the
19 problem, as I understand it, that Colonel Overbury was
20 grappling with and which was solved by the Inquiry team
21 deciding, after all, not to caution the witness.
22 The problem you are talking about is something
23 entirely separate; have I understood you correctly,
24 Colonel?
25 A. I believe so, sir, yes.
1 MR GLASGOW: On the second matter, that can fairly be
2 described as "my problem," do you know, can you recall
3 whether you were ever told of the explanation that V had
4 given or tried to give for the inconsistent accounts of
5 the consequential events on the day?
6 A. I would have been supplied with a copy of his statement
7 before he gave evidence.
8 Q. Do you recall that before he gave evidence the
9 explanation he gave or tried to give was that all these
10 events had happened in less than a second?
11 A. Yes, sir.
12 Q. You do recall that?
13 A. Well, it is in his statement.
14 Q. Only from reading his statement retrospectively, sir, or
15 do you have a recollection that that was the explanation
16 that he tried to give at the time?
17 A. I do not recall.
18 Q. Forgive me for going back, if I may. The last issue:
19 could we go to CO1.53, this is paragraph 61 of your
20 statement. It is just the first sentence that I still
21 have some difficulty with:
22 "The reason why I would have ordered him to remain
23 silent was to ensure that he could not use the caution
24 as a reason to refuse to make further statements or to
25 answer questions."
1 A. Yes, I think that is ...
2 Q. Forgive me, so you are ordering him to remain silent so
3 as to ensure that he actually speaks; that is what it
4 really boils down to?
5 A. No, no, no, not at all, sir, I am sorry.
6 Q. Does it not actually say that:
7 "The reason why I ordered him to remain silent was
8 to ensure ..."
9 A. I did not order him to remain silent.
10 Q. "The reason why I would have ..."
11 A. I would have ordered him to remain silent if there was
12 a threat of caution and once this problem had been
13 resolved, then I would have ordered him to continue.
14 Q. But the position of V, as you understood it, was that V
15 has been questioned by the RMP on the night?
16 A. Yes, sir.
17 Q. And has made a statement?
18 A. Yes, sir.
19 Q. That any investigator would regard as damning?
20 A. I do not know about that, sir.
21 Q. We can see it?
22 A. I beg your pardon?
23 Q. We can see it?
24 A. I did not hear you.
25 Q. We can see the statement he made on the night, we looked
1 at it together?
2 A. Yes, sir.
3 Q. Incriminating?
4 A. I cannot make a judgment on that.
5 Q. He then attends an interview with the Treasury
6 Solicitor's representative and an Army officer?
7 A. Major Bailey.
8 Q. In the course of that interview the whole situation
9 comes to an end because he gathers he has said something
10 that has caused a major problem?
11 A. Yes, sir.
12 Q. So far as you know, that interview having been suspended
13 because somebody thinks there is a major problem, nobody
14 advises him or tells him what the difficulty is, so far
15 as you are aware?
16 A. As far as I am aware nobody did, no.
17 LORD SAVILLE: When you use the expression "problem",
18 Mr Glasgow, to which problem are you referring?
19 MR GLASGOW: The incriminating problem.
20 LORD SAVILLE: Your problem, rather than Colonel Overbury's
21 problem?
22 MR GLASGOW: Yes. To the best of your knowledge there was
23 no advice or contact with the soldier at all, and to be
24 fair to you, no reason why you believe there should have
25 been?
1 A. Exactly.
2 Q. So far as he is concerned, people go off, QCs and senior
3 officers go off and talk about him and then they come
4 back and they take another statement from him?
5 A. I do not follow that, sir, I am sorry.
6 Q. Thank you very much for trying.
7 Questioned by MS HORWOOD-SMART
8 MS HORWOOD-SMART: Colonel Overbury, my name is Rosamund
9 Horwood-Smart and I appear on behalf of Soldier L.
10 You referred earlier, in the report that you made on
11 23rd March 1972, to the effect on a soldier's morale and
12 memory of repeated questioning. You were present when
13 Soldier L was interviewed by Mr Hirst. If you look at
14 B320, there you see his statement and, if you move on to
15 the last page of his statement, it is B322, there you
16 will see a note of your presence?
17 A. Yes.
18 Q. When you referred to the effects on a soldier's morale
19 and memory, was Soldier L one of the soldiers you had in
20 mind?
21 A. I do not recall, ma'am.
22 Q. Would it help you if I asked a member of the Tribunal
23 Counsel to put up on your screen Soldier L's name and
24 a short description of him?
25 A. Yes, ma'am. I see the name.
1 LORD SAVILLE: Does it mean anything to you?
2 A. No, sir.
3 MS HORWOOD-SMART: It means nothing at all?
4 A. No ma'am.
5 Q. Moving on to a totally different subject, you, of
6 course, were acting for the Army and not for individual
7 soldiers, as we have heard. When you found yourself in
8 the position of different soldiers saying different
9 things, would you point out to a soldier that what he
10 was saying about a certain incident was different from
11 another soldier who might have been beside him?
12 A. No, ma'am, that would have been -- it would not have
13 served a very useful purpose, if I was leading the
14 soldier. I made every effort to ensure that I did not.
15 Q. Thank you.
16 Questioned by MR MACDONALD
17 MR MACDONALD: Colonel Overbury, my name is MacDonald.
18 I represent some of the families. Colonel Overbury, you
19 were aware, presumably, of the formal policy that
20 existed in Northern Ireland, whereby soldiers who were
21 involved in shooting incidents were not interviewed by
22 police officers but by members of the RMP.
23 A. I was not aware of that as a matter of policy, but
24 I accept that that is what happened.
25 Q. I do not need to take you to it, but it appears in the
1 evidence of INQ3 at C3.1 that that seems to be the
2 position.
3 Were you aware there was a philosophy that the Army
4 is a family and it looks after its own, so that
5 a soldier would be unlikely to incriminate or even
6 criticise other soldiers?
7 A. I am afraid that is not actually how I would have viewed
8 it. I was employed as a prosecutor.
9 Q. We have a statement from the Warrant Officer 1835.
10 Perhaps I should show the statement at C1835.5,
11 paragraph 32. I think you have seen paragraph 31 of
12 this statement. You can see there where he says:
13 "Had a soldier made a comment to me such as the
14 command structure broke down that day, I would have put
15 it in his statement. But frankly it is not likely the
16 soldier would say that outside the barrack room. The
17 Army is a family and the family looks after its own."
18 Is that not a principle that you had come across
19 before in your capacity as a prosecutor?
20 A. I do not know how to reply to that. I do not recall any
21 particular incidents where the performance of my
22 particular function was made impossible on such a basis.
23 Q. Can I ask you about the environment in which you were
24 operating in during the currency of this Inquiry.
25 I want to raise the query with you whether the Army
1 Legal Services, including yourself and indeed soldiers
2 were operating in the sort of environment that was
3 conducive to the concealment of misconduct.
4 You were aware, first of all, that the Attorney
5 General had appointed both the Counsel for the Army and
6 the Counsel for the Tribunal?
7 A. No, I was not.
8 Q. You were certainly aware that Counsel to the Tribunal
9 would not be giving the Army a rough time; is that fair?
10 A. Could you repeat that, I am sorry?
11 Q. You had been made aware of the fact that Counsel to the
12 Tribunal, that is the Widgery Tribunal, would not be
13 giving the Army, for whom you acted, a rough time?
14 A. I am sorry, but we had a very rough time.
15 Q. Could I refer you to CO1.25. If you see the next page
16 so you can understand what it is. It is a loose minute
17 written by Mr Kent, is that a deputy under-secretary for
18 the Army?
19 A. Yes, sir.
20 Q. And you can see in the distribution list on the first
21 page, third from the bottom, that this was sent, to
22 among others, the Director of Army Legal Services?
23 A. It was sent to the director, not the directorate.
24 Q. That is what I said. It was sent to the Director of
25 Army Legal Services, who was your immediate line
1 manager?
2 A. Yes, sir.
3 Q. And who appointed you to head the legal team?
4 A. Yes, sir.
5 Q. At Lord Widgery. If you look at sub-paragraph 1(a), it
6 says there:
7 "The Attorney General, who was at this meeting,
8 observed that he thought that we could take it that
9 given the penalties involved the proceedings for the
10 Tribunal should not be abrasive so far as the Army is
11 concerned."
12 Are you suggesting your immediate line manager, who
13 sent you to Northern Ireland to perform this task, did
14 not let you know that was the position?
15 A. Yes, sir.
16 Q. Is there any reason why he would have kept you in the
17 dark about that?
18 A. I cannot answer for my director. The fact of the matter
19 is that the proceedings were at arm's length and very
20 difficult.
21 Q. You will see at sub-paragraph (c) on this page, in the
22 second sentence:
23 "In practice, as he saw it, [this is the Attorney
24 General still] Army Witnesses should have nothing to
25 fear."
1 This was something that was said on 7th February
2 before any evidence was heard. Was that communicated to
3 you by your director?
4 A. No, sir, I never saw that document, nor know anything
5 about its contents, until I was handed a bundle of
6 documents for the course of this proceedings.
7 Q. Did you not appreciate there was actually little danger
8 of any soldier being prosecuted as a result of anything
9 that happened during the course of this Inquiry?
10 A. On the contrary, I thought there was a possibility.
11 That was one of the things -- why I wrote my analysis.
12 Q. Could we look at G117.774?
13 A. Yes, sir, I cannot read it, I am sorry.
14 Q. No, I cannot read it either. Do you see the last line
15 on that page --
16 LORD SAVILLE: Can you explain to the witness what document
17 this is, Mr MacDonald?
18 MR MACDONALD: I do not have a hard copy with me, sir. If
19 we go to the front of this document, please.
20 LORD SAVILLE: It looks like it is some report --
21 MR MACDONALD: It seems to be a note of a visit by the Chief
22 of General Staff.
23 LORD SAVILLE: I am assuming that is the case. If it is
24 not, no doubt the Inquiry's Counsel will be able to
25 correct it. It seems to be a note of that nature,
1 Colonel Overbury.
2 A. Yes, sir.
3 MR MACDONALD: You see in the last line of that there is an
4 indication that:
5 "There was little danger of a soldier being
6 prosecuted."
7 A. Yes, sir.
8 Q. Is that not a view you shared or an understanding that
9 you shared?
10 A. At that time I did not have any views at all and I did
11 not see this statement.
12 Q. So you understand what that was, it was, as appears from
13 page 775, it was a memo dated 7th February 1972, from
14 a person we know as INQ2131, who was a lieutenant
15 colonel and a military assistant to the Chief of General
16 Staff.
17 You are certainly aware that the Attorney General
18 had said that the position of military witnesses could
19 be safeguarded if they were ordered to testify?
20 A. No, sir.
21 Q. Was that not why you had ordered them to testify?
22 A. No, sir.
23 Q. Before I pass on that, perhaps I could record
24 a reference in relation to this. It is CO1.25. I do
25 not need to take you to it.
1 You were aware that the Lord Chief Justice had been
2 prepared to go to extreme lengths to protect the
3 identity of soldiers?
4 A. No, sir.
5 Q. You have even indicated that, although he had seen
6 obvious difficulty in shielding witnesses, he was
7 prepared to accede to whatever application Army Counsel
8 made in relation to that, was he not?
9 A. I do not know anything about that, sir. I never saw
10 that document until these proceedings.
11 Q. I am wondering why you would not have been made aware of
12 these bits of information that appear in all these
13 documents. Would it not have been relevant for you to
14 know all these things?
15 A. No, sir. That was taken at the higher decision level.
16 I was not at that level.
17 Q. But if you were effectively the instructing solicitor --
18 I know you take issue with that description, but if you
19 were effectively the person acting as instructing
20 solicitor to Counsel for the Army, would it not be
21 important for you to know these kind of things?
22 A. That is not for me to judge, sir.
23 MR TOOHEY: Could I ask you, Colonel, whether the transcript
24 accurately records your answer or not. You were asked
25 about something that the Lord Chief Justice had said.
1 You were asked a question in these terms:
2 "You are aware that the Lord Chief Justice had been
3 prepared to go to extreme lengths to protect the
4 identity of soldiers."
5 The transcript records your answer as: yes.
6 A. I was aware -- no, I was not aware that he -- I beg your
7 pardon.
8 MR TOOHEY: No, it is just for clarification.
9 A. The identity of soldiers was always protected in
10 Northern Ireland.
11 MR MACDONALD: Did you regard the Lord Chief Justice as
12 generally a good choice for the Army?
13 A. That is not for me to judge either, sir.
14 LORD SAVILLE: Mr MacDonald, I am not sure we are not
15 beginning to trespass into an area we discussed before.
16 MR MACDONALD: I am conscious of that concern --
17 LORD SAVILLE: I know there is a difficult line, but I must
18 repeat: we are not here sitting on an appeal from the
19 Widgery Tribunal. The reason we are looking at these
20 matters, and the reason we have called Colonel Overbury
21 is for us to be able to check on the reliability or
22 otherwise of the evidence that was available to and
23 given to the Widgery Tribunal on the one hand and to
24 discover what material was then available on the other.
25 After that, however, how it was conducted, what
1 Lord Widgery's view might have been and so on is really,
2 at the moment, to my mind, nothing to the point of what
3 we are trying to do.
4 MR MACDONALD: Yes, sir, I understand that concern and it
5 was present in my own mind when I was formulating these
6 questions. The reason why I am asking these questions,
7 is this: most, if not all, the soldiers rely very
8 heavily, indeed in some cases they rely exclusively on
9 the accuracy and reliability of the statements they made
10 in January and February 1972.
11 My query is whether or not there were conditions
12 that existed and were caused to exist at that time which
13 were conducive to the concealment of misconduct, in the
14 sense that an atmosphere, at the very least, was created
15 which encouraged or at the very least permitted persons
16 involved in the statement-taking exercise to adopt
17 a certain approach, knowing that it would be less open
18 to scrutiny than otherwise might be the case.
19 If there is any merit in that proposition, it is
20 relevant to the reliability of the statements that were
21 taken.
22 LORD SAVILLE: It is a rather Delphic way of stating your
23 position, Mr MacDonald. I am bound to say I do not
24 quite follow it.
25 Certainly we want to examine carefully the
1 circumstances in which this contemporary testimony came
2 to be made. That, of course, I accept fully, and we
3 must examine it. But the reason for doing so is the one
4 I have already given.
5 MR MACDONALD: Another reason why I approached it -- I was
6 not going to spend any more significant time on this
7 particular aspect of the issue -- was that it was
8 suggested there was not a "cosy" relationship between
9 Colonel Overbury and Mr Hall. While I understand there
10 were certain personal tensions between Colonel Overbury
11 and Mr Hall it would be a query that I would wish to
12 raise with him whether or not the relationship
13 objectively, the structural relationship between the
14 Army and the Tribunal was in fact such that it was cosy
15 to the extent that it permitted, perhaps, irregularities
16 to occur; irregularities not for the purpose of pointing
17 out there were irregularities, but irregularities which
18 undermine the reliability of the statements that were
19 taken under those conditions.
20 LORD SAVILLE: So long as you are at present confining
21 yourself to the latter I will let the questioning go on.
22 But I intervened because I could not really see that
23 that line was helping us. But continue, Mr MacDonald,
24 and if I continue to be unfair, I will let you know.
25 MR MACDONALD: I will move on from that particular aspect of
1 the matter, sir.
2 You have said, before I asked you some specific
3 questions about V and F, that the soldiers were
4 traumatised in some way by this episode. I want to show
5 you ARR51.1. That does not look like a traumatised
6 soldier, does it?
7 A. It does not look like a soldier, sir, the one with long
8 hair.
9 Q. The smiling individual on the left-hand side of the
10 photograph is a soldier who was involved in this
11 episode. Of course, you know that soldiers are used to
12 long hours and traumatic experiences?
13 A. Yes, sir.
14 Q. You were not personally aware of any soldier concerned
15 about being unfit to make a statement?
16 A. No, sir.
17 Q. In relation to V, can you explain whether your primary
18 purpose in dealing with V was to protect the interests
19 of the Army or to help uncover the truth about what had
20 happened on Bloody Sunday?
21 A. It was the first.
22 Q. And you informed all the soldiers that they would not be
23 prosecuted on the basis of anything they said while they
24 were making statements?
25 A. For the purpose of that Tribunal, yes.
1 Q. You have been taken to the note made by Mr Heritage in
2 relation to V. I do not want to go over that ground
3 again. It is fairly clear, is it not, V had made an
4 admission to Mr Heritage which was, at least arguably,
5 tantamount to an admission of murder, was it not?
6 A. I cannot judge that.
7 Q. As a lawyer at the time, did you not feel he had made an
8 admission that was tantamount to an admission of murder?
9 A. No, sir, I did not. All the soldiers made their
10 statements on their own account, in an environment of
11 active action, and those statements, in the absence of
12 anything to the contrary, had to stand on their own
13 right.
14 Now, what Soldier V said, as I understand it, if it
15 had not been contradicted or challenged, might have been
16 accepted as being in compliance with the Yellow Card.
17 If that was the case, that was for the
18 Lord Chief Justice to decide and not for me.
19 Q. He clearly could not have been prosecuted on the basis
20 of that statement?
21 A. No, sir.
22 Q. But Major Bailey appears to have been anxious to have
23 avoided any soldier making any statement that would show
24 or suggest that soldiers or the Army were at fault in
25 any way in relation to this shooting?
1 A. I cannot speak for Mr Bailey.
2 Q. But the reality is, as we know, that when Soldier V did
3 come to make a statement to the Tribunal, he effectively
4 withdrew that admission; did he not?
5 A. It would appear so, sir, yes.
6 Q. And as well as that, the testimony that he gave to the
7 Widgery Tribunal was different from the testimony that
8 he had given in relation to this episode -- not to the
9 testimony, but to the evidence he had given in his
10 statement?
11 A. I believe it was.
12 Q. Both the initial written statement and also the oral
13 statement that he had given to Mr Heritage before the
14 interview was suspended?
15 A. I believe it was, sir.
16 Q. Neither Mr Stocker nor Mr Gibbens pointed out that he
17 had made such a previous inconsistent statement in which
18 he had made that admission; is that not right?
19 A. I would have to look, but I accept what you say.
20 Q. Subject to correction, you can take it from me that
21 neither Mr Stocker nor Mr Gibbens did?
22 A. I am happy to do that.
23 Q. Query that: can you explain why Counsel would not have
24 raised that during examination?
25 A. No, sir.
1 Q. Or cross-examination?
2 A. No, sir.
3 Q. Could it have been the case that there was some "cosy"
4 arrangement?
5 A. No, sir.
6 Q. Which meant that it would not be raised?
7 A. No, sir.
8 Q. But that would seem to be one obvious explanation for
9 why neither Counsel saw fit to task Corporal V about
10 that, or Mr V about that?
11 A. I cannot comment on that.
12 Q. I think you can, because of the fact that you were
13 involved so directly in this matter?
14 A. As far as I recall, I never spoke to V, or saw him.
15 LORD SAVILLE: I think what Mr MacDonald is asking,
16 Colonel Overbury, you get the statement made to
17 Mr Heritage. There is then your problem, as you have
18 explained it to us, about the question of a caution.
19 Your problem is solved, because it appears to be agreed
20 at the end of the day that no caution would be given and
21 yet, when the final statement is taken by Major Bailey
22 and, perhaps even more importantly, when the evidence of
23 V is given to the Widgery Inquiry, the other problem (in
24 the terms in which I was discussing it with Mr Glasgow),
25 appears to have disappeared.
1 Did it not strike you at the time that what appeared
2 to have been a somewhat damaging admission, to put it at
3 its lowest, made to Mr Heritage, and indeed confirmed by
4 somebody else who was there that it had been made, did
5 not in the end feature in the evidence given at
6 Lord Widgery's Inquiry?
7 A. Yes, sir.
8 LORD SAVILLE: That is what I think what you were asking.
9 A. He undoubtedly had shifted his position. I do not know
10 to what extent that shift of position affected the
11 actions that he committed because, if I recall
12 correctly, he seemed to hedge his position from one
13 where there was a pause between his firing at the man
14 and to one where that pause was of a very short space of
15 time and at the time I do not know that we could take
16 any particular point on that one and I do not know
17 really what we could have done when soldiers started to
18 change their statements. They were to be judged on the
19 basis of everything they had said and if they changed
20 their statements, the Tribunal was in possession of
21 everything they had said and it was for the Tribunal to
22 judge.
23 I mean, I entirely agree with you, there is a change
24 of position, which is a defensive one.
25 LORD SAVILLE: Do you not recall that it came as rather
1 a surprise, if I may use that word, that what appeared
2 at one stage to be a problem of a soldier making
3 a damaging admission -- the two problems, one
4 administrative problem that was solved, but the other,
5 the fact that a soldier had made a damaging admission,
6 did not come out at the Inquiry.
7 A. I am very sorry, sir, I actually have the opinion that
8 the situation had not substantially changed from the
9 first time to the finish, because of the ultimate
10 statement that he made to the Lord Chief Justice was
11 a statement that he had fired after his victim had
12 apparently disposed of whatever it was in his hand and
13 that that was not a dramatic change of position from his
14 first statement, but he certainly was shortening the gap
15 between the time when he made his first statement to his
16 final statement; and, as far as I would be concerned if
17 I was asked to judge that today, I would say that was
18 a situation that had to go before the
19 Lord Chief Justice for his decision.
20 LORD SAVILLE: Did it surprise you that neither Mr Gibbens,
21 nor indeed Mr Stocker asked Soldier V in front of
22 Lord Widgery if he could explain why he was saying one
23 thing to Lord Widgery and another thing to Mr Heritage?
24 A. I do not recall being surprised, sir, but I do not have
25 a particular recollection of that particular incident
1 when he was giving evidence.
2 MR MACDONALD: I do not want to labour it, sir, but --
3 perhaps I should just take you through the statement
4 very briefly, just to show the difference that there was
5 and ask you for your comment on this. It is B788 --
6 LORD SAVILLE: I am not going to stop you, Mr MacDonald, but
7 Colonel Overbury's evidence -- and we will be asked to
8 assess it at the end of the day -- is that he was not
9 described by what I have described as a discrepancy.
10 You can try again if you like.
11 MR MACDONALD: I think Colonel Overbury is suggesting there
12 really was not much of a discrepancy between the
13 evidence given at Widgery and the evidence given
14 originally, whereas there clearly was a very substantial
15 discrepancy. Insofar as Colonel Overbury is under the
16 misapprehension that there was no real discrepancy,
17 I think perhaps I should take him briefly through this.
18 LORD SAVILLE: I think at the end it may be a matter of
19 comment.
20 The fact of the matter is, Colonel Overbury, on one
21 construction at least, there was a very damaging
22 admission made by V to Mr Heritage in the document we
23 have been looking at. But by the time the final
24 statement is given by V -- and, perhaps even more
25 importantly, at the time when V gives evidence -- the
1 evidence he gives, it can be said, virtually completely
2 removes that damaging admission.
3 The question I was asking was: in those
4 circumstances, do you recall being surprised or
5 disturbed by neither Counsel for the Army nor Counsel
6 for the Inquiry asking V to explain how the very
7 damaging admission had come to be changed so
8 dramatically?
9 A. Sir, I am sorry, but I had not actually at that time
10 taken the view that he had changed his story from the
11 point of view of the sequence of events. What he had
12 certainly done was to shorten the period of time,
13 because in his first statement he does not mention any
14 gap in time, but he does indicate that when he first saw
15 the man in question, whom he said he believed to have
16 some weapon which would justify him opening fire, he had
17 aimed at him but then the man moved and then when he saw
18 him again, he opened fire.
19 Now, as to the question as to whether that
20 particular sequence of events could be justified
21 subjectively under the Yellow Card principles, I took
22 the view that it was certainly a matter which was --
23 would need close scrutiny because, I think as you have
24 said, you have taken the view that it amounted to a very
25 serious offence.
1 I did not take that view at the time and, because it
2 was for the Lord Chief Justice to decide, I did not know
3 the full context of everything, but the situation never
4 changed, as I understood it; but he still admitted, from
5 the first day up to the last, that he had fired after
6 whoever the unfortunate person that he shot had been in
7 possession of a weapon.
8 MR MACDONALD: In fact, Colonel, I am not going to take you
9 through all these statements if the Tribunal does not
10 wish me to. But in fact the situation is quite the
11 opposite of what you have just described, because there
12 was a material gap between seeing this bottle or petrol
13 bomb thrown and the shooting of the man in question in
14 the first statement.
15 A. Yes, sir.
16 Q. And then later on it became something that happened in
17 a split second.
18 A. But that is what I am saying: I agree with you.
19 Q. Whatever about the nature of the evidence, this had been
20 a major issue between yourself and the Tribunal team.
21 A. No, sir.
22 Q. It had not?
23 A. No, sir.
24 Q. This exchange of correspondence we have seen, and the
25 notes, was that a fairly normal state of affairs?
1 A. That was to do with his ability to continue to give his
2 evidence.
3 Q. I will not press the matter. Perhaps I will leave it
4 for submissions, sir.
5 LORD SAVILLE: We will take a five-minute break,
6 Mr MacDonald.
7 (2.50 pm)
8 (A short break)
9 (3.00 pm)
10 MR MACDONALD: If I could move on to Soldier F, Colonel.
11 I do not propose to take you through all the statements
12 again, but there were in fact four statements made by
13 Soldier F before the statement that was taken by you;
14 were there not?
15 The first statement was the main statement we have
16 seen, made in the early hours of the morning,
17 31st January. It is at B1.21. That is the one where no
18 reference to made to shooting anybody at the rubble
19 barricade and no reference was made to shooting anyone
20 in Joseph Place.
21 Then there was a second statement Mr Glasgow
22 referred to, made later on that day and in which there
23 was no reference to any shooting at the rubble
24 barricade?
25 A. Yes, sir.
1 Q. Then there was a third statement, it is undated, at
2 B129. In which there was no reference. Then a fourth
3 statement that has not been referred to yet, that is at
4 B132?
5 LORD SAVILLE: Do you want that one up?
6 MR MACDONALD: Yes, please. Before I deal with that,
7 I should perhaps ask you something in relation to the
8 third statement. This is at B129. There was some query
9 whether this was F's statement, because at B130, it is
10 signed Soldier G. In actual fact, if you look at the
11 body of this statement at B129, and especially the
12 bottom half of the page, you can see that he is
13 referring to himself and G in two different places, do
14 you see, "Myself and G"?
15 A. Yes, sir.
16 Q. And then later on in the next paragraph, "I saw G"?
17 A. Yes, sir.
18 Q. It appears that that was a statement by F. Then there
19 is the fourth statement we had on the screen a moment
20 ago at B132. That was dated 15th February and that
21 relates to arrests. Again in fact that appears to be
22 signed by Soldier G but clearly is about Soldier F
23 because it relates to people that he arrested, that
24 Soldier F arrested.
25 In any event, by 15th February, this soldier had had
1 the opportunity to make four different statements and in
2 not one of them had he referred to any shooting at the
3 rubble barricade, or indeed to any shooting at
4 Joseph Place.
5 Can we take it that it was not he who volunteered to
6 you to make another statement?
7 A. I do not know that, I cannot recall the circumstances.
8 Q. You do not remember a soldier coming to you and saying
9 that he had suddenly remembered shooting two different
10 people in two different places and wanted to make
11 a further statement?
12 A. I do not recall the exact circumstances, I am afraid.
13 Q. It is more likely that you or someone in the Army Legal
14 Services went to him, invited him to attend for
15 a further interview?
16 A. He was brought to Lisburn on Saturday, 19th February,
17 I think it is and I would assume that that was at the
18 suggestion of the Special Investigation Branch.
19 Q. There was nothing in any of his four previous statements
20 over the previous two and a half weeks that would have
21 helped him to recall shooting two different people in
22 two different places?
23 A. No, sir, not until he saw the photographs.
24 Q. There was nothing in the photograph that you showed him
25 that would have helped him recall that either?
1 A. Well, they were a more accurate exposition of the
2 screen.
3 Q. Do you remember how you broached the issue at all?
4 A. I do not.
5 Q. You have absolutely no recollection of how the
6 conversation started or you explaining why he had been
7 brought in or him asking why he had been brought in or
8 you taking him through photographs or anything of that
9 kind?
10 A. The only assistance I can get is from the first two
11 lines of that statement.
12 Q. This is the one where he says:
13 "I have now read my previous statements ..."
14 I am looking at B135:
15 "... and looked at maps and photographs of the area,
16 and realised I had mistaken the sequence of events."
17 A. Yes, sir.
18 Q. It was not so much a mistake about the sequence of
19 events, as a sudden recollection of shooting two
20 different people in two different places -- two
21 additional people?
22 A. Yes, sir.
23 Q. That is the only help that you can provide in relation
24 to how this all came about?
25 A. I am very sorry, sir, it is.
1 LORD SAVILLE: You think, have I understood your evidence
2 correctly, that the SIB would have put you on to this
3 case because of some difficulty?
4 A. Yes, I have really tried very hard to try and think and
5 the only thing that I can do is that it is connected
6 with the four statements taken from Soldiers 231 to 233
7 on the 16th, because they all related to the shootings
8 that took place at the barricade on Rossville Street and
9 quite clearly Soldier F was implicated in those
10 shootings, but it did not appear, I think, that the
11 situation was that the evidence was so confused, and
12 because F had made a number of inconsistent statements,
13 that it would be advisable for me to see him again and
14 for me to try to get him to take me through the events
15 as he now recollected them, having a good look at his
16 previous statements, at the map and the photographs.
17 LORD SAVILLE: But Mr MacDonald's point -- tell me,
18 Mr MacDonald, if I get it wrong -- is that for this
19 individual to say, "I realise I have mistaken the
20 sequence of events," does not really answer the point.
21 It is not a matter of having mistaken the sequence of
22 events; it is the fact of the matter of having not
23 mentioned he had shot two people.
24 A. That is perfectly true. This is the first time he
25 ever -- to my knowledge, this is the first time he had
1 ever told anybody he had.
2 MR MACDONALD: Even though he had talked in previous
3 statements about seeing people at the rubble barricade.
4 A. Yes, this was a problem.
5 Q. Do you remember the circumstances in which you found out
6 or were informed that the bullet which killed
7 Michael Kelly had been fired from F's gun?
8 A. Yes, the matter was raised this morning. I do not think
9 I could have known until much later.
10 Q. That is not the question I was asking you.
11 LORD SAVILLE: What you said a moment ago, Colonel, you said
12 you put your mind to this, it may be -- I do not think
13 you are putting it any higher than that -- that because
14 of statements of some other soldiers you had seen, which
15 might, at least on one view, implicate F in more
16 shootings than he had previously mentioned in his
17 statements, you called him in, or the SIB suggested he
18 should be called in, and is it possible that you
19 mentioned this possible implication to F and he then
20 told you about these two other people that he says he
21 shot; is that a possibility?
22 A. I think it is a possibility, yes, sir.
23 Q. But you cannot put it any higher than that?
24 A. No, it would have to have been put -- had I known that
25 his bullet was in Mr Kelly's body, I would have told him
1 that.
2 MR MACDONALD: That was the next question I was going to ask
3 you. You must remember telling this soldier that,
4 contrary to what he had said before or at least contrary
5 to the impression that had been given in his statements,
6 he in fact had shot someone at the rubble barricade.
7 A. I am sorry, I do not believe that I knew that at that
8 time, but if I had known at that time, I certainly would
9 have told him.
10 Q. When you took this statement do you mean you did not
11 know then that he in fact had definitely been linked
12 with someone who was shot at the rubble barricade?
13 A. Yes, sir, I do not think I could have.
14 Q. Of course you did have at that stage photographs of
15 Michael Kelly at the rubble barricade?
16 A. Yes.
17 Q. Having been shot?
18 A. There were colour photographs of all the deceased, but
19 I did not show them to him, he was shown those
20 photographs by the SIB.
21 Q. Do you have any recollection of telling this soldier
22 that he had shot a particular individual at the rubble
23 barricade?
24 A. No, sir.
25 Q. Not a thing?
1 A. Not a thing, sir.
2 Q. It is no doubt the case, though, that he had shot this
3 person at the rubble barricade; is that not right?
4 A. That is undoubtedly true, yes.
5 Q. And not only did you have the evidence of Dr Martin
6 about that, but you had secured the services of what the
7 Attorney General described as, "the best ballistics
8 expert in the business," at least that was the direction
9 he gave to you, was it not?
10 A. The ballistic and the forensic evidence was not done by
11 the Army, it was done by the Tribunal.
12 Q. I am just referring to a passage that appears, it is
13 CO1.12, paragraph 5. Do you see there, in the second
14 sentence, this is the Attorney General:
15 "He directed Treasury Solicitor to retain Sir Keith
16 Simpson to advise on the autopsy reports, and also
17 directed the Treasury Solicitor to brief the best
18 forensic/ballistic expert in the business."
19 Was that not done?
20 A. I suppose so, but that was the Treasury Solicitor, not
21 the Army.
22 Q. I am wondering whether or not Dr Martin was regarded as
23 best ballistic expert in the business or whether there
24 was someone else engaged on behalf of either the
25 Tribunal or the Army to check Dr Martin's work?
1 A. I do not know, sir.
2 Q. In any event, you do not remember any query being raised
3 about the correctness of Dr Martin's conclusion?
4 A. No, sir.
5 Q. In relation to the sequence of events concerning the
6 information about this link between the bullet that was
7 found in Michael Kelly's body and Soldier F's gun, it
8 has been drawn to your attention -- in fact I think this
9 has been the subject of some discussion between you and
10 your Counsel over the last period of time, is that
11 right?
12 A. I beg your pardon, sir, I am not following you.
13 Q. You are aware, and you have been aware for perhaps two
14 or three weeks or more, that there was going to be
15 a query about whether or not you would have been aware
16 of the fact that the bullet found in Michael Kelly's
17 body had been traced to Soldier F's gun, and whether you
18 had communicated that to Soldier F?
19 A. Oh, yes, sir, it is in the transcript.
20 Q. Apart from that, was there not some recent discussion --
21 I do not want to ask you the details of the discussion,
22 but you have thought about this for some weeks, have you
23 not?
24 A. Yes, sir.
25 Q. Your attention has been drawn to the fact that there was
1 a meeting on 14th February at which Dr Martin indicated
2 that a comparison could be done between the bullets and
3 the gun to find who had fired particular shots. Your
4 attention has been drawn to a letter written by
5 Dr Martin to the RUC on 29th February; in fact, there
6 was a draft on 28th February that was shown to you.
7 Indeed, for completeness, I think it has also been
8 drawn to your attention that on 17th February
9 Professor Simpson wrote a note indicating that tests
10 could be done on these bullets. Could it be the case
11 that you received advice directly from Dr Martin or from
12 some other source on or after 17th February and well
13 before 28th February when this information was
14 communicated to the RUC?
15 A. No, I do not think that is possible, because the only
16 information that we would have got on that basis was
17 when we would have been notified by the Treasury
18 Solicitor and to my knowledge, we were not notified by
19 the Treasury Solicitor, we did not know about this until
20 later.
21 I have to say that, if I had known, I would have put
22 it to the soldier that there was a bullet found in
23 Mr Kelly's body, which came from his rifle. Undoubtedly
24 I would have told him that. But I do not think I did
25 because I did not know.
1 Q. The route for this information would have been, as far
2 as you are concerned anyway, from Sir Basil Hall to you?
3 A. Yes. Well, I think probably more likely Sir Basil Hall
4 to Mr Gibbens and from Mr Gibbens to me.
5 Q. Are you sure about that?
6 A. Well, no, I am not sure.
7 Q. Could it in fact be the opposite way round: that you
8 were responsible for acquiring this information and you
9 would have communicated it to Sir Basil Hall?
10 A. No, sir.
11 Q. That is definitely wrong?
12 A. Definitely wrong.
13 Q. I wonder if you could look at CO1.274. This is a memo
14 dated 1st March 1972 from Basil Hall, as he then was, to
15 yourself; is that right?
16 A. It is addressed to me, but copied to the DAPM, who was
17 the Deputy Assistant Provo Marshall, who would be in
18 a position to respond to most of the questions.
19 Q. It was addressed to you?
20 A. Absolutely, yes.
21 Q. Can we take it that it was received by you?
22 A. That I cannot be sure, because I do not recall this
23 document. Many of the exchanges between Mr Hall and
24 myself -- some in particular were in fact dealt with by
25 other people and there were, in some of the exchanges
1 between us, others signed in my name.
2 Q. You have been referred to this document already today
3 for another purpose, but in paragraph 1 you see that
4 Sir Basil Hall is asking you to identify the two
5 soldiers who fired the recovered bullets?
6 A. Yes.
7 Q. I may be wrong, but if you look at CO1.275, that seems
8 to be the reply to that?
9 A. Yes.
10 Q. In which you say "today".
11 A. No, this is not a reply to that note. This is
12 a different response. It is dated 2nd February.
13 Q. My copy does not have a date that I can see.
14 A. What is on the screen in front of me does.
15 Q. That is the wrong -- I see the reference is the same.
16 I have a CO1.275, which is a different document. Give
17 me a moment, sir, please?
18 A. There is a document which responds to this, sir.
19 Q. It is certainly the next page in this series. There is
20 another reference on mine, I am not sure this will help
21 the technical staff, it is PIN16638. It is also
22 entitled "document 42"?
23 LORD SAVILLE: That is the one on the screen, I think. That
24 is the request to Colonel Overbury. You have something
25 you think may be the answer to it?
1 MR MACDONALD: I do, sir. If I show this to my learned
2 friend Mr Clarke, he may be able to tell me the
3 reference.
4 MR ELIAS: Sir, if it helps at all, we have all, I think,
5 been supplied with the PIN documents that were recently
6 recovered and there is, as Mr MacDonald says, a reply
7 sheet and certainly, if it helps to proceed matters, the
8 answer to the question on document 274:
9 "Please identify the two soldiers who fired
10 recovered bullets?"
11 Is: "Today."
12 MR MACDONALD: I am obliged to my friend for confirming
13 that, but it would be helpful if the Tribunal had it
14 itself, I suppose.
15 LORD SAVILLE: I have a hard copy now.
16 MR MACDONALD: The point simply is, Colonel Overbury,
17 contrary to what you were suggesting, it would appear
18 that Sir Basil Hall was asking you to provide the
19 information about who fired the recovered bullets?
20 A. No, sir, Mr Hall was asking to identify the soldier to
21 whom the rifle, which had been identified by the
22 forensic experts instructed by Mr Hall, to whom that
23 rifle had been issued, and he was told.
24 Q. Why would he be asking you that question if he was the
25 person to whom Dr Martin would have reported?
1 A. Because, sir, the rifles --
2 LORD SAVILLE: (inaudible) know the name of the soldiers,
3 would he? He would know the numbering of the rifle.
4 A. That is true, yes.
5 LORD SAVILLE: But I do not think there was any evidence to
6 suggest Dr Martin knew the name of the soldiers. He
7 simply was supplied with a number of rifles.
8 A. Yes.
9 LORD SAVILLE: So is not what Colonel Overbury says correct,
10 that you would get the results from Dr Martin, they
11 would not help you very much until you had collated the
12 rifle numbers of the soldiers. The only people who
13 could do that are the Army, is that not right?
14 MR MACDONALD: Yes, I think that may be right, sir, yes.
15 I apologise, Colonel, for misreading that.
16 A. Not at all.
17 Q. There is another document in this sequence. I am not
18 sure if this is before the Tribunal, CO1.22 4.
19 A. It is a bit difficult to read, but ...
20 Q. If we could highlight the top half of the page, first of
21 all. Here Sir Basil Hall was asking you to arrange for
22 certain statements to be taken?
23 A. Yes, sir.
24 Q. 1(b) is the officer who kept the brigade log on
25 30th January. He is to bring with him his original
1 manuscript log, "if it still exists"?
2 A. Yes, sir.
3 Q. Do you know why that was not achieved?
4 A. I do not, sir, no.
5 Q. You were also asked to provide a statement from the
6 soldier who was occupying the turret of the support
7 company Ferret.
8 You know there is an allegation that that soldier
9 may have fired; do you know why that soldier did not
10 make a statement to you?
11 A. I am sorry, I do not.
12 LORD SAVILLE: I wonder, perhaps Colonel Overbury can help
13 us on this, Mr MacDonald. The request is:
14 "I wish to arrange for statements to be taken from
15 the following ..."
16 I think you are rather assuming that Mr Hall is
17 asking Colonel Overbury to take statements. I would
18 rather read it as asking Colonel Overbury to produce
19 people, so the Inquiry can take statements.
20 MR MACDONALD: In fact the Brigade Major, certainly at 1(a),
21 made his statement to Colonel Overbury; is that right,
22 Colonel?
23 A. I do not recall, sir. I certainly took statements.
24 I do not know whether taking statements --
25 Q. I may have been wrong about that, I thought you had
1 taken a statement from him as well?
2 A. I certainly, in the early days, saw all of the officers
3 directly concerned, from the Commander Land Forces
4 downwards. The question of statements: my recollection
5 is that most of them wrote out statements themselves and
6 I went through them with them and then handed them over.
7 They were all then subsequently invited to make
8 statements to Mr Hall personally.
9 Mr Hall personally took the statements from all the
10 officers from Lieutenant N right up to the Commander of
11 Land Forces.
12 Q. You see at (d) they are seeking to arrange a statement
13 to be taken from the soldiers who entered Glenfada Park.
14 Do you know why there was a delay in arranging that?
15 A. I do not, sir, no, not now.
16 Q. At paragraph 3:
17 "We still do not have evidence identifying the
18 soldiers who fired the bullets found in two of the
19 deceased."
20 A. What is the date of this document?
21 Q. It appears to be 7th March. Do you know why there was
22 a delay in relation to that?
23 A. I do not, sir, the -- I do not know the machinery for
24 tracing the numbers of rifles in relation to soldiers,
25 it is not a matter with which I would have any
1 familiarity.
2 Q. It has already been drawn to your attention that
3 Mr Read, for the Tribunal, at the Widgery Tribunal did
4 not put F's previous inconsistent statement in relation
5 to firing a round or rounds at the rubble barricade.
6 The fact that he did not do that and the fact that no
7 reference was made by Army Counsel or Tribunal Counsel
8 about V's previous inconsistent statements does tend to
9 undermine the suggestion that you have made in your
10 evidence, that there was no point in persuading soldiers
11 to change their accounts, because their statements were
12 given to the Treasury Solicitor; would you accept that?
13 A. I do not understand the question, I am sorry.
14 Q. What you have said in your statement at paragraph 51, if
15 you need to see it, at CO1.49, that there was no point
16 in persuading soldiers to change their accounts, because
17 their statements would have been given to the Treasury
18 Solicitor?
19 A. Yes, sir.
20 Q. But the consequence of giving those statements to the
21 Treasury Solicitor was not the consequence you might
22 normally have excepted. In other words, these
23 discrepancies and inconsistencies were not, in most
24 cases, drawn to anyone's attention?
25 A. I am sorry, I cannot comment on that, because I was not
1 conducting that stage of the case.
2 Q. The reason I am asking you this is because it raises the
3 query whether or not there was some special relationship
4 that existed between you yourself personally and the
5 Tribunal?
6 A. Well, there was not.
7 Q. I think you have also had your attention drawn to the
8 change in Soldier A's statement. I do not think I need
9 to delay the Tribunal about that.
10 Maybe I misheard you, but I think you said today
11 that you were told by Mr Hall not to provide these
12 previous inconsistent statements to the family's
13 Counsel?
14 A. No, sir, I was not. I was told to hand to Mr Hall all
15 statements. The question as to whether they went to the
16 families was a matter for him and, as I understood it,
17 the decision had been taken that neither side would get
18 the other side's statements and that, as far as I am
19 aware, is the case.
20 Q. Perhaps I could show you what you said at page 16 in
21 today's transcript at line 9.
22 A. Yes.
23 Q. I may have misunderstood it. The question was:
24 "Question: Am I right in thinking that although you
25 took all the statements to the Widgery Tribunal, the
1 statements of the soldiers were not in fact circulated
2 to the interested parties at the Tribunal, nor indeed
3 were the statements of the civilians circulated to the
4 Army?
5 "Answer: That is correct, sir. That was what
6 Mr Hall told me."
7 I took it from that Mr Hall told you not to
8 circulate these statements of soldiers to the families?
9 A. No, sir.
10 Q. That is not what you meant?
11 A. No, sir, it was Mr Hall's decision, what he was going to
12 do with those statements. My responsibility was to
13 ensure, to the best of my ability, that he got
14 everything he required. What he did with it from then
15 on was not my concern.
16 Q. Was there a discussion about this?
17 A. Not that I recall, except to the extent that I think we
18 were aware of the fact that the Tribunal was not going
19 to let either side see the other's statements.
20 Q. I think you have also said in paragraph 3 of your
21 statement, CO1.49, that you were not asked for any
22 previous statements?
23 A. Sorry.
24 Q. CO1.49, paragraph 53. Do you see, towards the bottom of
25 the page:
1 "I do not remember any request by other interested
2 parties to see material submitted on behalf of the Army
3 and, as far as I am aware, none was made."
4 A. That is, none was made to the Army.
5 Q. In fact, during the Widgery Inquiry itself, a request
6 was made for previous statements, was it not?
7 A. If it was, I do not recall and if it was, it would be
8 a matter for Mr Gibbens to deal with.
9 Q. I do not need to take you to it, it is in the Widgery
10 transcript, Day 2, page 43.
11 I move on, Colonel, to the question of Army
12 photographs?
13 A. Yes, sir.
14 Q. I think you remember, or at least you did remember at
15 one stage, that you saw Army photographs that were shot
16 both from the ground and from the air?
17 A. I think I made that statement in my original report of
18 23rd April, but, I mean, my recollection is that I did,
19 yes, sir.
20 Q. I am not sure you did say that in your original report,
21 but if I could draw your attention to CO1.277, that is
22 a letter that was written on your behalf by your
23 solicitors on 15th June 2000?
24 A. Yes, sir.
25 Q. At the bottom of the page you say:
1 "Mr Overbury was informed at the time that
2 photographs had been taken by photographers employed by
3 the Army during the course of the events that occurred
4 in Londonderry on 30th January. Mr Overbury saw many
5 such photographs taken from the ground and also, he
6 believes, from the air."
7 A. Yes.
8 Q. It also appears, at the bottom of that paragraph, that
9 you would not disagree with the figure of 1,000
10 different photographs, that is 1,000 different Army
11 photographs?
12 A. Yes, sir.
13 Q. For completeness, I should also draw your attention to
14 a sentence at the top of that page:
15 "He was also present when photographs of the scene
16 were taken from an Army helicopter."
17 We are talking about photographs that you saw that
18 were taken from the Army from the air in relation to
19 Bloody Sunday?
20 A. Yes, sir.
21 Q. Which are separate from the photographs that were
22 subsequently taken while you were present in an Army
23 helicopter for the purpose of assisting in the
24 statement-taking exercise?
25 A. Could you explain that, I have not followed you?
1 Q. You seem to be saying in this letter that you saw Army
2 photographs that were taken, not just from the ground,
3 but from the air?
4 A. Yes, sir.
5 Q. Presumably on Bloody Sunday?
6 A. No, I do not think so. The photographs that I am
7 familiar with were the photographs taken from the
8 helicopter. I had understood that photographs were
9 taken on Bloody Sunday from a helicopter, but I am not
10 sure I can help you --
11 LORD SAVILLE: Colonel Overbury, what Mr MacDonald is
12 asking, if we go back to CO1, the first page of this
13 letter, go right to the bottom of the previous page:
14 "Mr Overbury ... saw many such photographs taken
15 from the ground and also, he believes [next page] from
16 the air. He was also present when photographs ... were
17 taken from an Army helicopter."
18 Mr MacDonald is suggesting that, according to
19 Allen & Overy, your recollection at this time was that
20 you saw Army photographs, many of them, some taken from
21 the ground, some taken from the air, over and above and
22 different from the photographs that were taken when you
23 went up in the helicopter; that was the point,
24 Mr MacDonald?
25 MR MACDONALD: In fact, if you look at paragraph 3 again,
1 such photographs were photographs, the first sentence:
2 "... photographs taken by the Army during the course
3 of the events that occurred in Londonderry on
4 30th January."
5 A. Yes, sir.
6 Q. So you saw photographs taken from the air during the
7 events that we are concerned with?
8 A. I believe I did, sir, yes.
9 Q. What did they show?
10 A. I cannot recall, sir.
11 Q. Any of them?
12 A. No, sir. I mean, I believe that I saw many, many
13 photographs. The point that I made in my report on the
14 23rd was that there had been these photographs and that
15 the whole question of photography should be re-examined,
16 because it did not seem to have been very satisfactory
17 and that it should be improved and I commented on the
18 fact that there was not a single photograph -- I had
19 been informed there was not a single photograph which
20 identified someone taking hostile action.
21 Q. That is not quite the point I am on now, though, because
22 I think what you said today was that you could not
23 actually remember whether there were any Army
24 photographs. If we look at page 69 of today's
25 transcript. At line 15:
1 "When I went back to make this report, I put in all
2 the statistical information that I could for the
3 information and I would have verified all that
4 information from sources within the headquarters and
5 I cannot remember from whom I got that information and
6 I am afraid I cannot remember whether these were
7 different photographs ..."
8 This was on the question of whether there were 1,000
9 different ones or different copies:
10 "... or if they were 1,000 copies of the same
11 photographs, or where those photographs have come from."
12 A. Yes, sir.
13 Q. You seem there to have been suggesting that maybe you
14 did not remember at all whether they were Army
15 photographs or whether there were 1,000 or much fewer
16 than that?
17 A. My recollection about the photographs is extremely hazy,
18 but --
19 Q. Is it, though, Colonel, because two years ago in that
20 letter of June 2000 you had no difficulties in
21 suggesting you had seen photographs that were taken by
22 the Army from the ground and from the air and there were
23 more than 1,000 different ones. Indeed, when you made
24 your statement in November last year, you confirmed that
25 you had seen Army photographs?
1 A. Could we go back to that one?
2 Q. Yes, it is at paragraph 69 of your statement, CO1.51:
3 "I saw a large amount of the Army photographs."
4 A. Yes.
5 Q. In the second last sentence:
6 "There were certainly pictures of soldiers and there
7 were some taken from the air and from the ground."
8 When you had such a clear recollection in June 2000
9 and November 2001, how is it that today you had such a
10 lapse of memory, and were not even sure whether you saw
11 Army photographs?
12 A. Well, I do not -- I am getting slightly confused. On
13 the issue of photographs, certainly I saw photographs
14 and they must have had soldiers on them; I do not think
15 I could deny that.
16 Q. I thought you were denying that?
17 A. If I did, it is not my intention.
18 Q. You do not have a recollection of any photograph at all
19 now, is that the position?
20 A. No, no, I have a recollection of photographs, I do not
21 have a recollection specifically of what they portrayed.
22 Q. We know from what you have said just a moment ago that
23 they did not show anything that helped the Army?
24 A. That was what I was told.
25 Q. Did you not look at them all?
1 A. As far as I know, I did not. No, I do not know how many
2 photographs I looked -- I never saw any with hostile
3 action and when I made my report I must have checked
4 that with the resources within the headquarters: were
5 there any, you know -- I never saw any -- are there any
6 pictures which showed hostile action, and the answer
7 would have been: no, otherwise I would not have put it
8 in my report.
9 Q. You had seen the operational order about photographs?
10 A. Oh, yes, sir.
11 Q. You had seen that the intention was to provide at least
12 ten photographers on the ground who were to occupy
13 positions at different places around the march, to
14 provide maximum photographic coverage, to move forward,
15 to take photographs of all the important scenes?
16 A. Yes, sir.
17 Q. As well as perhaps other photographers that were not
18 mentioned in the order, including one we know of in the
19 Embassy building.
20 A. I do not know about that.
21 Q. Did you not enquire why there was not one of those
22 soldiers who had managed to take a single relevant
23 photograph?
24 A. I do not recall doing so.
25 Q. Would that not have been one of your primary concerns
1 as, effectively, the instructing solicitor here?
2 A. I was not responsible for that aspect of the case. That
3 was the responsibility of the DAPM.
4 Q. Did Mr Gibbens not ask you why there are not any
5 photographs, among these 1,000 plus photographs, that
6 show civilians doing anything wrong?
7 A. I do not recall that, sir.
8 Q. Are you saying this was not the subject of any kind of
9 debate between you and anyone else?
10 A. Not that I can recall, sir.
11 Q. Do you have any idea why they may not have found their
12 way to the Tribunal itself?
13 A. No, sir. The only thing that I do know is that when
14 I made my report I asked about photographs and the
15 information I was given was that 1,000 photographs, more
16 than 1,000 photographs had been requested and handed
17 over and I put that in my report.
18 Q. Could I draw your attention to CO1.5. In this report
19 you refer, over the page CO1.6, paragraph 12, to
20 preparing volumes of evidence and an analysis of the
21 evidence?
22 A. Yes, sir.
23 Q. And you say:
24 "15 copies of all volumes of evidence, plans and
25 maps were provided for the use of the Tribunal."
1 You do not refer there to providing any photographs,
2 do you, to the Tribunal?
3 A. Yes. An analysis of the evidence was prepared and the
4 shot plot was amended after witnesses had been shown
5 aerial photographs. 15 volumes of all -- volumes of
6 evidence, plans and maps were provided for the use, and
7 that would have included the photographs.
8 Q. Yes. The aerial photographs, of course, are the aerial
9 photographs that you had arranged to be taken.
10 A. Yes, sir.
11 Q. I am talking about the Army photographs that were taken
12 on the day. I am sorry if I did not make that clear.
13 When you are referring there to all the kinds of
14 evidence you submitted to the Tribunal, you do not refer
15 to photographs?
16 A. That was a separate issue. The issue I was concerned
17 with was the evidence from the soldiers and their
18 exhibits, specific exhibits would have been the maps and
19 the aerial photographs. Any other photographs were the
20 responsibility of the other part of the team and when
21 I made my report, I checked whether that had been done
22 and I was told there were 1,000 photographs, and I put
23 it in my report. I would not have put it in my report
24 if I had not been told that.
25 Q. Could I also refer you to CO1.20, paragraph 7. Sir,
1 this is a document that appears to have been written by
2 Mr Kent on 2nd February?
3 A. I did not see that document at the time.
4 Q. In that document, and I am not saying you are
5 responsible for it, he says:
6 "We identified the following items to be covered in
7 the preparation of the Army's case ..."
8 And he lists the various items. Again, there is no
9 reference to Army photographs. Do you know why that
10 would have been?
11 A. No, sir.
12 Q. You have already had it drawn to your attention that all
13 the Widgery Tribunal staff seem to have no recollection
14 of seeing photographs?
15 A. Yes, sir.
16 Q. Could it be the case that the Army did not provide even
17 the Army photographs to the Widgery Tribunal?
18 A. I have no knowledge of that.
19 Q. Who would have better knowledge of that than you, as
20 head of the Army Legal Services team?
21 A. The officers responsible for supplying, collating and
22 supplying that information.
23 Q. Who is that, if it was not you?
24 A. It certainly was not me.
25 Q. You would have supervised this, presumably?
1 A. No, sir, my function --
2 LORD SAVILLE: Who in the Army team would have supplied
3 material to the Tribunal -- when I say "the Tribunal",
4 I include the Inquiry as a whole: Mr Hall, Mr Heritage,
5 Mr Stocker and so on. Who would actually have handed
6 over things like statements or anything else to the
7 Inquiry?
8 A. The DAPM.
9 LORD SAVILLE: On your direction, or what?
10 A. No, I do not think so, because that -- when the team was
11 set up, which was -- it was run on something of an
12 ad hoc basis, because of the time limitations, and
13 certain responsibilities were allocated and attributed
14 as the time went on, on an ad hoc basis.
15 But the question of evidence, of the nature of
16 photographs, was not a matter which I had any dealings
17 with, or control over. My dealings related to the
18 collation of statements.
19 But it is true that when Mr Hall wanted evidence, he
20 would address that to me and I would then pass that
21 round to the other members.
22 LORD SAVILLE: Does it follow from that that you really are
23 not able to help us as to whether or not any of these
24 Army photographs were actually sent to the Inquiry?
25 A. I am afraid that is the case, yes, sir.
1 LORD SAVILLE: You do not know?
2 A. I do not know.
3 LORD SAVILLE: As far as you are concerned, it is at least
4 possible there never were?
5 A. Of course.
6 MR MACDONALD: Even if you were not responsible for the
7 custody of these photographs, you surely must have been
8 involved in the decision whether or not to provide this
9 material?
10 A. No, sir.
11 Q. To the Tribunal?
12 A. No, sir.
13 Q. But the request must have come from the Tribunal for any
14 relevant material?
15 A. Of course they did, yes.
16 Q. And those requests would have been addressed to you?
17 A. Yes, in most cases.
18 Q. So you would have answered them?
19 A. No, I would have handed over to the person that
20 I considered responsible with a request to deal with it.
21 Q. Do you know anything about the cataloguing or copying of
22 the photographs?
23 A. No.
24 Q. Or whether that was done at all?
25 A. I was an officer from the Ministry of Defence, I was not
1 a member of the headquarters staff. All these matters
2 were matters which would be dealt with in the normal
3 way, by the internal staff procedure.
4 Q. Do you know how many sets of photographs were made
5 available?
6 A. Well, I know that I reported that 15 copies of the five
7 volumes, which would have included a number of
8 photographs, were submitted to the Tribunal.
9 Q. Can we take it from all this that you cannot help the
10 Tribunal at all about why all these photographs may have
11 disappeared without trace?
12 A. I am very sorry, I really have made a great deal of
13 effort to try and reconstruct that and I have not been
14 able to come up with anything that would help you, and
15 I apologise.
16 Q. In relation to the cine film, you knew that had been
17 taken at the height of the engagement, apparently?
18 A. I believe that was shown.
19 Q. We know a cine film was shown and you have been asked
20 about this memo, which I understand indicates it was
21 taken to the UK for security processing. I will not
22 take you over that ground again. Can I ask you this:
23 the DPS is the person who had the cine film and who took
24 it back for the security processing, whatever that may
25 be, but you were with him that day, were you not?
1 A. I was with him when he flew out, not when he flew back.
2 Q. When you flew back?
3 A. Because I stayed at Lisburn, I was then there for
4 a number of weeks.
5 Q. Your voice is dropping and I am not hearing everything
6 you say?
7 A. I flew with General INQ2144 on 2nd February and
8 accompanied him to the meeting that took place on that
9 afternoon at the headquarters at Lisburn and he then
10 disappeared and I think his statement says he then saw
11 the CLF or maybe the GOC, but I did not see him again
12 after that.
13 Q. And you did not have any conversation with him about
14 this cine film and how he came to have it?
15 A. No, sir.
16 LORD SAVILLE: I think we will take another break,
17 Mr MacDonald.
18 (3.50 pm)
19 (A short break)
20 (3.55 pm)
21 MR MACDONALD: I suggested to Colonel Overbury he may have
22 taken the statement from the Brigade Major; in fact, the
23 statement was taken by Sir Basil Hall and
24 Colonel Overbury does not appear to have been there
25 during that.
1 Can I ask you, Colonel, whether you asked anyone why
2 this cine film was so short?
3 A. No, sir.
4 Q. And why it did not appear to show the events at the
5 height of the engagement at all?
6 A. No.
7 Q. You do not have any recollection of Mr Gibbens or senior
8 Counsel for the Army raising any query about the film?
9 A. I am afraid not.
10 Q. In relation to your summary of events at CO1.112.
11 Mr Clarke asked you about one aspect of this and the
12 source of the suggestion that the whole of the 1 Para
13 operation was to be launched. There are various other
14 matters I was going to take you through, to ask you what
15 the source of them was. I am wondering, just to
16 short-circuit this, whether you can now remember what
17 the source was for various suggestions that appear in
18 this document?
19 A. This document was prepared very quickly, between the 3rd
20 and 5th February, after I arrived, and I think that
21 already a start had been made on it and it is
22 a collation of documents that were available in the
23 headquarters that were relevant.
24 I did not actually have a great deal to do with the
25 actual, as far as I remember, collection of these
1 documents. I would not have known where to go or what
2 to get, because I was totally new to that, but it was
3 done in order to be able to let the Ministry of Defence
4 and other senior people know what was available.
5 Q. I will not then take you through it in any detail.
6 There is one matter in the text I want to ask you about
7 at CO1.115. I do not suppose you can remember anything
8 about the reliable and detailed intelligence reports
9 that are referred to in paragraph 12?
10 A. I had nothing to do with intelligence while I was there.
11 Q. Do you know why they would not have been appended in any
12 form or explained further?
13 A. No, sir.
14 Q. CO1.129. In the schedule of annexes, there is no
15 reference there to Army photographs; do you know why
16 that is?
17 A. No, sir.
18 Q. Can I ask you now about the tape that Mr Porter
19 provided, or sought to provide to the Tribunal. Do you
20 remember that there was a local amateur radio enthusiast
21 who recorded radio transmissions?
22 A. I heard about it.
23 Q. He has given evidence to the Tribunal that he attended
24 a meeting at which he was discouraged, to put it in
25 neutral terms, from producing his tape-recorded
1 evidence. Did you attend that meeting?
2 A. No, sir.
3 Q. Were you present at any discussion about the import of
4 his evidence? No.
5 Mr David Mills has given evidence about meeting
6 socially with you and Mr Wallace, you are familiar with
7 that; are you not?
8 A. Yes, sir.
9 Q. And his recollection is that you regarded the Army case
10 as a charade?
11 A. That is not true.
12 Q. Whether or not you said that to him, did you in fact
13 regard the Army case as largely a charade?
14 A. Certainly not.
15 Q. Did you feel, as Mr Smith, the Secretary to the Tribunal
16 seems to have felt, that Brigadier McClellan had covered
17 up for his subordinates?
18 A. No, sir.
19 Q. Finally, Colonel, could I ask you about your statement
20 to this Inquiry; is there any reason why it took you so
21 long to produce your statement to the Inquiry? It seems
22 to have been promised in June 2000; it was not made
23 available until November last year; do you know why that
24 was?
25 A. It was a very long and protracted business. I am
1 actually quite a busy man and there had to be meetings
2 with Eversheds; there had to be collation of documents
3 and it took all that time. I am -- if I am to blame for
4 any of it, I am sorry.
5 Q. I have no further questions, thank you very much,
6 Colonel.
7 Questioned by MR KENNEDY
8 MR KENNEDY: Two very short questions, sir. Colonel, my
9 name is Kennedy and I represent two of the injured
10 parties. Could I have document CO1.83.
11 While that is coming up, Colonel, in your statement
12 at paragraph 21 you talk about the team responsible for
13 gathering evidence and you refer to the assistance of an
14 RUC advisor, whose name you could not recall.
15 Could I show you, in this document, down the
16 left-hand column, RUC advisor Superintendent Cordner; is
17 that the man that in fact whose name you could not
18 recall?
19 A. I do not know, sir.
20 Q. Did you never meet him?
21 A. I do not think I ever met him.
22 Q. Did you ever any dealings with the information that was
23 supplied by the RUC?
24 A. No, sir.
25 Q. Could I have JM38.19. Colonel, this is a statement from
1 a Detective Inspector McNeill, who in fact did collect
2 statements made by soldiers. If you look at paragraph 8
3 and if we could enlarge that for you, and I will take
4 you down through that at the same time:
5 "In the days following 30th January 1972, the Army
6 co-operated in the supply of information and statements
7 but this ceased and I was only supplied with a series of
8 initial statements from the soldiers who actually fired
9 weapons. These statements were very brief and
10 I prepared a schedule based on them for our own
11 information and to try and identify the killed and
12 wounded with a particular soldier.
13 "In following the evidence given by the soldiers to
14 the Tribunal, I discovered that the letters allocated to
15 the soldiers' statements had been rearranged and they
16 did not correspond. I have asked the SIB to supply me
17 with a copy of the correctly lettered statements
18 submitted to the Tribunal and which contain more
19 detail."
20 This statement was made in March 1973:
21 "To date, I have not received these statements. In
22 some cases the evidence given by the soldiers did not
23 tie up with the original statements, i.e. in some cases
24 the actual number of rounds fired."
25 What I want to ask you about: do you know anything
1 about the request by the RUC for those statements?
2 A. No, sir.
3 Q. And why they did not get them; you cannot answer, thank
4 you.
5 LORD SAVILLE: Who do you think would be likely to be
6 involved in dealing with such a request from the RUC?
7 A. I would imagine --
8 LORD SAVILLE: It would not be you, as I gather your
9 evidence.
10 A. It would have to have been someone on the staff. I do
11 not know who had the responsibility for relations with
12 the RUC and that was an operational matter and I have no
13 knowledge of it.
14 MR KENNEDY: I meant March 1972, that was when this
15 statement was made, not March 1973.
16 Questioned by MS McDERMOTT
17 MS McDERMOTT: Colonel Overbury, I represent the family of
18 the late Patrick Doherty. I have just a few questions
19 to ask you about F.
20 You said earlier on in your evidence -- for
21 a reference point, it can be found at page 116, line
22 4 -- that you took statements from the Artillery
23 Regiment because there was concern as to how there were
24 discrepancies which made it difficult to determine how
25 the three men were shot at the Rossville Street
1 barricade.
2 Do you recall that there was also the concern about
3 bodies to the south of block 2 of Rossville Flats being
4 unaccounted for, as it were?
5 A. I have a slight recollection of that, yes, ma'am. I am
6 not sure that I am aware of the details.
7 Q. Do you recall the soldiers from the Artillery Regiment,
8 whom you interviewed on 16th February, telling you about
9 seeing a paratrooper kneeling down at the corner of
10 Glenfada Park and firing at a man and then their
11 seeing -- they described it in slightly different ways,
12 but their seeing a body lying by some trees near Joseph
13 Place?
14 A. Yes, ma'am.
15 Q. That was something else that was in your mind, was it
16 not, when you went to interview F on 19th February?
17 A. I think that is quite possible.
18 LORD SAVILLE: I thought I had covered that myself,
19 Ms McDermott, by asking Colonel Overbury a very similar
20 question about an hour and a half ago, as to whether
21 that fact was a cause of him calling in, or F being
22 brought in for further questioning.
23 MS McDERMOTT: I am so sorry I missed that. I thought the
24 questions had been confined to how the three men were
25 shot at the Rossville Street barricade. I apologise.
1 Was there ever in existence any note or record of
2 what passed between you and F on 19th February?
3 A. I do not think so, no.
4 Q. There certainly is not now?
5 A. I am not surprised. We did not make many file notes
6 because of the pressure of time. That was one of the
7 matters I commented on in my report, we should have had
8 a diary.
9 Q. Might B137 be put up on the screen, please. Do you
10 recognise that statement?
11 A. It is his statement to the Treasury Solicitor.
12 Q. Yes. Did you have that with you when you saw him on
13 19th February?
14 A. No, ma'am. I do not think this statement could have
15 been made before the 21st because they did not start to
16 take statements from the soldiers until the Tribunal had
17 started its hearings.
18 Q. Might D0399 be put up briefly, please. This is the
19 history that was attached to Dr Carson's autopsy report.
20 You will see about halfway down, this is the report of
21 course relating to Mr Doherty:
22 "He was believed to have been shot from behind when
23 crawling or crouching. A soldier claimed that he had
24 seen a crouching man firing a pistol from the position
25 at which this man's body was found. The soldier said
1 that he had fired as a man turned away."
2 You will take it from me for the moment that the
3 first time that the word "crouching" is mentioned is in
4 the statement which was made to the Treasury Solicitor.
5 F did not use the word "crouching" to you, did he?
6 A. Sorry, could you repeat that question?
7 Q. F did not use the word crouching to you?
8 A. If I did not record it, no, he did not.
9 Q. What you record is:
10 "I saw a man near the wall facing my direction who
11 turned as if to run."
12 But we have been told that the autopsy report was
13 sent out on 21st February, so that rather looks as if
14 the Treasury Solicitor must have interviewed F between
15 the 19th and 21st?
16 A. Well, I had no knowledge of that.
17 Q. After you had spoken to F, did you contact the Treasury
18 Solicitor and say "go and interview him now"?
19 A. No, his statement would have been included in volume 4
20 or volume 5 that was sent to the Treasury Solicitor at
21 the end of that week.
22 Q. Thank you.
23 Questioned by MR MANSFIELD
24 MR MANSFIELD: Colonel Overbury, I represent families who
25 were shot at at the barricade and also to the south of
1 the Rossville Flats.
2 When you arrived 2nd February to take up your
3 posting, your role may not have been well defined, but
4 one of the objects at that time must have been to
5 discover which soldiers had fired and in what
6 circumstances; do you agree?
7 A. Yes, sir.
8 Q. Because if you are going to proffer advice, you would
9 need to know exactly who it was who had fired a shot and
10 at whom?
11 A. The task of establishing that was -- that was for the
12 SIB.
13 Q. But you would want to know what had been established
14 before you arrived, would you not?
15 A. Yes, of course.
16 Q. These are fairly obvious questions and I am coming to
17 some documents that I want to ask you about.
18 I apologise, it is some time ago. I will put it in
19 a context: during the late evening of the 30th and the
20 early hours of 31st January, Colonel Tugwell had
21 appeared on a BBC programme and had statistically laid
22 out, as far as the Paratroop Regiment were concerned,
23 the number of shooting incidents in which they had been
24 involved: 25 as a whole, 10 of which did not result in
25 any fire from them, which leaves 15 incidents.
1 Were you aware of the broadcast?
2 A. No, sir, not at the time.
3 Q. Were you aware of the number of incidents being put out?
4 A. No, sir.
5 Q. I will come to a more detailed document. That was the
6 broadcast?
7 A. I was aware that there had been -- that Colonel Tugwell
8 had made that statement, but I did not know it until
9 after I had arrived in Ireland.
10 Q. It is once you arrived in Ireland, you realise that
11 Colonel Tugwell has said that?
12 A. Yes, sir.
13 Q. Were you also aware that Brigadier Tickell -- and
14 Colonel Tugwell has already given evidence and Brigadier
15 Tickell very shortly -- issued, for the benefit of the
16 press, various briefings and someone had compiled a list
17 of the 15 incidents; did you know that?
18 A. I cannot recall that, sir.
19 Q. I would like you to see, it comes in two places, but
20 I will do it so you can see them in context: CO1.109,
21 please. The next page -- can you see that adequately?
22 A. I have a hard copy of it, yes.
23 Q. If you look in your own copy, CO1.109 is the beginning
24 of a list of incidents with very explicit map
25 references. You will find it continues, attached to
1 your statement on CO1.111.
2 A. Yes, sir.
3 Q. There is another page in between, which relates not to
4 the Paratroop Regiment. If you add them up, I am asking
5 you to accept it for speed at this moment, there are in
6 fact 15 incidents there specified. The same 15
7 incidents are attached, again in your statement, so for
8 ease of reference, so that it is Major 236, you will
9 find at CO1.175. This is perhaps on screen not that
10 easy to read, but you can see it in the original. It is
11 the same 15, only numbered this time, starting with
12 "nailbomber" and ending with a "gunman with a rifle" at
13 the barricade; do you see that?
14 A. Yes, sir, I have a hard copy.
15 Q. That is two places in which it appears, both of which
16 are dated before you arrive, namely 31st January. Do
17 you follow?
18 A. Yes, sir.
19 Q. I appreciate you were not there when these were put out,
20 but as soon as you arrive, or soon after you arrive --
21 and almost certainly before you make your, as it were,
22 signed report on 5th February -- you would have seen
23 this list, would you not?
24 A. Not necessarily.
25 Q. Please would you think? We are trying to isolate which
1 soldiers did the shooting and in what circumstances.
2 This is the first and clear statement, certainly on
3 behalf of the Paratroop Regiment -- I am concentrating
4 on them for the moment -- as to the circumstances in
5 which people were shot at and killed, because the list
6 specifies that; do you follow?
7 A. Yes, sir.
8 Q. The reason I ask you to look at this carefully now --
9 I appreciate the lapse of timings -- what the document
10 does not disclose is which soldiers at these map
11 references are responsible for the incidents on the
12 list; do you follow?
13 A. Yes, sir.
14 Q. Did you ever discover that?
15 A. No, sir.
16 Q. Why not?
17 A. Because I do not think I -- unless this was attached to
18 the preliminary report, I do not recall ever having seen
19 it until it was supplied to me by Eversheds.
20 Q. This list is attached, not only to what you will see at
21 CO1.164, another document, dated the 31st, by the
22 Lieutenant Colonel on behalf of the Commander. You will
23 see it is attached to that document?
24 A. Yes.
25 Q. The other list was attached to Brigadier Tickell's
1 briefing on the same day?
2 A. Yes.
3 Q. So there are at least two examples of this document
4 available for those who are inquiring into who has done
5 what shooting; do you follow?
6 A. Yes.
7 Q. I suggest you must have seen this document at the time,
8 surely?
9 A. Well, I do not recall that.
10 Q. There is a further reason. Could we go back to CO1.175,
11 it is all on one page. This is Major 236's list. I can
12 deal with it relatively quickly, because you are saying
13 you have no memory. But the point I want to make to you
14 is: first of all, it would help to know who made out
15 this list, would it not?
16 A. I really cannot comment on that, I do not recall ever
17 seeing --
18 Q. It would help to know who compiled the list, would it
19 not?
20 A. I cannot really comment on that because I do not recall
21 this document.
22 Q. Looking at it now, do you follow?
23 A. Yes.
24 Q. Looking at it now, with an interest in who did what,
25 when, it would be of concern to know who made up the
1 list, would it not?
2 A. Of course.
3 Q. Secondly, the person who made out the list may not be
4 the person who had pulled the trigger, so it would be
5 important to know where that person who compiled the
6 list got the information from, would it not?
7 A. Yes.
8 Q. The exercise of comparing this list with RMP statements
9 that had been taken is presumably, therefore, not an
10 exercise you have ever done?
11 A. No, sir.
12 Q. Would it surprise you to learn that in fact the RMP
13 statements do not tally with this list; did you know
14 that?
15 A. No, sir.
16 Q. I am going to come straight to a particular example
17 because you were deputed to CF, were you not?
18 A. I beg your pardon.
19 Q. You were deputed to see Soldier F -- we have been over
20 the ground?
21 A. Yes.
22 Q. Just as an example, therefore, before you interviewed F,
23 did you have recourse to see all his previous
24 statements; presumably you did?
25 A. Yes, I think I did.
1 Q. On what you are saying, there was no, it seems, no
2 recollection of comparing what F said in his RMP
3 statement with what the Parachute Regiment were putting
4 out on 31st January?
5 A. I think that is correct.
6 Q. I am going to do one example, because it is late in the
7 day. Could we have the F statement again, please, which
8 starts at 121, but it is the top of 122?
9 LORD SAVILLE: Do, Mr Mansfield, but from what this witness
10 has said, this sounds rather more like a forensic point
11 than a point of question for the witness.
12 MR MANSFIELD: I want to bring him to F particularly.
13 LORD SAVILLE: I see that, yes.
14 MR MANSFIELD: There are many points I could make on the
15 list not dealing with F, but F is an example.
16 LORD SAVILLE: Yes.
17 MR MANSFIELD: If I may just highlight it, I will leave it
18 for another witness.
19 LORD SAVILLE: If you think we can get any assistance from
20 this witness, by all means continue. But it sounded to
21 me as though you were making a point which might be made
22 with other witnesses, but this witness says he does not
23 know about this list.
24 MR MANSFIELD: I appreciate. The problem we have is we do
25 not know who is. I appreciate he now says he has no
1 recollection of this.
2 LORD SAVILLE: Put the point by all means, then.
3 MR MANSFIELD: The top of 122, there is an incident there,
4 you have already had reference to it, where he claims in
5 the first statement, which is made on the 31st in the
6 early hours of the morning, that he shot, or there were
7 shots from a second floor of the flats and the third
8 window along and he fired three shots at the window and
9 he saw them strike the window.
10 That is a shooting incident involving a paratrooper;
11 is it not?
12 A. Yes, sir.
13 Q. It is not on the list of the 25 incidents, do you
14 follow, or the 15 that it had been whittled down to?
15 A. Yes, sir.
16 Q. Presumably, therefore, what you are saying is: when you
17 came to interview F, you did not have recourse to this
18 list to see whether what he was saying in his first
19 statement -- never mind what he was saying in his
20 subsequent -- married up with anything that had been
21 recorded by the Paratroop Regiment before you arrived?
22 A. Yes, I think that must be correct.
23 Q. I wonder why you did not do that?
24 A. Because I did not know about this document and the
25 relevance of it. The investigation was carried out by
1 the SIB. My responsibilities were to deal with the
2 actual statements that were being made for the purpose
3 of the Tribunal. I cannot give you any help on this
4 document.
5 Q. I will leave the list and the document. Can I come
6 to -- you have been asked some questions but because
7 both the families I represent are affected by what is on
8 this page, could we have 135 again. This is the
9 statement you took. You have agreed so far that one of
10 the reasons why you may have interviewed F is because
11 the four people you had to re-interview, or had to be
12 re-interviewed by you on 16th February, that is the
13 Light Aircraft Defence Regiment before, threw up points
14 that had to be covered; you feel that may be right?
15 A. Yes, sir.
16 Q. You have also said no record was kept of anything that
17 transpired between you and F?
18 A. Yes, sir, except this statement, of course.
19 Q. Except the statement. First of all, if you look at the
20 first sentence, can I ask you this: why was it that in
21 fact the particular statements to which he referred, as
22 well as the maps and photographs, were not itemised in
23 his statement?
24 A. Well, the statements were all being forwarded, and there
25 would be there, and they are numbered. There was no
1 need to do that.
2 Q. Do you follow there is a need? I will have to go back.
3 You signed a report which was produced collectively on
4 5th February. Can we have CO1.129, please. This is
5 a schedule of annexes attached to the report you signed
6 on the 5th. There are in fact A to Q.
7 Sir, I have made inquiries overnight and, with the
8 help, kindly, of Counsel for the Inquiry, we managed to
9 track down some. The photocopying runs out at the annex
10 H. J, K, L, M, N, O, P, Q are not photocopied in the
11 bundles and are not scanned at this stage.
12 Again, to save time, some of the annexes can be
13 found in other bundles, but three appear to be missing.
14 They are N, individual soldiers' statements; O, maps;
15 and Q, I am most concerned about, press cuttings.
16 For the moment they are missing, that is N and O,
17 the individual soldiers' statements and maps.
18 It is quite impossible now to know whether the
19 statements that were part of that annex were in fact the
20 RMP statements, or whether there were other statements
21 that gave rise to the list I have been asking you about;
22 do you follow?
23 A. Yes.
24 Q. Therefore, there was a need, when you interviewed F, to
25 ensure that whoever read F's statement, that you took on
1 the 19th, knew what it was that he claimed had triggered
2 his memory; do you follow?
3 A. No, sir.
4 Q. I will put it again: it is very important to know what
5 it is he has read, which statements he has read -- it is
6 very difficult to tell from this whether it is all the
7 previous dated statements, or only some of them?
8 A. Does he not say he has read his statements?
9 Q. Yes, which ones?
10 A. The statements that are in the hands of the Tribunal
11 today.
12 Q. All of them?
13 A. Yes, sir.
14 Q. How do you know?
15 A. Because he said so.
16 Q. He does not say so. "I have read my previous
17 statements," but we do not know which previous ones he
18 read; do you follow?
19 A. I can assure you, sir, he would have read the statements
20 I had in my possession and put to him.
21 Q. But you do not now know which statements you had in your
22 possession?
23 A. No, I cannot identify them today, no, but I am certain
24 that they would have been the statements that are now in
25 the possession of the Tribunal.
1 Q. Did you have the one that is timed at 2.10 on
2 31st January, that deals with a denim jacket and
3 trousers and so on; it is at 126?
4 A. I assume I did, I cannot say today exactly what they
5 were because, as you say, I did not take a note.
6 Q. What I want to ask is: why you did not ensure that this
7 statement clearly indicated what it was he was looking
8 at, even before you get to the content of what he
9 actually says happened; do you follow?
10 A. No, sir.
11 Q. You do not. What maps did he look at, then?
12 A. He would have looked -- the map he would have looked at
13 was the map on which there would be the shot plot.
14 Q. Which one is that? It says "maps", actually, so how
15 many maps did he look at?
16 A. I have no idea, sir, I cannot remember now.
17 Q. Why did you not ensure at the beginning of this
18 statement that the maps you are talking about are
19 identified?
20 A. I am sorry, sir, I did not.
21 Q. You did understand the significance as a lawyer of
22 ensuring that those who read the statements know what
23 they are based on?
24 A. Yes, sir.
25 Q. And the photographs of the area, I think your assumption
1 is they are the aerial ones; is that right?
2 A. Yes, sir.
3 Q. Going to the content of it, to which you have been three
4 times before, so I am certainly not going to repeat it:
5 did you ask him any questions during the taking of the
6 statement about how it was that he came to remember
7 these two precise occasions, one of which is fairly
8 graphic, dropping to one knee and taking aim and so on,
9 this is in Joseph Place, the south of the
10 Rossville Flats. Did you ask him how he came to
11 remember that?
12 A. I do not remember specific things that I said to the
13 soldier.
14 Q. Why did you not keep a record of what was said?
15 A. Because there was at that time a degree of urgency, and
16 it is perfectly clear that with hindsight one should
17 have done these things, but with all the rush that was
18 going on a lot of things were not done. And I did
19 comment on this eventually in the report, that these
20 exercises should be better organised in future. And to
21 the extent that some of this is my fault, well, we were
22 very busy is the only thing I can plead in mitigation.
23 Q. Of course, if it is right that at least what was in your
24 mind before you saw this was the two instances, about
25 which some explanation was required -- somebody being
1 shot at the barricade and somebody being shot at
2 Joseph Place -- keeping a record of what was put to him
3 before of that is important, is it not?
4 A. Well, the way it was done is that the soldier was
5 interviewed and he was asked what he had to say. It was
6 regarded as -- I regarded it as high risk to lead the
7 soldier too far, because what the soldier wanted to say,
8 the soldier would have to say.
9 Q. But in fact he comes up, as you can see, with what he
10 says is an object in his hand, an automatic pistol, of
11 the person that he shot.
12 A. I think he said he thought it was an automatic pistol.
13 Q. Plainly, in order to make it a lawful killing, he would
14 at least have to describe that he was following the
15 Yellow Card; would he not?
16 A. Yes, of course.
17 Q. This statement, were you writing it down in longhand as
18 he was speaking?
19 A. I think I did -- I certainly had no facilities to type
20 statements, so I must have written it in longhand.
21 Q. As he was speaking?
22 A. Yes.
23 Q. Was anyone else present besides you?
24 A. I do not know; I doubt it.
25 Q. At the end of this particular occasion, when you had got
1 this statement, in which clearly he was admitting to
2 being somebody who had killed someone at the barricade
3 and killed somebody to the south of Rossville Flats, did
4 you indicate to SIB, "Bingo, we have found the person
5 who at least satisfies the Light Aircraft Defence
6 statements"?
7 A. I do not recall.
8 Questioned by LORD GIFFORD
9 LORD GIFFORD: I am Anthony Gifford, I represent the family
10 of James Wray.
11 You have told us about the interviews on
12 15th February with the four soldiers from 22LAD. With
13 the help of your junior Counsel, Mr Moss, we have been
14 able to identify those soldiers as Widgery numbers 15,
15 40, 134 and 30. You, I think, remember them by an
16 earlier classification: 231 to 234.
17 A. Yes, sir.
18 Q. We see those numbers in their statements.
19 I want to go to them. Can we start with number 15
20 at B1413. If we look at the beginning of the statement
21 first, it is a soldier who was observing from the shirt
22 factory in Sackville Street?
23 A. Yes, sir.
24 Q. And if we go now to 1414 and highlight the last
25 paragraph:
1 "Suddenly all the troops in the area seemed to dive
2 for cover and take up fire positions. One soldier
3 I noticed was observing two men mind a rubble barricade
4 that stretched from Block 1, Rossville flats, across
5 Rosville Street to Glenfada Park. The soldier was
6 positioned on the corner of Block 1, Rossville Flats.
7 The men were continually throwing missiles in his
8 direction. The two men suddenly jumped up and started
9 running towards an open door halfway down block No. 1.
10 The rear man stopped suddenly and turned to look at the
11 soldier, as the soldier brought his SLR into the aim
12 position. The man turned and started running faster
13 towards the open door. I then saw the soldier fire one
14 round in the direction of the fleeing man. The man
15 dropped to the ground. He fell in the doorway; I then
16 saw hands come from the doorway and drag the body in."
17 On reading that statement, which was the statement
18 made on 3rd February by this soldier, it would have
19 struck you that what he was describing was something
20 which sounded like or seemed like an illegal shooting of
21 a man running away who had been throwing stones?
22 A. Well, I do not think that that was a consideration that
23 I had to take. I had to take a view what the soldiers
24 as said. As to whether it was legal or not, that was
25 not my function. I could not advise on that because
1 that was going to the Lord Chief Justice.
2 Q. Certainly on the basis of that statement, would it not
3 have occurred to you that this was a statement which
4 may, at least, be evidence of an illegal shooting,
5 shooting against the Yellow Card?
6 A. On the basis, no, I do not think I can say that, because
7 I was only concerned with getting facts, and the
8 decisions as to what judgment should be made of those
9 facts was not mine to do.
10 These soldiers have not been charged and they were
11 being required to recount what they saw and what they
12 did and that was my function. It was not my function to
13 determine whether or not what they were saying was
14 illegal.
15 Q. Let us now go to the statement which you took on
16 page 1422.
17 A. I cannot read this, sir.
18 Q. Can we highlight the lines in the middle. Your name is
19 at the bottom of this one, 16th February:
20 "Further to my statement on 3rd February 1972.
21 "Looking at a photograph of the area, I now say that
22 the man I saw shot was running towards an open door at
23 the far end of block 1 and not halfway down as I said
24 earlier."
25 That is clearly the point of detail on the
1 geography:
2 "When the man turned he stopped and faced the
3 soldier I referred to. He then raised his right arm to
4 shoulder height pointing towards the soldier. I could
5 not see at that distance whether he had anything in his
6 hand. I pointed out this man to 023, who was at another
7 window in the same room."
8 The new element of importance in that statement is
9 that he had raised his right arm to his shoulder?
10 A. Yes.
11 Q. And so that you know the comment I may make, that the
12 statement made to you allows for the possibility of
13 justifying the shooting, if he had had something in that
14 hand?
15 A. That is certainly possible.
16 Q. Had you pointed out to Soldier 15 that his first
17 statement was potentially evidence of an illegal
18 shooting?
19 A. I do not recall doing that.
20 Q. Can you explain how he comes to add this particular
21 detail when being spoken to by you?
22 A. That is what he said and that is what I wrote down.
23 LORD SAVILLE: Can you assist us as to why you spoke to him
24 at all?
25 A. He is one of the four soldiers that I think I had been
1 asked to see by the SIB as third party witnesses to the
2 incidents that occurred at the Rossville Street
3 barricade.
4 LORD SAVILLE: One of the occasions, for that or similar
5 reasons, they referred statements to you.
6 A. These were the four soldiers, independent soldiers that
7 I interviewed, all on the same day, at Lisburn and the
8 only other two interviews I had were with Soldier A and
9 Soldier F.
10 LORD GIFFORD: Let us pass to Soldier 040. Can we look
11 first at page B1652.
12 This is his statement, dated 2nd February, which you
13 would have had available to you?
14 A. Yes, sir.
15 Q. If we go over the page to 1653 -- perhaps I should make
16 it plain that the first lines of -- this is a man who
17 was observing in a derelict building in Upper Magazine
18 Street, with a view over the back of the
19 Rossville Flats; you remember?
20 A. Yes, sir.
21 Q. Going to 1653, and highlighting the first seven lines,
22 he said:
23 "The other members of the Parachute Regiment took up
24 positions on the corner where the arrests had taken
25 place and one of them, who adopted a kneeling position,
1 fired a shot from his SLR along the front of number 2
2 Rossville Flats in my direction. I saw a man, who was
3 standing with his back to me waving his arms, suddenly
4 leap in the air and land on his back about 3 to 6 feet
5 away from where he had been standing, in my direction.
6 About 2 minutes later a priest approached him ..."
7 Once again, reading that, did it occur to you that
8 this was evidence of a man being shot while he was
9 waving his arms, for apparently no reason?
10 A. It was a statement that was made and, as I have said, we
11 were not -- the soldiers had not been charged. These
12 statements were made for the purposes of subsequent
13 investigation. That one was made shortly after the
14 incidents and these statements were handed over, because
15 that was what the Tribunal of Inquiry was all about.
16 Q. As an experienced prosecutor, did it occur to you that
17 this was evidence of an illegal shooting?
18 A. I was not in a prosecutorial function at that stage.
19 Q. Did it occur to you that this was evidence of an illegal
20 shooting?
21 A. It was not for me to make these judgments.
22 Q. Which might be damaging to the Army's case?
23 A. It might be damaging to the Army's case, but it was
24 going before the Tribunal, and that was that, and that
25 was my duty, to ensure that it did.
1 Q. Let us look to the statement that you took at page
2 B1656. Can we highlight the second paragraph from the
3 end, from the words:
4 "He was pointing his rifle ..."
5 The following page, it is your statement,
6 16th February:
7 "He was pointing his rifle in my direction.
8 I glanced down below along the line of the paratrooper's
9 sight and saw a man who was facing the rifleman and
10 holding his arms above his shoulders with his fists
11 clenched. I could not say whether he was holding
12 anything. I heard the paratrooper fire his rifle and
13 I saw the man fall backwards. He fell by the trees
14 between the end of Joseph Place and the end of
15 Rossville Flats nearest to me ... a priest came ..."
16 This man, instead of waving his arms, had his fist
17 clenched and something might be in them. Had you
18 pointed out to this soldier that his first statement was
19 evidence of an illegal shooting?
20 A. I certainly would not have done that, no.
21 Q. And he might want to reflect on it?
22 A. No, sir.
23 Q. Can you help how he happened to point out this
24 particular detail to you, of his fist being clenched?
25 A. No, sir.
1 Q. Can we go, please, to the third one, number 134, B1822.
2 The first lines show, take it from me again, that this
3 is the statement of this soldier, 22nd LAD,
4 3rd February 1972?
5 A. Which number is this?
6 Q. 134. You might remember him as 234?
7 A. Yes, sir.
8 Q. The first lines show that he too was in an attic in
9 Magazine Street, with a view of the south side of the
10 Rossville Flats?
11 A. Yes, sir.
12 Q. If we turn to 1823, and highlight the middle portion,
13 from about six lines down:
14 "The people at Fox's Corner immediately dispersed,
15 as well as those in Rossville Street. They ran in
16 between the flats and the smallholding to my left.
17 I then saw a male civilian come trotting across
18 Glenfada Park towards the flats with a paratrooper
19 behind him. The paratrooper then knelt down behind
20 a lamppost and fired one round from his SLR at the man,
21 who then fell to the ground."
22 He says he heard more shots, et cetera.
23 That was plainly, was it not, evidence of a man
24 being shot as he was trotting away and fired on without
25 cause by a paratrooper?
1 A. That is what the statement says, yes.
2 Q. In each of these three cases we have seen that the
3 statements appear to show innocent people being shot for
4 no reason. Is that why you were being asked to
5 interview them?
6 A. I do not recall why I was asked to interview them.
7 I had always the impression that the reason why I was
8 called to re-interview them was in order to make sure
9 that we could get as much information as possible about
10 all these killings that took place and to see if we
11 could put something together that was more consistent.
12 Q. Was it to try and put a spin on some evidence which was
13 otherwise potentially damaging to the Army?
14 A. No, sir.
15 Q. Let us see how 134 fares in your hands. Page B1826.
16 Could we have from, "When I first saw ..." about halfway
17 down the page:
18 "When I first saw the man in Glenfada Park, not
19 Columbcille Court as I said earlier, he was not running
20 fast, he was trotting. I did not at that time see
21 anyone behind him. I saw him cross Rossville Street.
22 I then looked back to Glenfada Park and saw
23 a paratrooper come into sight from behind the
24 Glenfada Park flats. I then glanced towards
25 Rossville Street and when I looked back the paratrooper
1 was kneeling in the aim position, pointing his rifle in
2 my direction. I then looked down as I heard the sound
3 of his rifle firing a single shot and saw a man sprawled
4 on the ground between two trees between Rossville Flats
5 and Joseph Place. I did not see the man fall, but he
6 appeared to be the same man that I saw trotting across
7 Rossville Street."
8 A. Yes, sir.
9 Q. It is quite obvious, is it not, Colonel, that the
10 soldier in that statement is raising a possibility that
11 the man that he saw trotting may not be the same as the
12 man who fell on the ground?
13 A. I am sorry, I did not quite follow you.
14 Q. Do you not, Colonel? You see, he says, for some reason,
15 on the fourth line:
16 "I did not at that time see anyone behind him.
17 I saw him cross Rossville Street. I then looked back to
18 Glenfada Park. I saw a paratrooper. I then glanced
19 towards Rossville Street and when I looked back the
20 paratrooper was kneeling in the aim position ... I then
21 looked down as I heard the sound of his rifle firing
22 a single shot and saw a man sprawled on the ground ...
23 I did not see the man fall, but he appeared to be the
24 same man."
25 A. Yes, sir.
1 Q. Was it not clear to you that the soldier was saying that
2 although he thought it was the same man as the innocent
3 man trotting, it may have been someone different?
4 A. No, sir.
5 Q. You do not think so?
6 A. No, sir.
7 Q. Had you pointed out to this soldier, 134, that his first
8 statement had been apparently evidence of a completely
9 innocent man being shot?
10 A. I do not recall, sir, but I doubt it.
11 Q. You doubt it, do you?
12 A. Yes, sir.
13 Q. There seems to be a common thread between these three
14 statements. Each of them give evidence of an illegal
15 shooting and each of them, in your hands, modify their
16 accounts quite substantially?
17 A. That is what I did and that is what I recorded.
18 MR ELIAS: Sir, I hesitate to interrupt, but as a matter of
19 fairness, if my learned friend was putting an allegation
20 that he plainly is putting, that he might have referred
21 this witness to a third statement made by Soldier 134,
22 not made to this witness, paragraph 8 on page B1830, in
23 which the soldier concerned gives an explanation as to
24 why he altered the terms of his statement. As a matter
25 of fairness, that might have been put.
1 LORD SAVILLE: Mr Elias, I was not treating this as an
2 allegation against Colonel Overbury. I think it is fair
3 to ask Colonel Overbury if he has any explanation for
4 the change in the statement.
5 I think you are also right that if there is further
6 material that may assist in that regard, either you or
7 Lord Gifford should perhaps draw it to the attention of
8 the witness.
9 MR ELIAS: Since the witness is being asked to comment on
10 it, it might be fair if he was shown page 1830 and
11 paragraph 8 in particular, but I leave it to my learned
12 friend.
13 LORD GIFFORD: I was not going to show it because there is
14 a later statement taken on 9th March. What I am dealing
15 with is the events of 16th February. Otherwise we will
16 prolong things a lot. We could go to the Widgery
17 evidence of some of these witnesses too, and be held up
18 ad infinitum.
19 May I also say, sir, as I think you have been told,
20 had it not been for the fact these 22LAD soldiers were
21 referred for the first time this morning, I would
22 certainly have given notice of the line of questioning
23 that I am embarking on, because I do accept as a matter
24 of fairness that these are points which ideally should
25 have been put into notice, but we just had not, from the
1 statement --
2 LORD SAVILLE: We have now dealt with it. I understand
3 Colonel Overbury's evidence is that -- he certainly does
4 not begin to accept that he may have suggested to these
5 soldiers that it was a good idea to add some further
6 detail to what they said before. Can you take it any
7 further?
8 LORD GIFFORD: I do not intend to.
9 May I, for completeness, because I do not want to be
10 misleading, go on to the fourth statement, Soldier
11 Widgery 030, at page 1590.
12 Take it from me, please, this was a 22LAD soldier on
13 the walls, close-by the other two, and on page 1591, we
14 need to start with the second paragraph:
15 "I then heard a burst of slow automatic fire of
16 a low velocity which in my opinion came from a Thompson
17 sub-machine-gun. 001 directed my attention to a 5-foot
18 high wooden fence ... I then heard another burst of
19 fire ... I saw muzzled flashes. I started to aim my SLR
20 at the gunman.
21 "Suddenly a soldier in combat kit appeared running
22 in from between the two blocks of Glenfada Park from the
23 right. He stopped and knelt down about four doors, 30
24 yards to the right of the gunman, on the same side of
25 the road. He aimed his SLR in the direction of the
1 gunman and fired three rounds. The gunman disappeared
2 and automatic fire from that position ceased."
3 Perhaps we had better have the next four lines:
4 "The soldier then turned and aimed his SLR in my
5 direction. I then heard a number of single low velocity
6 shots ... this was followed by one shot from the soldier
7 in Glenfada Park. I then glanced down and saw a body
8 below me. It was surrounded by about 20 people who were
9 shouting for a priest."
10 This clearly is a soldier describing the same events
11 as the last two, or some of the same events as the last
12 two we have heard, but giving evidence of a hostile
13 person or persons in the vicinity?
14 A. Yes, sir.
15 Q. He was the fourth person you re-interviewed. I will not
16 take you to it, because I do not think anything new came
17 out. It is on 1597, and the relevant part is the middle
18 seven lines:
19 "When I saw the soldier kneel and fire in the
20 direction of the machine-gun fire, he was in the open
21 space somewhere to the right of the last tree. He swung
22 round and aimed his rifle in my direction. I heard
23 a volley of low velocity single shots. I saw the
24 paratrooper fire one shot in the direction from which
25 the shots had come."
1 You have, in relation to the shooting south of the
2 flats, three LAD soldiers, one claiming to have seen a
3 gunman and two apparently claiming to have seen no
4 reason for the man to fall and it was clearly -- you
5 then interviewed F three days later.
6 Did you put to him the statements, or the content of
7 the statements, which you had gathered from these three
8 soldiers on the walls?
9 A. No, sir.
10 Q. Not at all?
11 A. No, sir.
12 Q. There is no reason known to you why Soldier F then gave
13 evidence in a statement about kneeling down and firing
14 a shot to the south of the flats?
15 A. That is what he said.
16 Q. That is what he said, with no prompting from you?
17 A. Certainly not.
18 LORD SAVILLE: Mr Elias, I think it might be helpful if we
19 could see that document to which you referred a moment
20 or two ago.
21 Questioned by MR ELIAS
22 MR ELIAS: B1830, please, a statement made to Mr Heritage on
23 9th March, paragraph 8, in which Soldier 134 indicates
24 why he has made the correction, as he puts it in his
25 statement, made between 3rd February and the correction
1 on 16th February:
2 "After making this statement I spoke to 040.
3 I realised that if, as 040 said, the man had turned back
4 with his hands up, I could not have seen him immediately
5 before he fell."
6 I will not take the Tribunal or witness to it now,
7 but that soldier in his statement to this Tribunal gives
8 an account which rather expands upon that, but is
9 essentially his account.
10 LORD SAVILLE: Thank you very much. Who remains to ask
11 questions?
12 MR ELIAS: Sir, I have about 10 minutes.
13 LORD SAVILLE: We will break for a few minutes, Mr Elias.
14 (4.50 pm)
15 (A short break)
16 (5.00 pm)
17 MR ELIAS: Colonel Overbury, four matters, two of them very
18 short. Would you look, please, at CO1.212. You were
19 asked by the Chairman I think a little earlier whose
20 responsibility it would have been to pass on
21 photographs, what I might call physical evidence to the
22 Tribunal.
23 A. Yes, sir.
24 Q. Do we see in the middle of that page, left-hand column,
25 APM, DAPM?
1 A. Yes, sir.
2 Q. Provision of evidence APM's responsibility, but the
3 deputy full-time assistant; it was their task, was it,
4 to provide evidence to the Tribunal, in what we might
5 call its hard form?
6 A. Yes, sir.
7 Q. Would you look, please, at a photograph with me,
8 EP29.12. You were asked a little while ago about aerial
9 photographs; do you see?
10 A. Yes, sir.
11 Q. That is a photograph, on the face of it an aerial
12 photograph, which was available to the Widgery Tribunal
13 and is an Army photograph; do you follow?
14 A. Yes, sir.
15 Q. Can you say whether you have ever seen that before?
16 A. No, sir.
17 Q. Do you know whether that is in fact an aerial photograph
18 or not?
19 A. Well, it has to be, there are no buildings high enough
20 to take photographs.
21 Q. If I tell you that in fact it is a still from the
22 heli-tele as we have been calling it, you would not have
23 known that, would you?
24 A. No.
25 Q. I leave that, please, and I want to come now to two
1 matters of chronology that relate to Soldier V and
2 Soldier F. Can I deal first of all with Soldier V and
3 ask you to look for a moment at the statement of
4 Mr Heritage, which we find at KH6.10, paragraphs 22 and
5 23.
6 A. Yes, sir.
7 Q. Mr Heritage said, in paragraph 22:
8 "I remember that during the course of my initial
9 discussions with Soldier V I invited him to tell me his
10 account of what had occurred on Bloody Sunday. Soon
11 after he began telling me his account, he replied to
12 a question I asked in a way that appeared to me would
13 incriminate him. I clearly recall this incident, as it
14 is the only occasion in my career when I have had to
15 consider the possibility of giving a warning to
16 a witness that his evidence might incriminate him."
17 You were shown earlier today the note that
18 Mr Heritage made on that document, which we will look at
19 again in a moment at KM6.14 and you were referred to the
20 fact that there was in fact no mention of a caution made
21 in the note that Mr Heritage made?
22 A. Yes, sir.
23 Q. He does appear to be there saying quite plainly that the
24 possibility of giving such a caution or warning to the
25 witness he recalls clearly. He goes on to say -- I am
1 simply setting the background, so you will see what it
2 is that has been said, before I ask you the question:
3 "I recall that Lieutenant Colonel Overbury and I had
4 a disagreement over whether or not a warning should be
5 given to Soldier V that he might incriminate himself.
6 In retrospect, I believe it was based on
7 a misunderstanding."
8 He goes on to indicate that the Army team were
9 acting on advice that a statement made in compliance
10 with military orders could not be used against its maker
11 in any subsequent proceedings:
12 "At the time, I do not believe that I was aware of
13 this."
14 It is right, is it, when you approached Mr Heritage
15 about the caution and conflict, your "problem" as it has
16 been put, Mr Heritage did not appear to understand the
17 position?
18 A. Yes, sir.
19 Q. If we look, please, at KH6.14, a document you have
20 already been referred to, "Major Bailey confirms," that
21 is, as we can see, dated 5th; do you follow?
22 A. Yes, sir.
23 Q. If we go on to the bottom of the page now, please, and
24 the next entry. It is not in fact dated in the copy
25 that has been scanned in, but my learned friend
1 Mr Clarke and his team have been good enough to go back
2 to the original copy which is in the Tribunal's hands
3 and we can see that now at B821.002. If we go to the
4 bottom that would again appear to be dated the same day,
5 the 5th?
6 A. Yes, sir.
7 Q. The 5th being a Sunday?
8 A. Yes, sir.
9 Q. So it does appear, does it not, having had the
10 discussion with Mr Gibbens, Colonel Overbury, he
11 proposed to order V to make a statement. Then there is
12 the misunderstanding or the dispute about whether he
13 should give the caution or not. You told the Tribunal
14 this morning that your recollection was of an
15 involvement of both Mr Stocker and Mr Gibbens?
16 A. Yes.
17 Q. And if we go now back a page in this bundle, KH6.13, to
18 that entry, the box at the bottom of the page, we can
19 clearly see -- it is now dated the 6th:
20 "Mr Stocker discussed with Mr Gibbens, statement to
21 be taken without further warning."
22 A. Yes, sir.
23 Q. It does appear, does it, after you had had the
24 discussion with Mr Heritage, which he notes on the 5th,
25 the matter was indeed still unresolved and it looks as
1 though it went back to be discussed by the Tribunal and
2 Army Counsel the following day?
3 A. Yes, sir.
4 Q. As you say, you took no part in the matter thereafter
5 because presumably the Major, you think, would have been
6 gone back to the statement-taking process?
7 A. Yes, sir.
8 Q. Your problem in any event was resolved; is that right?
9 A. Yes, sir.
10 Q. Finally, I want to turn to the statement that you took
11 from Soldier F. Can we, just to take a few minutes, but
12 can I begin, please, by taking you to your report,
13 CO1.005, paragraph 12. You reported in paragraph 12:
14 "Between 11th and 19th February 1972, the team
15 prepared volume IV of the statements of evidence,
16 consisting of the final statements of senior officers
17 and further statements from witnesses clarifying or
18 expanding on previous statements. An analysis of the
19 evidence was prepared and the shot plot was amended
20 after witnesses had been shown aerial photographs of the
21 area."
22 Would the shot plot have been something that was
23 physically produced by the SIB, obviously with the help
24 of the soldiers, indicating where they had fired?
25 A. The shot plot was produced, I think, in collaboration
1 with the SIB, the secretary of the team and I also think
2 that at some points I was involved in that because it
3 involved analysing the statements and trying to
4 ascertain what the trajectory was.
5 This was then going to be verified from the aerial
6 photographs.
7 Q. You have told us, particularly I think in answer to
8 Mr Mansfield, that the SIB were the investigators, not
9 you?
10 A. Of course.
11 Q. And you replied upon them to investigate?
12 A. Absolutely sir.
13 Q. If in the course of their investigation material was
14 thrown out which required a soldier to be seen either
15 for the first time or indeed again, that was a task that
16 might well fall to you?
17 A. If either I had been requested to do it or the
18 investigators considered in their judgment that
19 I should.
20 Q. In that paragraph 12 you seem to be indicating that the
21 shot plot had been amended after witnesses had been
22 shown aerial photographs of the area?
23 A. Yes, sir.
24 Q. I do not want to go over the back over the evidence you
25 have given as to that. It might be right to say they
1 found it, in most cases anyway, easier than working from
2 a plan?
3 A. I believe so, yes.
4 Q. I would like you to look, please, at Q7. We were asked
5 this morning -- Mr Clarke produced it and he invited our
6 attention to the date on the top of it, which on its
7 face is wrong, but it is 18th February?
8 A. Yes, sir.
9 Q. We were shown it this morning, there is no need to go
10 back to the date again, it is 18th February. You may
11 well have been misled by the 1971; it would appear,
12 therefore, to be 1972.
13 If we can have the whole of the plan and highlight
14 perhaps the central portion of it, it may be you still
15 cannot see it and if you cannot, perhaps it will not
16 matter, because we can look at the copy in its full
17 size. That shot plot, dated 18th February, if indeed it
18 does refer to 1972, does have on it two shots from F?
19 A. Yes.
20 Q. One to the barricade and one down in the gap between
21 Joseph Place and the Rossville Flats? (Marked with
22 arrows - CO1.280)
23 A. Yes.
24 Q. About which he was to relate to you in the statement
25 that you took on the 19th; do you follow?
1 A. Yes, sir.
2 Q. I wonder, sir, if that image could be saved for this
3 witness's evidence with the CO1 reference?
4 MR CLARKE: CO1.280.
5 MR ELIAS: We have all been misled, many many of us at
6 least, by the 1971 date, when it would appear to be
7 1972. Mr Clarke has produced it.
8 Can you assist the Tribunal in this regard: had it
9 been the case that SIB investigation had produced that
10 shot plan by 18th February, indicating that F had fired
11 two shots in the directions and from the positions shown
12 on that shot plan, would it have been at all surprising
13 had you been asked or instructed to interview F on the
14 19th February?
15 A. No, I would have expected that to have happened in the
16 light of the circumstances.
17 LORD SAVILLE: That assumes, does it, Mr Elias, that the SIB
18 had got this information from somewhere else?
19 MR ELIAS: Or from F. It assumes that the information had
20 come from someone. It is there on the shot plan and if
21 the date of the shot plan as amended is correct -- well,
22 it is there, I can put it no higher or lower than that
23 to this witness.
24 LORD SAVILLE: You do not have any other statement from F to
25 that effect or --
1 MR ELIAS: We do not. But had that information come to
2 hand, it would not have been surprising, would it, if
3 you had been asked to interview the witness?
4 A. No, sir.
5 Q. Do you in fact have any independent recollection of the
6 shot plan being in your possession at the time you
7 interviewed F?
8 A. No, sir.
9 LORD SAVILLE: Colonel Overbury, if the information had
10 indeed come from F, to enable the SIB to complete this
11 plan, would you have expected in the normal course of
12 things that SIB would have a statement to that effect
13 from F?
14 A. No, sir, because this was the cross-checking system and
15 I think in those circumstances they would have asked me
16 to take a statement, because it was new, substantial,
17 important evidence, where he had never said that before.
18 LORD SAVILLE: I do not think I am making myself clear.
19 This appears to indicate a shot and it, on the face of
20 it, appears to indicate one of F's shots.
21 A. Yes, sir.
22 LORD SAVILLE: Unless I have completely misunderstood
23 Mr Elias -- it is entirely possible, bearing in mind the
24 time of day -- this could be something prepared by the
25 SIB, with them having some information that F had fired
1 this particular shot.
2 A. Yes, sir.
3 LORD SAVILLE: If they had some such information that F had
4 fired this particular shot, if it was from F himself,
5 would one not have expected them to have some further
6 statement from F to the SIB to that effect; if not,
7 where would they have got it from?
8 A. Quite clearly the SIB, I believe, was, according to my
9 report -- were interviewing all the soldiers with the
10 photographs, the aerial photographs that they had
11 received, to compare them with the shot plans and if
12 they had seen F in the course of all that and F had
13 suddenly come up with these two additions, then the SIB
14 could have taken a further statement from him. But if
15 in their judgment they thought it would be better to be
16 referred to me, they would have done so and it would
17 appear that they did.
18 LORD SAVILLE: There might not have been a written statement
19 by F to the SIB.
20 A. It would have been verbal, and then they would have
21 said, "Hang on, we will refer that to the team".
22 MR ELIAS: What we do have, Colonel Overbury, are
23 photographs which appear to have been marked by, on
24 their face anyway, perhaps F, photographs, on the face
25 of them, therefore plotting the shots by F; is that how
1 you would have expected the SIB to operate?
2 A. Yes, sir.
3 Q. If we look at B167.023, I think we can just see, running
4 across the centre of that photograph, one arrow; do you
5 see?
6 A. Yes, sir.
7 Q. B167.024?
8 A. Yes, sir.
9 Q. Another single line?
10 A. Yes, sir.
11 LORD SAVILLE: Tell me, Mr Elias, we are confident, are we,
12 that these were prepared by the SIB?
13 MR ELIAS: We do not know. They are simply in what I might
14 call F's bundle.
15 LORD SAVILLE: We do not know when they were prepared
16 either; is that right?
17 MR ELIAS: No, we do not know, sir.
18 LORD SAVILLE: I thought you used some of your old
19 photographs in order to produce this sort of --
20 A. No, sir, the aerial photographs were taken by an Army
21 photographer when I flew up, we had the same lift and
22 they would have been handed over to the SIB, not to me.
23 LORD SAVILLE: Perhaps I have just misunderstood you, we can
24 look back on the transcript. Who do you think was
25 responsible for drawing the lines on the photograph.
1 A. I do not know, sir.
2 LORD SAVILLE: It was not you?
3 A. Well, I do not think that I would ever have done that,
4 I am not really qualified to do it. This is somewhat
5 precision stuff, but I do not think I would have wanted
6 to do that in any event --
7 LORD SAVILLE: I follow that, but you would not be able to
8 help us as to whether it was the SIB who did it or
9 somebody else.
10 A. No, sir.
11 LORD SAVILLE: Could it have been Counsel for the Army team?
12 A. I would not have thought so, so.
13 LORD SAVILLE: Could it have been Inquiry staff?
14 A. No, sir, these photographs were designed, if I recollect
15 correctly, they were designed in order to make it -- the
16 shot plan clearer and to correct any errors that were on
17 the shot plan by showing the soldiers -- this was the
18 SIB would be doing that -- showing each soldier the
19 photograph and relate it to the previous shot plot he
20 had done and ask him to verify and to check. So either
21 the soldier would have drawn or the SIB would have drawn
22 it, on that basis.
23 MR ELIAS: And having the photographs and that information,
24 as the Inquiry, as the investigation went on, so the
25 shot plot would be amended as necessary.
1 A. Of course, that was an on-going process.
2 Q. Thank you very much, I have no further questions.
3 Questioned by MR CLARKE
4 MR CLARKE: I only have two matters: do you have any
5 recollection now of having with you, when you took the
6 statement of F on the 19th February, either of the shot
7 plan with the two new F shots on it, and on the two
8 photographs with F's new shots marked on them?
9 A. No, sir.
10 Q. The last matter, I would like to see where we had got to
11 in relation to Army photographs: we know that you saw
12 Army photographs, not taken on the day, being the aerial
13 photographs which were produced and shown to the
14 Widgery Tribunal and photographs such as these upon
15 which shots were marked?
16 A. Yes, sir.
17 Q. We also know, because Mr Elias has just reminded us of
18 them, that in the EP series there are some still
19 photographs taken from the helicopter on the day, on the
20 day itself --
21 A. Yes.
22 Q. -- by the Army, showing the activities of soldiers and
23 showing vehicles on the ground. Apart from those
24 photographs, did you yourself actually see, so far as
25 you recall, any other Army photographs?
1 A. I really cannot now recall, sir, I am sorry.
2 Q. But you do recall, as I understand it, that you were
3 told by somebody that 1,000 copies of photographs had
4 been produced and handed over for the assistance of the
5 Tribunal and Counsel for the Army?
6 A. I am quite certain that I was told that, because I would
7 have asked it and I certainly would not have put it in
8 that report unless I had been told.
9 Q. Do you recall by whom you were told?
10 A. No, sir.
11 LORD SAVILLE: Do you recall by whom it is likely you would
12 have been told?
13 A. I would have gone to whoever was responsible for
14 handling the photographs and I would have found out or
15 at the time I would have known and I would have gone to
16 that source and asked the question in the same way that
17 I asked questions about all the other logistical matters
18 that I felt should be incorporated in the report.
19 MR CLARKE: It follows from your evidence, correct me if
20 I am wrong, that it is at least possible that you had
21 been told that a very large number of Army photographs
22 had been produced, the vast majority of which you
23 personally had not seen?
24 A. That is possible, sir.
25 Q. Thank you, those are all my questions.
1 LORD SAVILLE: I am sorry it has been such a long day,
2 Colonel Overbury; I understand you wanted to get away
3 tomorrow, it seems to us better to have a long day today
4 rather than to ask you to come back some later stage in
5 the future. Thank you very much for coming here to
6 assist the Tribunal.
7 (The witness withdrew)
8 LORD GIFFORD: Since we are ending the first two weeks in
9 London, may we on behalf of our team, and I am sure
10 others, pay tribute to those who have organised the
11 smooth transition and we recognise the hard work that
12 has been done by many who are not often seen, and
13 sometimes their voices are not heard.
14 LORD SAVILLE: That is extremely kind of you, Lord Gifford.
15 The Tribunal itself is highly appreciative. An immense
16 amount of very hard work has been done by those people
17 and I will, as I see them, thank them personally, on
18 behalf of all the lawyers present, including the
19 Tribunal itself.
20 Mr Clarke, a couple of matters you wanted to raise?
21 MR CLARKE: There are two matters. My learned friend
22 Mr Glasgow, in the course of asking questions for
23 Colonel Overbury, said, if I heard him right, that
24 a conclusion had been expressed about the discrepancies
25 in Soldier A's statement and I took the inflection of
1 his voice to suggest that the conclusion may have been
2 either inappropriate or unfair and the conclusion,
3 so-called, to which I think he was referring, is mine.
4 There are two matters that I want to say: in the
5 course of opening I drew attention to a number of
6 discrepancies or apparent discrepancies in the soldiers'
7 statements. I did not thereby intend any of what I said
8 to be conclusionary, but a statement of what appeared,
9 upon the face of the documents, to be discrepancies
10 between one statement and another.
11 The particular matter to which he drew attention --
12 could we have on the screen B3 -- was the fact that in
13 relation to Soldier A the map that is attached to his
14 statement shows a shot starting from apparently --
15 LORD SAVILLE: I am not sure it shows a shot, it shows the
16 position, does it not?
17 MR CLARKE: It shows the position of the firer apparently
18 outside, that is to say on the ground outside the
19 derelict building, and ending up to the position of the
20 person shot at being to the east side of the laundry
21 wasteground.
22 I note that in Counsel's Report No. 2 this is
23 expressly referred to as "an apparent discrepancy," but
24 the point my learned friend was making was that this was
25 inapposite because the point from which the firer
1 appeared to be shooting may well have been a few
2 millimetres to the left and not, therefore, accommodated
3 by the inaccuracy of the plan.
4 I think he must have forgotten, if we may have on
5 the screen, B1, that the statement that accompanied the
6 plan -- could we highlight the first three paragraphs of
7 Soldier A -- said:
8 "About 1530 hours on 30th January 1972 I was with
9 other soldiers who moved from St James Street towards
10 William Street, Londonderry. We moved across rooftops
11 at the west side of the Presbyterian Church. The
12 buildings are derelict and we moved unobserved on to
13 wasteground to the southwest of Tanners Row."
14 He then described what happened and the shots that
15 were fired. So the observations that were made in that
16 report were not based solely on the positioning of
17 a line on the map, but on the statement to which the map
18 was attached.
19 LORD SAVILLE: Yes, thank you very much.
20 MR GLASGOW: I do not know whether my friend was finished or
21 whether there was another point? In that case, I wholly
22 accept what he said and I am sorry. I hope I was not
23 sounding offensive. The reason I used the word
24 "conclusion" was that it appeared in Counsel's Report
25 No. 2; it specifically drew attention on that map and it
1 was that on which they had to take instructions.
2 LORD SAVILLE: Counsel's Report No. 2, as was explained at
3 the time -- this was a report produced way back in
4 1998 -- was a painstaking attempt to make a complete
5 comparison between statements and was not, I think it
6 was said at the outset and indeed as I think was
7 repeated by Mr Clarke in his opening statement, intended
8 to do more than to point out discrepancies, large,
9 small, indifferent without in any way suggesting that
10 the Tribunal had formed any view as to their importance.
11 MR GLASGOW: Sir, I will not prolong it. I hope I did not
12 suggest for one moment that the Tribunal had concluded
13 or expressed the view, I certainly did not intend to do
14 that, and most importantly, I certainly did not intend
15 to be offensive about my friend. I am very sorry if it
16 was taken in that way because I must have inelegantly
17 expressed it.
18 MR CLARKE: There are some changes, I am afraid, to the list
19 distributed to the interested parties earlier today.
20 The batting order for the week after next is: Monday,
21 14th October INQ2091, followed by Major General Tickell.
22 Tuesday, 15th October, Major General Dalzell-Payne and
23 then Wednesday and Thursday, 16th and 17th October,
24 Soldier 027.
25 LORD SAVILLE: We will come back to the Inquiry at 9.30,
1 please, on Monday week.
2 (5.30 pm)
3 (Proceedings adjourned until 9.30 am
4 on Monday, 14th October 2002)
5
6 COLONEL OVERBURY, sworn ................... 2
7 Questioned by MR CLARKE ................... 2
8 Questioned by MR GLASGOW .................. 77
9 Questioned by MS HORWOOD-SMART ............ 132
10 Questioned by MR MACDONALD ................ 133
11 Questioned by MR KENNEDY .................. 188
12 Questioned by MS McDERMOTT ................ 190
13 Questioned by MR MANSFIELD ................ 193
14 Questioned by LORD GIFFORD ................ 208
15 Questioned by MR ELIAS .................... 222
16 Questioned by MR CLARKE ................... 236
17
18
19
20
21
22
23
24
25