1 Tuesday, 8th June 2004
2 (9.40 am)
3 Submissions by MR KENNEDY
4 MR KENNEDY: Sir, can I first apologise for not being
5 present in the chamber yesterday when it came to my
6 turn, when I was called on.
7 LORD SAVILLE: It is kind of you to say so, do not worry
8 about that.
9 MR KENNEDY: If I could first refer the Tribunal to the
10 final response, chapter RM 7 of the Lawton submissions.
11 The reference is FR7,491. This is where it is
12 suggested, at P740, it becomes apparent that the body on
13 the ground is in fact lying face down.
14 "By looking at the outline of the legs, carefully
15 scrutiny reveals that the heels of the feet are
16 uppermost, not the toes. Furthermore, by that time
17 Father Daly reached Jack Duddy, he had been turned over
18 by someone other than Father Daly and there was not
19 a crowd around Jack Duddy."
20 Really what is suggested here, as is seen in the
21 photograph below, the heels up and toes down suggest
22 this is at an earlier stage than the stage where
23 Michael Bridge moved away from the body and towards the
24 soldiers.
25 Simply in response to that, we would suggest that
1 the evidence of Father Daly to the Widgery Tribunal,
2 which was contemporaneous, clarifies any doubt about
3 that. I refer to H5.18 and 19. H5.18, at the bottom of
4 that page Father Daly said:
5 "There were people lying, creeping, running and
6 screaming everywhere. I then looked back over the
7 courtyard and saw this young man earlier referred to."
8 That is Jack Duddy, sir.
9 The next page, K5.19:
10 "Lying on his back with his head towards me" he goes
11 on to describe the position about Jack Duddy and his
12 movements. If we move further down, we take it up:
13 "We both lay down beside the boy as I gave him the
14 last rites of my church. I felt he was dying. Just as
15 I finished giving him the last rites a young man dashed
16 out past where we were lying towards the soldiers.
17 I screamed at him to get back. He danced up and down in
18 front of the soldiers shouting something that I could
19 not understand. He had his hands held up at full
20 stretch over his head. I saw a soldier at the corner of
21 flats take aim and fire at this man. He staggered and
22 ran crazily around for a moment. I do not know where he
23 went then. I am certain that he was hit. I think his
24 name was Bridge."
25 We respectfully suggest that that clarifies any
1 doubt that might be raised in that final response.
2 If I could move down the page, then, back to
3 FR7.492, the bottom at R7M13:
4 "The Tribunal my also be concerned as to whether
5 P741 can depict a man in the moments after that he has
6 been struck by a~7.62 millimetre high velocity round
7 there is no sign of Mr Bridge's body reacting, nor of
8 his arms being either in the position they might be
9 expected to be if he had been gesticulating at the
10 soldiers or in the process of moving them down to grasp
11 his injured leg. His head is looking neither forward to
12 the soldiers, nor reacting to his body spinning as has
13 been said under the force of the bullet. His body is
14 not spinning as it was said to have done and as it must
15 have done under the force 69 bullet."
16 It would seem to suggest P741 does not depict
17 Michael Bridge at the time he was shot. We refute this
18 and suggest that Sam Gillespie's evidence about the
19 close proximity of the shots is indeed correct. We say
20 this was never canvassed before and there is no reason
21 for making this case now or before; there is no further
22 evidence about it and it should be rejected out of hand.
23 Those are two points I wanted to raise as
24 a preliminary matter, sir.
25 If I could move on to the issues which we have been
1 asked to address. The Tribunal should have now the
2 supplementary statement by Michael Bradley and
3 Michael Bridge. Michael Bridge's statement was finished
4 late yesterday afternoon and presented to the Inquiry.
5 I think all the interested parties have those
6 statements, sir, and I suppose, subject to your views,
7 it might be helpful to read through those statements in
8 their totality or, if there is something specific
9 arising I can deal with that after that.
10 LORD SAVILLE: I do not think it is necessary to read them
11 through in their entirety. If anyone has any points to
12 raise in relation to them, no doubt they will. We have
13 read them.
14 MR KENNEDY: The taped conversation with Paul Mahon, which
15 was taped by Michael Bradley --
16 LORD SAVILLE: Why?
17 MR KENNEDY: It was taped because he felt that there was
18 a complete break in trust between he and Paul Mahon, as
19 a result of the meeting that had occurred in Brendan
20 Kearney's office.
21 LORD SAVILLE: That is not explained in the statement
22 itself, is it?
23 MR KENNEDY: It is not explained, not per se.
24 LORD SAVILLE: Those are your instructions, are they?
25 MR KENNEDY: Those are my instructions, my Lord.
1 LORD SAVILLE: Were there any other relevant taped
2 conversations?
3 MR KENNEDY: No.
4 The position then in relation to the response to
5 counsel number 1 report, I would deal with briefly, sir,
6 as follows.
7 The counsel number 1's report was a helpful and
8 useful document, which really was a discussion document.
9 If I could refer you first to the ruling of the Tribunal
10 on 18th December 1998, in which the Tribunal set out
11 a ruling about the counsel number 1's report and
12 discussions relating to it.
13 It was a response that had previously been put in by
14 Madden & Finucane who were representing, at that time,
15 the wounded, including my clients. In paragraph 4 of
16 that judgment, if I could quote:
17 "The so-called preliminary conclusions are as the
18 report makes clear, of a wholly tentative kind, open to
19 revision or rejection in the light of other evidence,
20 including evidence, the credibility of the evidence put
21 before Lord Widgery. The whole point of counsel's
22 report as was made clear in the report itself is to
23 permit interested parties either to find fault in the
24 analysis or otherwise to contribute or add to it. The
25 report was published in accordance with the statement in
1 the intention of Tribunal to keep everyone informed of
2 what we were doing."
3 That was the spirit in fact in which we understood
4 counsel number 1's report to be submitted to the
5 parties. It was studied carefully and closely and it
6 did invite discussion. It was a discussion document and
7 the response was meant to be a discussion document in
8 response to it. The research had been done, as
9 Paul Mahon clearly states, by him. Although the -- we
10 have certainly carefully looked at all aspects of it, it
11 was decided that -- this is particularly important -- on
12 the instruction of Mr Mahon's, and his representation,
13 that our clients had seen it, discussed it with him and
14 approved of it. It was then agreed it should be
15 submitted in its totality without any tampering or
16 without any change, but it was submitted in that
17 context, that it was a discussion document open to
18 change and open to revision on further evidence.
19 The fact that that was clearly the understanding by
20 both parties, the Inquiry and ourselves, was reinforced
21 by the letter of the Inquiry on 12th January 2000 to my
22 instructing solicitors. It was from John Tate and he
23 said in that quite clearly:
24 "You are entitled to amend or clarify any part of
25 you response if you do not consider that it accurately
1 reflects your actual views of counsel's report number 1
2 and to submit to the Tribunal an amended response. You
3 are welcome to do that. No doubt you will explain why
4 the changes are necessary."
5 It is in light of that, again in the spirit of the
6 understanding of the earlier ruling that in fact the
7 addendum was issued.
8 LORD SAVILLE: Can we go back in time a bit?
9 MR KENNEDY: Yes.
10 LORD SAVILLE: The response was sent to the Inquiry
11 undercover of a letter from your instructing solicitors.
12 MR KENNEDY: That is correct.
13 LORD SAVILLE: Mr Mahon told us, and it was not challenged,
14 that that response had been approved by counsel and your
15 instructing solicitors.
16 MR KENNEDY: That is correct.
17 LORD SAVILLE: Are those two statements correct?
18 MR KENNEDY: They are. It was --
19 LORD SAVILLE: That leads to the next question, Mr Bradley
20 and Mr Bridge say or apparently say now they did not
21 agree.
22 MR KENNEDY: That is correct.
23 LORD SAVILLE: That is a fairly serious situation, is it
24 not? That the clients were not shown this document, or
25 what?
1 MR KENNEDY: It is, sir, I do not move away from that at
2 all. The impression, certainly both that Mr Kearney and
3 Mr Morgan QC got from Paul Mahon was that he had
4 discussed it with the clients. The clients say that in
5 fact he had not and they had not approved it. It is
6 a serious situation, but that is the position.
7 Clearly it was meant to be a discussion document.
8 Events are clear and obviously known to everybody since.
9 There was unfortunately a leak of the document,
10 a discussion document, which was misinterpreted and
11 misconceived and misaligned in a sense by the publicity
12 given to it in the press.
13 LORD SAVILLE: You say "leak," these documents were not
14 meant to be private.
15 MR KENNEDY: I accept that.
16 LORD SAVILLE: And were indeed published by the Inquiry
17 itself.
18 MR KENNEDY: That is right. They were not meant to be
19 interpreted as submissions, they were purely discussion
20 documents, open to change, open to amendment, depending
21 on evidence and circumstances that arose subsequently,
22 but the context in which they seem to have been
23 published was they were, more by way of submission, and
24 that was not the case. That is why the amendments would
25 have been dealt with in any event, but that is why they
1 did happen in the way that they did.
2 There is further correspondence between my
3 instructing solicitors and the Inquiry dealing with it.
4 The first is the letter of 10th February 2004, which the
5 Inquiry will have. In that we reject entirely the
6 reluctance on the part of civilians to give full
7 accounts of what they knew about Bloody Sunday,
8 particularly the families and the wounded had been in
9 the vanguard of those who sought out and encouraged
10 relevant witnesses to co-operate with the Tribunal. By
11 way of example we refer to the statement made by
12 Arthur Harvey QC on behalf of the families and wounded
13 on Day 77 at pages 87 to 89 and the press coverage
14 resulting from that.
15 LORD SAVILLE: Again, I am sorry, could we go back in time
16 a little bit. Go back to the addendum. That was
17 produced, what, in February, was it?
18 MR KENNEDY: Yes, February 2000.
19 LORD SAVILLE: Speaking for myself, I am rather puzzled as
20 to how it can be said that the so-called new material
21 negates the suggestion made in the original response
22 that OIRA was the one who fired before soldiers A and B.
23 MR KENNEDY: The supposition was based on Mr Mahon's
24 interpretation of the Capper tapes. It was our
25 understanding -- not that that was accurate or correct,
1 and it certainly was non-expert and was not to be taken
2 to be anything other than non-expert assessment of that,
3 it was always open to further scrutiny and always open
4 to challenge and amendment. We respectfully suggest
5 that David Capper himself in fact publicly stated in
6 a press release that, and I quote:
7 "However, speaking at the weekend, David Capper said
8 that he could not understand how anybody could draw the
9 conclusion his tape indicated the shots were fired at
10 the British Army first. Capper said if anybody says
11 that my tape-recording indicates that shots were
12 initially fired at the soldiers, I would find that
13 difficult to believe because that was not what I was
14 recording."
15 That in itself indicates that even David Capper had
16 difficulty accepting Paul Mahon's interpretation of his
17 own tapes, Capper tapes, that is. It is on the basis of
18 that information and the Eversheds statement of
19 Mr Capper, the Tribunal's analysis of the tape-recording
20 made by Mr Capper and the transcript of the broadcast by
21 Mr Capper about those events that led us to -- it
22 obviously undermines the assumption that the Capper
23 tapes had been made on the basis of the Capper tapes by
24 Mr Mahon, it left only, therefore, the soldiers'
25 evidence in relation to that matter and that was
1 challenged by the civilian evidence and, therefore, the
2 matter had to be reviewed, we said, in our amended
3 response.
4 LORD SAVILLE: Can we go back to something we were
5 discussing a moment or two ago. I think you were
6 suggesting to the Tribunal that the letter had been sent
7 by your instructing solicitors with the original
8 response in the belief that their clients, Mr Bradley
9 and Mr Bridge, had approved the contents of the
10 response; is that right?
11 MR KENNEDY: The position was, as we understood it, Mr Mahon
12 indicated that the clients did approve the response,
13 yes.
14 LORD SAVILLE: Who had indicated that?
15 MR KENNEDY: Mr Mahon.
16 LORD SAVILLE: Why did you not ask him about that when he
17 was giving evidence?
18 MR KENNEDY: (Pause). I did not know it was in dispute,
19 sir, directly at that time.
20 LORD SAVILLE: With respect, you must have known, did you
21 not, Mr Bradley and Mr Bridge were expressing the view
22 that they had not approved the original response.
23 MR KENNEDY: You are correct, sir, I did.
24 LORD SAVILLE: You have now told the Tribunal that the legal
25 team was under the impression that they had through
1 Mr Mahon.
2 MR KENNEDY: That is correct.
3 LORD SAVILLE: I repeat my question, why was Mr Mahon asked
4 about that?
5 MR KENNEDY: He should have been asked about it, sir.
6 LORD SAVILLE: It is a bit late in the day now to lay that
7 blame at the door of Mr Mahon, is it not?
8 MR KENNEDY: Yes, sir, it is.
9 LORD SAVILLE: Very well. You were going on in time
10 a little bit, Mr Kennedy.
11 MR KENNEDY: I was, sir, yes. I was going on to the letter
12 of 10th February. That was a response to the letter
13 from the Inquiry inquiring about the Lawton team's
14 submissions. You have had that letter and no doubt
15 considered it. I think it sets out clearly the position
16 that we had in that. Is there anything in that
17 letter --
18 LORD SAVILLE: I am so sorry, Mr Kennedy, to which letter
19 are you referring?
20 MR KENNEDY: I am referring to the letter
21 10th February 2004. It is a response to the
22 allegations, to a letter from the Inquiry seeking
23 a response to the allegations from the Lawton team.
24 MR RAWAT: Sir, if I can help, that is the letter that went
25 astray and it was not received by the Inquiry until
1 23rd April. You will find it is attached to a fax which
2 is actually dated 22nd.
3 LORD SAVILLE: You are quite right, that is what is puzzling
4 me. Thank you very much.
5 MR KENNEDY: Unless there is anything arising, I believe it
6 is self-explanatory.
7 LORD SAVILLE: I think we can probably go on. You have been
8 alerted to the fact that there is material by way of
9 further explanations in your letter to the Inquiry of
10 29th April.
11 MR KENNEDY: Yes, I have just been indicated that you would
12 refer me to the letter of 29th. I am not clear what it
13 is -- there is an extensive letter of the 29th and I am
14 not sure what it is --
15 LORD SAVILLE: The particular point is that Paul Mahon told
16 us that Brendan Kearney had alerted him to what he
17 described as a threat from Red Mickey Doherty. That is
18 not dealt with in your submissions, but it is dealt with
19 in your letter 29th April.
20 MR KENNEDY: Yes. Mr Kearney has dealt with that directly
21 himself in his letter in response to the Inquiry's
22 letter, following letter, seeking clarification from him
23 on those matters.
24 LORD SAVILLE: Indeed. Are we right to regard the response
25 that is in the letter of 29th April as in effect forming
1 part of your submissions, or did you want to resile from
2 it?
3 MR KENNEDY: It is a response to the explanation sought by
4 the Inquiry and, in that regard, it forms an answer and,
5 therefore, I presume a submission in that regard.
6 LORD SAVILLE: I am only asking, Mr Kennedy because, as you
7 possibly gather, I think you may have been given
8 pre-information of this, the Tribunal is minded to
9 publish this correspondence.
10 MR KENNEDY: I have just been given that information.
11 LORD SAVILLE: Do I understand it you have no objection?
12 MR KENNEDY: No objection. Unless there is anything
13 further, sir?
14 LORD SAVILLE: Going back to the tape-recording of the
15 telephone conversation, can you give us any explanation
16 as to why that was not provided to the Tribunal, either
17 before or probably the obvious point, during the
18 evidence of Mr Mahon?
19 MR KENNEDY: It was only given to us at the time, relatively
20 recently and it was brought to the attention as soon as
21 we were aware of it.
22 LORD SAVILLE: By your client?
23 MR KENNEDY: Yes.
24 LORD SAVILLE: So the lawyers representing your client have
25 only recently been made aware of the existence of that
1 tape.
2 MR KENNEDY: That is correct.
3 LORD SAVILLE: Am I right in thinking that you have asked,
4 I gather from an earlier answer, that you have asked and
5 been given confirmation that there are no other relevant
6 taped conversations?
7 MR KENNEDY: Yes, yes, sir, that is correct.
8 LORD SAVILLE: Thank you.
9 Going to the list of questions which we posed to all
10 the interested parties, the last one in particular,
11 which is directed to Paul Mahon specifically, is there
12 anything further you wish to add by way of reply to that
13 particular point?
14 MR KENNEDY: No, sir.
15 LORD SAVILLE: Thank you, Mr Kennedy.
16 Sir Louis, I think we had put you in as next.
17 Submissions by SIR LOUIS BLOM-COOPER
18 SIR LOUIS BLOM-COOPER: Thank you, sir. I hope by standing
19 here I shall not to be confused with Mr Mansfield, I am
20 not sure that he would approve the submissions as I am
21 going to make!
22 May I go to question one on the standard of proof.
23 Sir, we accept Mr Christopher Clarke's principal
24 submission, which is set out now at page or column
25 three, lines 21 to 25. Perhaps I could repeat what the
1 principal submission is that he makes.
2 LORD SAVILLE: You can, but we do have it in the transcript
3 and if you have any additions, amendments or
4 contradictions, those are what we are particularly
5 interested in hearing, Sir Louis.
6 SIR LOUIS BLOM-COOPER: May I make a comment on the
7 submission that he makes, that the formula neatly
8 separates out the process of the 1921 Act Tribunal and
9 this Tribunal's terms of reference. It separates that
10 process out from the processes and practices of the
11 criminal and civil law. We would wish on behalf of
12 NICRA to emphasise that questions of criminal and civil
13 liability for what happened on Bloody Sunday was of
14 acute and continuing importance, but they are matters
15 for other properly constituted bodies, including, one
16 may add, at the bar of public opinion.
17 Without agreeing or disagreeing with the questions
18 and answers posed by Mr Clarke in his observations,
19 NICRA would wish to draw the Tribunal's attention to two
20 authorities from the courts which reinforce, in slightly
21 different language, the principal submission made by
22 Mr Clarke which NICRA thinks is right and that the
23 Tribunal might think helpful.
24 Sir, may I draw your attention to the two
25 authorities?
1 LORD SAVILLE: Yes.
2 SIR LOUIS BLOM-COOPER: I confess an addiction to the hard
3 copy. You have been supplied with the photocopies of
4 the relevant reports. The first case is a Privy Council
5 case called Mahon and Air New Zealand, 1984 Appeal
6 Cases 808.
7 Sir, this is the famous Mount Erebus air crash in
8 New Zealand in the 1980s, I think it actually took place
9 somewhere in 1982, in which a large number of people's
10 lives were lost and there was then a public inquiry held
11 under the Royal Commission in New Zealand in which there
12 was an investigation into the causes and circumstances
13 of the disaster.
14 Sir, I do not think I need to deal with the facts
15 more than that, but ask you to turn to page 820. Sir,
16 in order to understand the passage which I am asking the
17 Tribunal to look at, one ought to start at 820, below F.
18 I do not need to read that, but draw your attention to
19 it.
20 Then, page 821A, and might I read what Lord Diplock
21 says in delivering the decision of the board:
22 "The technical rules of evidence applicable to civil
23 or criminal litigation form no part of the rules of
24 natural justice."
25 That is natural justice in terms of the workings of
1 the public inquiry. This is the formula that I would
2 submit is very much along the lines of Mr Christopher
3 Clarke's, but perhaps because it is in judicial
4 language, perhaps might be preferred by the Tribunal:
5 "What is required by the first rule is that the
6 decision to make the finding must be based upon some
7 material that tends logically to show the existence of
8 facts consistent with the finding and that the reasoning
9 supportive of the finding, if it be disclosed, is not
10 logically self-contradictory."
11 In our submission that is the formula that
12 Lord Diplock laid down as long ago as 1984 and has, in
13 our respectful submission, really guided and controlled
14 all public inquiries since then and particularly, of
15 course:
16 "The technical rules of evidence applicable to civil
17 or criminal litigation form no part of the rules of
18 natural justice."
19 Sir, if you would then go to the end of the Mahon
20 case, there is one very short passage in a judgment of
21 Lord Bingham, in a case called Lichniak. The copy that
22 you, sir, have, is at 2002, 3 Weekly Law Reports, 1834.
23 I have the appeal case reference which I can give you,
24 which is 2003, 1 Appeal Cases, 903. The passage that
25 I am going to ask you to look at is at 1841B, or 913B.
1 Sir, the passage is a very short passage, which is
2 referring to the proceedings of the parole board in
3 matters relating to the release of life sentence
4 prisoners dealing with the issue of dangerousness. Sir,
5 it is the passage at B. Perhaps I will read a little
6 bit at A:
7 "It appears the procedure worked as it should in
8 Mrs Lichniak's case, confirming the trial judge's
9 initial assessment to strongly reinforce additional
10 material which was not before me. I doubt whether there
11 is in truth burden on the prisoner to persuade the
12 parole board that it is safe to recommend release, since
13 this is an administrative process, requiring the board
14 to consider all the available material and form
15 a judgment. There is inevitably a balance to be struck
16 between the interests of the individual and the
17 interests of society and I do not think it objectionable
18 in the case of someone who has once taken life to prefer
19 the latter in case of doubt."
20 Sir, that is merely an indication, in our submission
21 that, in an administrative process such as a public
22 inquiry, the questions of burden and standard of proof
23 of the civil or the criminal law are not appropriate and
24 it is simply taking all the material before the
25 Tribunal, taking such material as it thinks necessary to
1 conclude its finding and to give the reasons for it and
2 making sure that it is self-contained and it is not
3 internally inconsistent.
4 Sir, those are the only submissions --
5 MR TOOHEY: So far as, Sir Louis, that second judgment
6 really helps us, it is concerned, as you say, with the
7 administrative process, but the making of a value
8 judgment in the end between the interests of the
9 community and the interests of the prisoner, it is that
10 aspect that the judgment focuses on rather than the
11 standard of proof to be applied in determining facts.
12 SIR LOUIS BLOM-COOPER: I think, sir, it is really saying
13 that civil and criminal procedure practices are
14 inappropriate in an administrative process.
15 What I would assume was that Lord Bingham there was
16 really adopting much the line that Lord Diplock applied
17 in the Mahon and Air New Zealand case.
18 Sir, I can indicate there is a whole stream of
19 authority in both Australia and New Zealand which
20 I think it would not be helpful to take the Tribunal to,
21 but there are some interesting observations by, and
22 Mr Toohey himself will remember perhaps, the BSF case in
23 1992, which dealt with some of these issues about public
24 inquiries.
25 Sir, those are all the submissions that I desire to
1 make on question one.
2 Sir, may I then go to question two, the history of
3 violence in Derry and the destruction of property and
4 just make very short observations. NICRA does not
5 disagree with the Aitken team's analysis of violence
6 perpetrated against the Security Forces in Derry,
7 although it is our submission that all that analysis has
8 to be put in the context of the political situation in
9 Northern Ireland at the time.
10 LORD SAVILLE: Of course it was not confined to violence
11 against the Security Forces, was it? It was accompanied
12 by violence against properties in the city.
13 SIR LOUIS BLOM-COOPER: Certainly. I think there was also
14 the implication in it that it involved the Security
15 Forces, in that the Security Forces themselves,
16 particularly the residential battalions, would have to
17 deal with the violence which was taking place regularly
18 by the rioting hooligans. That is why I put it in terms
19 of the Security Forces.
20 But our submission is that, useful as that objective
21 analysis is, what matters for the purposes of this
22 inquiry is how General Ford perceived the situation in
23 Derry after his visit on 7th January 1972 and his
24 response to it, in the form of the Operation Forecast,
25 including, of course, in particular the arrest
1 operation.
2 Our respectful submission, the Army response to the
3 Derry situation finds its expression best in the Joint
4 Security Committee meeting, 13th January. Sir, that is
5 at G52.315, 316. If I could ask the Tribunal to have
6 a look at that. That is 13th January.
7 Sir, the passage under the heading "Processions
8 Policy," one gets the statement:
9 "The Committee considered the policy on
10 processions ... " after the expiry of the order
11 of August 1971, which was going to expire on
12 8th February. The second sentence:
13 "The ban was as necessary now as it was in August
14 when it was imposed to leave the Security Forces free to
15 pursue the war against the terrorists -- indeed more
16 necessary, in view of the escalation in IRA activity.
17 It was important also to avoid occasions which might
18 provoke riot situations and endanger lives, whether of
19 civilians or members of the Security Forces. It seemed
20 therefore that the ban should be continued."
21 Then:
22 "Concessions might be made in respect of traditional
23 marches at Easter and on 12th July, but this still
24 begged the question of risk to human life if these
25 events provoked incidents.
1 "There would certainly be opposition from the Orange
2 Order to a continuation of the ban, but this could be
3 met to some extent by ensuring that there was no
4 defiance of the ban by anyone. Loyalist opinion had
5 been disturbed by the failure to stop completely the CRA
6 march on 2nd January."
7 Then, sir, you see the GOC is recorded saying:
8 "No absolute guarantee to this effect could be
9 given, but assurance could be given that measures will
10 be adopted which will make it more (sic) difficult to
11 carry out a march without incurring prosecutions and
12 without being stopped at some stage en route, depending
13 on the tactical assessment."
14 The chief constable agreed with that. It was agreed
15 that the ban should be renewed, as far as possible
16 consultation should be held for various interested
17 organisations.
18 That may become quite important when one deals with
19 question four, dealing with the question: what was meant
20 when the GOC used the words "certain measures," and
21 I shall come to that immediately.
22 Sir, then question four, what, the Tribunal ask, is
23 our meaning to be attributed to certain measures.
24 In the absence of evidence from General Tuzo, the
25 question must be in doubt as to what he was referring
1 to, but our submission is that certain measures, in the
2 context of General Ford's visit of 7th January and what
3 was said earlier in the document which I have just been
4 reading from, is that there was to be a concerted effort
5 to arrest troublesome hooligans. What other measure
6 could be contemplated, in our submission, than perhaps
7 a concerted effort to arrest hooligans.
8 Our submission is that the next sentence provides
9 perhaps the clue. Sir, the next sentence is:
10 "It was a very difficult problem," that is dealing
11 with troublesome hooligans "difficult problem to solve
12 within the law."
13 What, in our submission, was the GOC meaning by the
14 words "within the law" one cannot help noting that he
15 was not saying there were any logistical difficulties,
16 the difficulties were presented by keeping within the
17 law. It is not without interest that the date of
18 a meeting of the JSC, 13th January 1972, was the very
19 day immediately following the High Court decision in
20 Belfast to reserve judgment in the Hume and Derry
21 justices case.
22 It is our submission that the GOC, whatever may have
23 been the knowledge or lack of knowledge of any of the
24 other officers involved, whom I asked questions of in
25 the course of their evidence some time ago, the GOC must
1 have been aware, on 13th January, that the likely result
2 or a possible result of the proceedings in the High
3 Court, after two days of hearing, that his troops would
4 have no arrest powers.
5 Apart from the press reporting the case, the GOC
6 Northern Ireland at headquarters, must have been briefed
7 by those who were conducting the case on behalf of the
8 Crown in the High Court in Belfast, and the GOC must
9 have been aware of it. One adds, of course, what is
10 interesting is that General Ford, when he comes to
11 formulate the arrest operation, did solve the difficult
12 problem by using the Army to arrest when the power did
13 not exist because, as the decision turned out, on
14 30th January 1972, the Army had no power to arrest
15 anybody under the Public Order Act or under the special
16 regulations.
17 Sir, those are our submissions on question four.
18 Just a word on question five, on the NICRA
19 infiltration analysis. Sir, we rely on the infiltration
20 analysis in our responses to the submissions of other
21 parties, pages 1 to 19 of our responses, and we merely
22 observe that the allegation of infiltration stems from
23 a lack of understanding by the military of the nature of
24 the civil rights movement and NICRA's role in that
25 movement. Sir, we simply ask the Tribunal to accept our
1 response to the allegation of infiltration.
2 May I come finally to question six, which is one to
3 which NICRA attaches importance. Sir, we address the
4 questions posed by the Tribunal in relation to the
5 perception of risk by NICRA and the perception of risk
6 by the Army. We do not address the six questions posed
7 by Allen & Overy, if only for the reason that it is not
8 clear in the question posed by the Tribunal which
9 Government is referred to, whether it is Stormont or
10 Whitehall and because NICRA has already submitted, in
11 chapter 3 of its final submissions, that Whitehall, at
12 least, did not know of the arrest operation before
13 30th January 1972 and, for those reasons, we cannot
14 assist in answering the questions that Allen & Overy
15 pose.
16 Sir, what risk is it that ought to have been
17 foreseen by NICRA and by the Army? We submit and
18 suggest that the risk of violence if the march were to
19 proceed was not the only risk that NICRA, as the
20 organisers of the march, or the Army as the law
21 enforcement agency, perceived. Moreover, perception is
22 not an objective matter, it is what the two sides say
23 that their respective situation -- or saw their
24 respective situations relative to the question of the
25 banned march.
1 Sir, under the head "Political," we would make the
2 following submission: NICRA was engaged in the struggle
3 for civil rights for the minority community and was
4 demonstrating against internment introduced
5 in August 1971. NICRA was prepared to risk prosecution
6 and mandatory imprisonment to defy the ban in pursuit of
7 a legitimate aim in a democratic country. It had to
8 optimise its cause and attract as many people as
9 possible on to the streets to join the march and it was
10 important politically for NICRA to be able to go to the
11 meeting at the Guildhall.
12 On the other side, the Army was intent on enforcing
13 the ban in order to further the political aim of the
14 Stormont administration, and one only has to look at the
15 language of the Joint Security meeting of 13th January,
16 that is the one that I have already read to you, and is
17 relevant in this context.
18 So that the risk to either side was failure in the
19 exercise of political power which had to be cupolated in
20 pursuing their respective roles.
21 Sir, I come then to the risk of violence. It is
22 noticeable that in the question formulated by the
23 Tribunal in question six, it does not limit it to risk
24 of violence. The question asked by you, sir, and your
25 colleagues: what exactly was the risk that it is said
1 the Army and the Government and the organisers of the
2 march should have foreseen? Our submission is, there is
3 a wider risk than just the risk of violence.
4 On the risk of violence, we would make seven
5 propositions, which I would like to submit to the
6 Tribunal.
7 The assessment of a risk of violence during or after
8 the march depended upon what information was available
9 relevant to the organisation and management of
10 a peaceful, non-violent civil rights march, taking into
11 account previous experience of NICRA, particularly the
12 2nd January march in Belfast, and including the events
13 at Magilligan on 23rd January 1972.
14 The second proposition is that if information
15 relevant to risk assessment was fully shared between the
16 organisers of the march and those responsible for law
17 and order, then the perception of risk should not have
18 been different as between NICRA and the Army, but our
19 submission is that relevant information was not shared.
20 The third proposition, for NICRA's part --
21 LORD SAVILLE: What relevant information do you suggest
22 should have been shared?
23 SIR LOUIS BLOM-COOPER: I am just coming to that, sir.
24 For NICRA's part it had expected and calculated that
25 the march should end with a lawful meeting at the
1 Guildhall. One must remember that meetings were not
2 banned under the Public Order Act.
3 NICRA was fully entitled to take the view, expressed
4 by Chief Superintendent Lagan, that the safest way of
5 handling the march was to allow the march to proceed
6 unimpeded to the Guildhall.
7 Sir, it is worth just looking again -- and I hope it
8 is not a case of supererogation, but
9 Chief Superintendent Lagan's statement, JL1.9,
10 paragraphs 40 to 46 do repay looking at again. Perhaps
11 we could have that up on the screen. It is under the
12 heading -- he says he refers to the Widgery testimony.
13 Forty-one:
14 "To stop the march at its origin would have been
15 impractical. We understood that the marchers were
16 intending to meet up in Bishop's Field and that they
17 would therefore be scattered all around that area. In
18 these circumstances, it was impossible to put a ring
19 around them to contain them.
20 "42. To stop the marchers on route, we would have
21 encountered the same problems because we expected people
22 to be scattered all over the place. In my view to stop
23 the march at William Street/Rossville Street, would have
24 resulted in serious incidents because of the large
25 numbers that we expected to attend the march.
1 "43. To stop the march either at its origin or
2 en route would, in my view, have resulted in the
3 marchers marching on other occasions and at other
4 places. This might have taken place on a working day
5 and in mixed (Catholic/Protestant) population areas and
6 it may have resulted in confrontations between the two
7 populations. It might also have resulted in
8 counter-demonstrations from Protestant workplaces."
9 If one goes on to 44:
10 "From experience, I expected that confrontations
11 between the two populations would start with fighting,
12 leading on to stoning and possibly petrol bombing rather
13 than large scale destruction of property, serious bodily
14 harm or death. It seemed to me that this ought to be
15 avoided. If we allowed the march to proceed,
16 I anticipated that things would by comparison be
17 relatively contained.
18 "45. I felt that by allowing the marchers to enter
19 the Guildhall Square, the police and the Army could
20 identify many of the marchers by sight and through using
21 photographers, they could be prosecuted later. This
22 would have had the added benefit of minimising the risk
23 of confrontation between the marchers and the Security
24 Forces."
25 "46. I believe that had the march and the speeches
1 been allowed to proceed as planned, events would have
2 taken place as they had done in the past. That is,
3 I expected that when the speeches had finished, the
4 majority of the marchers would return to their homes,
5 their buses or their cars and a limited [it goes over to
6 JL1.10] amount of stone-throwing would then occur by the
7 hooligan element. At that time I did not believe that
8 massive damage to property would result. The only
9 injury or damage that I could see that would happen
10 would be that suffered by the Security Forces as the
11 result of the stone-throwing."
12 Then he goes on to deal with the fact that he
13 referred to that matter at the Widgery Inquiry.
14 Sir, our submission is that that absolutely
15 reflected the view of NICRA, and it was a reasonable
16 belief of NICRA that allowing the march to go ahead
17 would have been highly preferable to stopping it in the
18 way as described by Chief Superintendent Lagan.
19 LORD SAVILLE: Did your clients take into account the
20 proposed counter-demonstration by Unionists?
21 SIR LOUIS BLOM-COOPER: I am just coming to that, sir.
22 LORD SAVILLE: Only that does not seem to be something that
23 Mr Lagan refers to.
24 SIR LOUIS BLOM-COOPER: Sir, Chief Superintendent Lagan was
25 in touch with NICRA through his contact with
1 Brigid Bond. NICRA's belief was reasonably held that
2 until it became obvious, only when barrier 14 was
3 erected on the morning of the march, that it had to
4 reroute the march to Free Derry Corner. That change of
5 route was communicated to Chief Superintendent Lagan, at
6 the evidence of Lagan in his written statement, and
7 Brigadier MacLellan having received the information, at
8 something like 2 o'clock in the afternoon, that was the
9 way in which the rerouting was communicated to the
10 authorities.
11 Sir, the fourth proposition is that NICRA had no
12 knowledge whatsoever of the Army plan to deal with any
13 potential rioting, in particular, it did not know of the
14 arrest operation, using the 1st Battalion of the
15 paratroopers, which was the Army of course which had
16 been involved at Magilligan, using 1 Para, fully armed
17 and poised to enter the Bogside.
18 Sir, the fifth proposition is that the absence of
19 any communication by the Army outside of military
20 circles of its plans for policing the march, including
21 specifically its plans for dealing with any rioting, if
22 and when that occurred, was a failure to act
23 appropriately -- and I put it in quotes -- "in aid of
24 the civil power."
25 By contrast, NICRA was in constant touch with the
1 civil power, namely through Chief Superintendent Lagan,
2 and via, of course, Brigid Bond.
3 Sir, the sixth proposition is that, quite apart from
4 the failure as a general obligation to act in aid of the
5 civil power, the Army gave no effect to the 19th January
6 instructions, established jointly by the RUC and the
7 Army to deal with any defiance of the ban on marches in
8 the province.
9 Sir, might I ask you to look at G140.935,
10 particularly paragraphs 2 and 3. It is headed
11 "Instructions Regarding Government Ban on Processions"
12 and the subheading "Acting When Prohibition Defied".
13 Then sub-paragraph 2. I am not sure it is coming up
14 on the screen, G140.935. Sir, perhaps I can read it, if
15 it comes up, so much the better.
16 "Except in the case of funerals, it is essential
17 that the prohibition be strictly enforced [that is the
18 prohibition on marching] and the necessary prior
19 police/Army planning should take place to ensure that
20 the persons concerned know what action will follow,
21 should the procession take place. A detailed joint
22 police/Army plan will be made in respect of each
23 procession.
24 "3. If persons assemble to take part in the parade,
25 the obvious organisers or leaders should again be seen
1 and their intention drawn to the prohibition on
2 processions."
3 In our respectful submission that never took place,
4 the instructions of 19th January were never complied
5 with by the Army.
6 Our seventh proposition is the communication between
7 the organisers of the march and those responsible for
8 its policing was an essential ingredient of any reliable
9 risk assessment and the failure to communicate was
10 primarily, if not exclusively, the fault on the part of
11 the Army.
12 Our conclusions, sir, on question six is, that the
13 tragedy of Bloody Sunday was initially and
14 consequentially the failure of the Army to communicate
15 to the organisers of the march that it was preventing
16 the march from going to Guildhall. The result was, at
17 least, confusion about the policing of the demonstration
18 and the military attitude to the nature of a civil
19 rights march.
20 Those are the submissions that I desire to make.
21 Could I ask you, then --
22 LORD SAVILLE: Sir Louis, with respect, your conclusion does
23 not in fact provide an answer to the question, does it?
24 Are you saying that NICRA foresaw no risk of any kind,
25 or what?
1 SIR LOUIS BLOM-COOPER: No, no, indeed not. Indeed it
2 calculated the risk in much the way that Chief
3 Superintendent Lagan calculated it. That in fact the
4 easiest way of avoiding any trouble of any sort was to
5 allow the march to go unimpeded to Guildhall, and that
6 was a risk they calculated. Of course they had to take
7 into account --
8 LORD SAVILLE: Did they foresee a risk that when the
9 peaceful marchers had gone on their way, that would be
10 an opportunity that would not be missed by people who
11 desired to riot and throw stones at the Army?
12 SIR LOUIS BLOM-COOPER: No doubt, and indeed that must have
13 been in the mind of Chief Superintendent Lagan. What
14 better evidence could one have of the risk being
15 calculated by NICRA, that that was being absolutely
16 calculated by the chief officer of police in the town in
17 which the march was going to take place, with all his
18 vast experience of the town and the policing at the very
19 highest level.
20 LORD SAVILLE: The only risk that you say those concerned in
21 NICRA appreciated was the risk that at the end of the
22 march, is this right, when the peaceful marchers had
23 dispersed, there was likely, if not very likely indeed,
24 to be rioting by those who desired to riot and throw
25 stones at the Army?
1 SIR LOUIS BLOM-COOPER: Certainly that must have been
2 a factor that was being considered. Of course the one
3 factor that I think NICRA had to consider, which no
4 doubt was of some importance, was what had happened at
5 Magilligan only a week earlier.
6 As you know, sir, there were some people in the town
7 of Derry at the time who thought that was an indication
8 the march should be called off, and that was
9 a calculated risk that NICRA made. But in our
10 submission, if in fact the chief officer of police
11 thought that the best way of dealing with it was to
12 allow the march to go to Guildhall, who are the
13 organisers of the march to disagree with him?
14 Sir, those are my submissions, subject only to
15 asking you if you would listen to my learned junior,
16 Mr O'Hanlon, on question eight.
17 Submissions by MR O'HANLON
18 MR O'HANLON: Sir, question eight relates to NICRA
19 photographs. The Tribunal wishes the NICRA
20 representatives to explain the sequence of
21 photographs --
22 LORD SAVILLE: I do not think there is any need to read the
23 question, we have it in front of us.
24 MR O'HANLON: I was only reading it to indicate that I, with
25 your approval, would follow that particular route, so to
1 speak, I will explain the photographs first and then
2 indicate the differences between ourselves and the
3 Aitkin and Lawton team, with your approval.
4 The photographs that are to be explained, relate
5 essentially to the journey from the junction of
6 William Street/Rossville Street to after the water
7 cannon is used for the first time at barrier 14. With
8 that in mind, could I have on the screen EP21 and
9 EP22.7. These are the first two photographs and they
10 indicate a wider pan, a wider shot, coupled with
11 a smaller shot of a line of stewards at that junction.
12 They are placed at this point by the NICRA executive who
13 have rerouted the march to Free Derry Corner. Could
14 I have on the screen P988 and EP2/1A/1. The aim of the
15 steward was to avoid confrontation with the Security
16 Forces at barrier 14 by diverting the march down
17 Rossville Street.
18 That brings me, sir, to P353 and P372, please. In
19 photograph 353 the lorry goes round the corner into
20 Rossville Street. There is a lone steward,
21 Ivor McElhinney and the breakaway group going down
22 William Street. It is clear the stewards have been
23 outflanked and there has been what Kevin McCorry called
24 "a momentary loss of control" at this particular
25 junction. The banner is still on the lorry at this
1 stage.
2 Could we have video 25 at approximately 2 minutes,
3 please.
4 (Video Played)
5 Sir, perhaps I could explain, with this particular
6 area I wish to focus on, you will notice when the video
7 is shown that there are stewards at the commencement of
8 the footage at or about William Street before the camera
9 pans out across the wasteground to the adjacent barrier.
10 When it swings back it confirms the photographic
11 evidence. This small piece of footage takes 25 seconds
12 and I think that all times are important in relation to
13 this matter.
14 (Video Played)
15 Sir, it is clear from that that there is an initial
16 breakaway group followed by some stragglers who go down
17 William Street. The next photographs, EP4.9 and EP4.10,
18 indicate their arrival at the general location.
19 There is one before that, my apologies, I missed
20 one, photograph P2.49. This is a bit later in the day,
21 but the reason I put it up at this stage is the context
22 of the video. It is the general view of the location
23 and the space that, on reflection, the stewards had to
24 cover. It also indicates that the vast majority of the
25 march, as was indicated in the evidence, are proceeding
1 down Rossville Street. It is no other moment than that,
2 there seems to be some CS gas in the photograph, which
3 would place the photograph at a slightly later time.
4 The breakaway group at this stage proceeds down
5 William Street. Could I have on the screen EP4.9 and
6 EP4.10.
7 There is no conflict here. The breakaway group stop
8 at Quinn Lane, which is the smaller street before
9 Chamberlain Street. Some individuals come forward and
10 missiles are thrown by individuals in both those
11 photographs.
12 The next photographs are EP4.11 --
13 LORD SAVILLE: You say the groups stopped, how are you able
14 to tell that from these photographs?
15 MR O'HANLON: The one thing that is certain, they are not at
16 Chamberlain Street, and some of the stone-throwers come
17 forward from that location. The lamppost on the right
18 would clearly indicate the sort of dimension that
19 I would include in an observation of those photographs.
20 In EP4.10, it is quite clear --
21 LORD SAVILLE: The only point I was making was, these
22 photographs are taken at an instant of time. I am not
23 sure you can tell from them whether they were taken
24 while the main body of people were stationary or when
25 that is as far as the main body of people were moving
1 had got to at the time the photographs were taken.
2 MR O'HANLON: Indeed, all photographs represent a sliver of
3 time and must be placed in context at all stages.
4 I would respectfully say, sir, in running these
5 photographs and trying to marry them up with the videos,
6 I am doing the very best I can to marry up what is on
7 the screen with what the context is in which these
8 photographs have been shown.
9 A group has gone down William Street. They have
10 obviously, because there is no photographic evidence to
11 this effect, have gone any further than that general
12 location. That is all that I would suggest that the
13 photographs are saying. In photograph EP4.10, it is
14 quite clear that some people are coming forward, but
15 most of them seem to have stopped in the general area of
16 Bonds Lane.
17 The next two photographs are EP4.12 and EP4.12/1.
18 The group remains at Bonds Lane as the stewards come
19 through and take control. The steward with the dimpled
20 anorak in the foreground is a man called O'Donnell, who
21 is labelled, so to speak, in EP4.16. He is the first
22 steward who arrives on the scene. On the right-hand
23 side of the photograph is a man called Ivor McElhinney,
24 who plays quite an important role in matters as they
25 emerge in this particular location.
1 EP4.13 and EP4.13.1, please. These photographs
2 would seem to indicate, sir, if you bear with me one
3 moment -- I seem to be missing a photograph. It is
4 EP4.12, I think it is EP4.12 and EP4.12.1. If you look
5 at EP4.12, sir, you will see that McElhinney at this
6 stage is in the centre of the photographs and he appears
7 to be pointing. It is not possible, as you indicate
8 earlier, to say what McElhinney is doing, but one of two
9 things is happening, in my respectful submission. He is
10 either forming a second line of stewards and some more
11 have arrived at this stage, as is clear: McFadden has
12 arrived at this stage, in the labelled one. Some other
13 stewards have arrived. He is either forming a second
14 line of stewards further back or he is freeing
15 Chamberlain Street as a possible exit route by forming
16 up roughly at the lamppost at this particular location.
17 Those are my submissions in relation to these
18 photographs.
19 EP4.13 and EP4.13/1, this is as compliance with that
20 particular situation. O'Donnell has obviously, once
21 still in the centre of the photograph, has moved back to
22 a line which frees the junction with Chamberlain Street
23 and Joe Gallagher is also moving back. There are other
24 people coming through. Michael McDaid is not actually
25 the individual that is with the question mark, that is
1 Mr Sweeney, who appears quite regularly in photographs
2 until the water cannon comes in. So you have McDaid and
3 Sweeney there as well and the number of stewards is
4 obviously growing.
5 Could I have on the screen EP4.14 and EP4.14.1. The
6 civil rights banner arrives. McElhinney is still nearer
7 Quinn Lane than the lamppost. Once again I repeat the
8 time is passing. The banner was on the lorry when the
9 breakaway happened. There is now a solid line of
10 stewards at this particular location.
11 Could I have video 48 at approximately 1 minute,
12 please.
13 (Video Played)
14 Video 48 at 1, the civil rights banner arrives.
15 There is a sense of direction to the stewarding. It is,
16 and this is our submission, it is of course easier to
17 gain control in the narrow confines of William Street
18 instead of the wide open spaces of the wasteground. The
19 speed with which stewards came to this location quite
20 clearly indicates that while there was a momentary loss
21 of control, very speedy steps were taken to reassert
22 control and, in our respectful submission, control has
23 been reasserted at this particular stage.
24 Could I have on the screen EP4.15. This, in our
25 submission, would indicate the situation towards the end
1 of the video footage that we have just shown, that the
2 banner, the civil rights banner is back on the
3 right-hand side of the street, having gone across the
4 junction to some extent. It may well be, sir, in the
5 context of the video clip, that there was an attempt to
6 divert the banner down Chamberlain Street at that
7 particular point in time because the banner goes in that
8 direction momentarily before swinging back.
9 There is a potential problem which seems to be
10 gathering on the left-hand side of the photograph, but
11 I will come back to that in due course. Could we have
12 photographs P1033 and P1034. As is clearly seen in that
13 photograph, Kevin McCorry has now arrived at the scene
14 in 1033 and is quite clearly indicating his view about
15 what should happen at this particular location. It is
16 not possible to say what he is actually saying, but he
17 is certainly not letting the banner through from that
18 location.
19 On the right-hand side of that photograph with
20 Mr McCorry can clearly be seen Mr Sweeney and, to the
21 left-hand side, are a number of stewards. In the second
22 of the two photographs, Mr Sweeney and Mr McElhinney are
23 once again at the front of the crowd and clearly
24 indicating that matters must rest there.
25 The next two photographs, EP4.16 and EP4.16/1,
1 Kevin McCorry can be seen in the picture. A large
2 number of stewards are in evidence. The loss of control
3 at the junction of William Street/Rossville Street has
4 been remedied, in as much as anything can be remedied in
5 a situation as existed in William Street at the time.
6 Could I have on the screen picture 1105.
7 Sweeney, McCorry, and the civil rights banner. It
8 is a reverse angle photograph. It shows the distance
9 between Mr Sweeney, Mr McCorry, and barrier 14.
10 Could I have on the screen EP58 and EP58/1. I am
11 showing these photographs, in the photographic sense, in
12 reverse order, sir, because I wish to get the location
13 with Chamberlain Street in at an early stage. It would
14 also indicate that stewards are prominent and the
15 problem that I referred to earlier, a growing problem,
16 is being addressed at this particular stage.
17 In the first of the photographs that is shown.
18 Actually it foreshortens it, but to the right of the
19 first photograph O'Donnell and Bridge can be seen in the
20 original photograph. Sorry, the photograph that I have
21 before me is actually 738, which is a wider pan of that
22 particular location, but I will move on.
23 EP57 and EP57.1. Further along the line there are
24 a large number of photographs to be seen. There is
25 a continuation of the line to the right. O'Donnell is
1 unidentified in the photograph once more. He is the
2 individual with the dimpled anorak. All the other
3 stewards at the scene seem to be identified in the
4 second photograph.
5 Photograph 572. It is not possible to approximate
6 with any certainty whatsoever where this particular line
7 was, in the sense of where the front-line is, but it
8 shows how packed the street has become at this
9 particular stage. It is the only reason that I included
10 it.
11 EP55 and EP55/1. A continuation of the line which
12 I would respectfully say is consistent with the
13 photographs I have showed earlier. Some of the stewards
14 are in effect shown in this particular photograph.
15 EP56 and EP56/1. As can be clearly seen, neither of
16 them are identified. O'Donnell is to the left of the
17 photograph and Sweeney is to the right of the
18 photograph, neither of them identified.
19 Could I have on the screen photograph 1035 and
20 photograph 888, please. O'Donnell is in the photograph
21 as is Charlie McCrudden and other stewards, and the
22 civil rights banner.
23 In photograph 888, this is the first picture with
24 the unidentified steward in it. The figure, two from
25 left with the white armband who appears in a lot of the
1 photographs, as we approach the barrier. It was not
2 possible to get a name for him, sir, he was never
3 identified in any photograph.
4 EP5.17 and photograph P1037. That seems to be
5 a mistake. That is quite clearly after. Would you try
6 4.17, please.
7 The line of stewards is quite clearly across
8 William Street. You will see a licence of licensed
9 bookmaker's at the top right side of this photograph
10 here. I will come back to that in due course.
11 Could I have on the screen photograph 377 and
12 photograph 377.1. Sir, the reason I show you these
13 particular photographs at this stage is that barrier 14
14 is positioned at the drainpipe next to the hoarding, the
15 Silk Cut hoarding that runs down the building. I return
16 to that at a later stage.
17 Inspector Junkan and the officer in charge had been
18 seen in similar positions to a photograph I will come to
19 shortly. The photographs are just shown for
20 geographical determination, more than any other reason.
21 Could I have photograph 1028 on the screen, please.
22 This is a photograph that allows an estimate of distance
23 to be made. I should have indicated in the previous
24 photograph that you can see all six windows in the
25 building running down from where I indicated the barrier
1 was, so that the windows on the first floor are an
2 indication of distance.
3 It allows an estimate of distance to be made. The
4 line of stewards are six windows away when Inspector
5 Junkan makes his public announcement. The windows are
6 still there today. Note the boarded-up window at ground
7 level and the word "bookmaker" above it.
8 Photograph 1040 and photograph 375/1. In the first
9 of these photographs, 1040, Inspector Junkan consults
10 with the officer in charge, obviously quite shortly
11 before making one of his public announcements. Would
12 you note, sir, the small man in the white shirt and dark
13 tie next to Barney McFadden in the first photograph,
14 just under the civil rights banner. He is just above
15 the shoulder of the individual, centre left.
16 The second photograph indicates the licensed
17 bookmaker sign. Barney McFadden and the small man in
18 the white shirt and dark tie are in evidence, almost
19 exactly where they were in photograph 1040, but from
20 a different angle. Once again the unknown steward,
21 I keep mentioning him, stands before Liam Bradley, not
22 under the lamppost, but directly in line with the
23 lamppost in the photograph.
24 Photographs 1038 and 12039. Inspector Junkan in
25 1038 and the soldier I call the officer in charge, move
1 out in relation to the public announcement. 1039,
2 Inspector Junkan makes his public announcement.
3 Missiles are thrown from the rear of the crowd.
4 Could I run a small piece of footage, sir, that
5 I would seek at this stage might be of some interest.
6 It is at video 48 at approximately 120. It is
7 a four-second piece and it might be played twice if,
8 hopefully, we can get it.
9 (Video Played)
10 I think it is slightly before that in context.
11 (Video Played)
12 Ivor McElhinney is in this photograph. Here he
13 comes. Inspector Junkan is behind the officer as he
14 walks forward. Could we show that again, please, and
15 just let it run.
16 In our respectful submission, at some stage on the
17 journey from Bonds Lane to the barrier, Ivor McElhinney,
18 at least, walks forward to consult with the officer in
19 charge and Inspector Junkan. It is not clear if anyone
20 else joined him, although I think there are a couple of
21 other stewards walking across there, but it is clearly
22 the case, there is a lot of open ground at this stage,
23 still at this stage. One cannot give any explanation as
24 to what McElhinney is doing, but it is clear that he is
25 walking towards the officer in charge and Inspector
1 Junkan and it is undoubtedly to consult with them.
2 EP4.21 and EP4.21.1. It might be appropriate if
3 I play a small section of video just before this
4 because, maybe I can do it this way, it makes no
5 material difference. There is a public announcement
6 being made, one of the two public announcements by
7 Inspector Junkan. It is in the same context as the
8 photographs I have indicated earlier. In our submission
9 the march is still -- the breakaway group, the march has
10 gone down Rossville Street. The breakaway group are
11 still somewhere around the bookmaker's shop. I think it
12 is of some interest that at the very rear of the
13 photograph, the one without the annotations, there is an
14 arm raised sir, right at Chamberlain Street. It may
15 well be that a stone is being thrown at that particular
16 moment in time. Certainly we have never indicated to
17 this Tribunal that stones were not thrown when
18 Inspector Junkan was making his public announcement or
19 public announcements, depending on what material we had
20 to hand, but certainly stones were thrown.
21 Could I have video 38 at approximately 130, I think.
22 (Video Played)
23 Would you put it back slightly before that. It is
24 clear missiles were thrown at this particular stage.
25 Would you run it slowly from after -- once we get to --
1 stop it there. Would you move it slowly. Sir, I may
2 have one of the photographs wrong, which I will come to
3 presently. The girl with the scarf -- would you reverse
4 it slightly. It is very difficult to see on this, but
5 just exactly where we are, that is Ann Hope who was hit
6 by a missile on the way to the barrier. The individual
7 behind her is an individual who is seen at some stage
8 interfering, attempting to interfere with the barrier.
9 So I seem at a later date to have taken a photograph and
10 placed it out of context, but I will explain that when
11 I come to it.
12 What is quite clear as we run this footage, there is
13 absolutely clear movement in front of the barrier by the
14 stewards.
15 (Video Played)
16 Stop it there. We have never contended that
17 missiles were not thrown at Chamberlain Street. We have
18 never contended that missiles were not thrown at this
19 location because its video evidence and the photographic
20 evidence indicates that.
21 Could I have photograph 889, please. This is
22 another photograph, as Inspector Junkan makes his
23 announcement. O'Donnell is in the foreground, in our
24 respectful submission, probably foreshortened, but
25 certainly there is no indication that the crowd are
1 anywhere near the barrier.
2 Could I have EP4.23 and EP4.23/1, please.
3 Inspector Junkan has now moved away. Who are clearly
4 visible are O'Donnell and McFadden. In the first
5 photograph, hidden behind one of the annotations in the
6 second, the slightly balding man on the left-hand side
7 of the screen would seem to be Mr McGlinchey, who
8 figures prominently in a lot of the photographs.
9 Could I have EP4.20 and P373.
10 Once again a line of stewards which includes
11 Michael Bridge, Sweeney, McElhinney and others. The
12 second photograph, I would ask you to note the two girls
13 in white coats who are in the photograph, the bottom
14 left. A number of stewards can be seen facing the
15 camera. Could I have photographs 374 and 375, please.
16 It is clear on the right-hand side that McElhinney is
17 still walking unimpeded in the photograph. The beret of
18 Sweeney can be seen in the middle of photograph 374. In
19 375, it is not as clear probably as it should be, it
20 might be clearer in a large form, the submission I would
21 make: there seems to be a movement of people to the
22 right towards Chamberlain Street while the stewards hold
23 the line further up William Street. One cannot say for
24 certainty what effect this happened during the course of
25 the afternoon, but the direction of the heads seem to
1 indicate that a lot of people are moving in that
2 direction.
3 We will come to the photograph I think is out of
4 sync, it is EP5/10. It is our respectful submission
5 that this is foreshortened and that this photograph
6 indicates Ann Hope, who is seen in no footage at the
7 barrier. The unidentified steward that I have indicated
8 already, plus a gentleman who falls into or attempts to
9 interfere with the barrier in some of the video footage,
10 I would respectfully suggest that on reflection, that
11 rests at an earlier period than this particular period
12 as we get close to the barrier.
13 P375.3 and P375.4. The first picture there is no
14 serious attempt to breach barrier 14. Liam Bradley is
15 in the foreground. In the second photograph, the body
16 language of everybody in the photograph indicates that
17 nobody seems to be under threat of missiles at this
18 stage. The stewards are in control.
19 Could I have 375/5 and photograph 841, please. The
20 first of the two photographs clearly indicates where the
21 barrier is because there is the piping that runs down
22 the wall that I indicated in the earlier photograph. So
23 that is the location at which the barrier was. In the
24 photograph the stewards are not under pressure. They
25 seem to be allowing individual protests because they are
1 more experienced than the Army at policing duties.
2 Could I have EP5.11. McGlinchey can be seen in this
3 particular photograph. It may be foreshortened, sir, it
4 may be at the barrier, it is not possible to say.
5 Could I have EP4.24 and EP4.24/1, please. Now we
6 are at the barrier. In the first of the two photographs
7 we can see Mr Sweeney, or rather the beret of Mr Sweeney
8 just below the helmet of a soldier, right in front of
9 a Mr Frankie Boyle who appears in the spitting incident
10 at some stage at this particular time. Once again there
11 is no sign of rioting in either of these photographs.
12 Could I have P890 and P891. In the first of the
13 photographs Mr Sweeney and Mr McFadden. It may well be
14 Frankie Boyle is standing in front of them. In the
15 second photograph, 891, shows Sweeney on his own in
16 a similar posture as a video I am coming to as the water
17 cannon came in for the first time.
18 Could I have on the screen EP583 and EP4.25, please.
19 The water cannon is coming in. On the left-hand side of
20 the screen you see the banner collapsing in the
21 photograph. I would ask you, sir, to notice the same
22 girls in the white coats in the bottom left-hand side of
23 the photograph, still in the queue that is moving
24 towards Chamberlain Street. There is no sign of rioting
25 or any unease.
1 In the second photograph the banner is collapsing,
2 the water cannon is coming in. I would ask you to note
3 a number of things about this photograph. McElhinney,
4 McFadden and the unknown steward are middle right of the
5 photograph as the water cannon comes in for the first
6 time. They are standing there at the front of the
7 particular group as the water cannon comes in. The
8 banner is collapsing, as it is in the previous
9 photograph. There is also a long stick-like implement
10 in the middle of the photograph that I would like to
11 return to in another photograph.
12 Could I have on the screen photograph 4 -- EP426,
13 please. I would ask the Tribunal to compare photograph
14 400 with photograph 1040 in relation to the number of
15 stones on the ground as the water cannon comes in on
16 a comparative basis. I have failed to mention the
17 number of stones on the ground in the photograph as it
18 went through. The number can be estimated, sir, as they
19 can in the photograph at 1040.
20 It is our respectful submission that the vast bulk
21 of the stones that were thrown in William Street were
22 thrown either from the junction with Chamberlain Street
23 or at the time when Inspector Junkan was making his
24 announcement, but that is a matter for the Tribunal.
25 I would ask you to consider the two photographs.
1 Could I have on the screen -- could I have video 25,
2 I think approximately 2 minutes. I apologise to the
3 staff, I am going out of sequence here, video 48, at
4 135.
5 (Video Played)
6 Could we look at this as it stands anyway, it saves
7 us coming back to it. This is barrier 12 at a very
8 early stage of CS gas fire. Could we run back to the
9 beginning of that.
10 (Video Played)
11 There is the puffs in what seems to be a pristine
12 situation. There is the CS gas. Across the street
13 there is a banner and a number of young people. I will
14 come back to that issue at a later stage, sir. That was
15 not the piece, it was the barrier 14 situation when they
16 were right up against it. Could you reverse that
17 slightly.
18 Sir, in relation to the video of events at the
19 barrier, it would be our respectful submission that
20 video footage has been edited almost to infinity.
21 I would be able to pick three or four continuals in
22 relation to what was happening at the barrier, but it
23 makes sequencing almost impossible. All that barrier 14
24 video evidence can do is give a flavour of events.
25 There is a level of unrest, a situation at the difficult
1 end of stewarding in a cramped space. There is no
2 indication of stone-throwing in the body language of
3 those present.
4 (Video Played)
5 You may note at the end of that the officer in
6 charge walking away. I may return to that at a later
7 stage because it shows the spitting incident, it also
8 shows the officer buttoning his tunic and moving out of
9 the way. It may well be that the water cannon is
10 summoned up at that particular stage. There is the
11 individual who attempted to grab the barrier, but he is
12 pulled away from it by the stewards, McElhinney and
13 Liam Bradley in particular.
14 Photograph 585 and 586. Photograph 787 and
15 photograph 395. I am out of sequence here.
16 Could I stop a moment, sir, I seem to have lost my
17 sequence. My apologies. Photographs 587 and 585, my
18 apologies to the technical staff.
19 This is a continuation of the water cannon sequence.
20 As you can see in this photograph, the street is packed.
21 You can see, at the front of the photograph, right,
22 Michael Bridge facing out towards the crowd. In the
23 second photograph what seems to be the same girl in the
24 white coat can be seen in the lower right half of the
25 photo. The water cannon sprays one side of the street.
1 She is deep in conversation. Other people are chatting,
2 there is no indication that stones are being thrown.
3 I would also add, on the right-hand side, middle right
4 of the photograph, the long implement is still there
5 that I mentioned in relation to the banner.
6 Could I have photograph P586, please. The same girl
7 is lower right-hand side of the photograph, sir, facing
8 out towards the camera. She is still chatting. In the
9 foreground there is a man with his arms in the air.
10 Could I have photograph P787 and P787/1. A man with
11 his arms in the air. Jim Wray on the ground, sitting.
12 Michael Bridge at the left-hand side of the photograph;
13 people moving away from the jet of water.
14 Jim Deakin, who was holding the banner with his two
15 fingers in the air with a victory sign.
16 Could I have on the screen photograph 395 and
17 photograph 393.
18 The civil rights banner still seems to be in the
19 centre of the photograph, although the casualties are
20 beginning to mount on the right-hand side of that
21 photograph. In photograph 393 we see Michael Bridge on
22 the right, walking away, under a jet of water, but there
23 is a figure in the centre of that photograph, and if you
24 look over his left shoulder, there is a figure under the
25 stream of water. In our respectful submission that is
1 the figure of Ivor McElhinney, walking away from the
2 scene, one of the last out of the street. In front of
3 him there seems to be an armband. It may be mistaken,
4 but there seems to be an armband in front, who may well
5 be another steward.
6 Finally, could we have on the screen, photographs
7 394 and 394.1. This is really the exit from
8 Chamberlain Street, as we understand it. Michael Bridge
9 is the last individual out. He later returns to the
10 riot situation in another capacity.
11 Sir, I would just like to run one video that covers
12 the scene as the water cannon is coming in. It is video
13 25 at, I think, 2 minutes.
14 (Video Played)
15 Stop it there. This is Mr Sweeney, who I have
16 indicated in similar pose at an earlier stage as the
17 water cannon comes in. The soldiers at the barrier do
18 not seem to be under any bombardment at all, their body
19 language seems to be quite relaxed. The street is
20 packed. The water cannon is coming in. It would be our
21 respectful submission that when NICRA mentioned moving
22 people away from the barrier, there are two matters just
23 to relate in relation to this. We are not saying that
24 it went anywhere near the corner of Chamberlain Street
25 again, but there is a major element of control in this
1 piece of video, as Mr Sweeney moves people back. There
2 is a girl with a brooch, I think in this sequence, who
3 was with Mr Boyle when he was spitting at the barrier.
4 Can we run that please.
5 (Video Played)
6 There she is. There is certainly some ground
7 between the barrier and the ground as the water cannon
8 comes in.
9 Those are the photographs, sir. I have finished the
10 photographs, I would now like to proceed to the points
11 at issue with the Aitkin team and the Lawton team, with
12 your permission, unless there are any questions you may
13 wish --
14 LORD SAVILLE: No.
15 MR O'HANLON: The issues that I wish to address in relation
16 to the Aitkin team's closing submissions are spelt out
17 at 6E at paragraph 119 and 120. It is not necessary,
18 unless it is easily to hand. In 119, the Aitken team in
19 closing submissions said:
20 "The water cannon was then brought up to barrier 14
21 and for the first time began hosing the crowd. The time
22 was approximately 3.44".
23 I do not disagree with that, I think that was the
24 time. In 120:
25 "The use of water cannon was justified because at
1 this stage the crowd at barrier 14 had become out of
2 control. The evidence of Anthony Feeney is interesting
3 in this respect."
4 At paragraph 119, go on to quote the evidence of
5 Mr Feeney in relation to this matter.
6 What it indicates is that he was a third of the way
7 back in the march; that he went down to the location; he
8 managed to make his way to the barrier; when he got
9 there the situation was bedlam, to paraphrase it, and
10 that he could not stop it.
11 Finally, he was asked the question:
12 "Question: As you say in paragraph 8, you were
13 struck on the back by the jet of purple water?
14 "Answer: That is correct.
15 "Question: And driven up against the wall of the
16 picture house?
17 "Answer: That is correct."
18 The evidence of Mr Feeney, sir, does not end there.
19 He goes on to give the following evidence in the ensuing
20 pages. He did not stay long at the scene. He retired
21 to the wasteground to the south of William Street where
22 the old laundry used to stand. He looked northwards
23 towards William Street and saw a young man lying in
24 front of him on the wasteground. When he approached the
25 scene, the persons present were, in addition to Feeney,
1 were: the boy, a girl and Mr Johnston.
2 Without more, the sequence of events placed
3 Mr Feeney in William Street long after the water cannon
4 is used for the first time. He was later questioned by
5 Mr Glasgow and he was asked the question at Day 67, 108:
6 "Question: You were not amongst the stewards at the
7 front of barrier 14 ever?
8 "Answer: No, after I started I was at the front,
9 then I made my way down."
10 Mr Glasgow tried again at 67, 120, and the following
11 sequence took place:
12 "Question: Could you help the Tribunal at all as to
13 whether there was a time when the stewards had been
14 attempting to persuade the soldiers to allow the
15 marchers through, would that have happened before you
16 got there?
17 "Answer: I think it happened before I got there,
18 but there was talk of it afterwards.
19 "Question: You knew that it had been an attempt?
20 "Answer: No, I heard, I did not know, I heard.
21 "Question: You were told afterwards that an attempt
22 had been made?
23 "Answer: Made, yes.
24 "Question: By stewards?
25 "Answer: Yes.
1 "Question: To attempt to allow the march through
2 the Guildhall?
3 "Answer: That is correct."
4 The Aitken team did not question Mr Feeney. Yet at
5 paragraph 120 they rely on him as evidence or an
6 indication that matters had got out of control at the
7 time the water cannon came in. It is our respectful
8 submission that they are mistaken in placing Mr Feeney
9 at that location at that particular time.
10 Could I then refer, moving backwards, to
11 paragraph 110. At paragraph 110 of the Aitken team's
12 closing submissions, they say:
13 "Some of the civilian evidence supports the timing
14 in the logs to the effect that the crowd became hostile
15 very shortly after reaching barrier 14."
16 At paragraph 111 they state:
17 "The ITN journalist gives the following graphic
18 account in his written statement,
19 dated 8th February 1972, M66 doc 1, paragraph 2. At
20 about 3.35 I saw the crowd, mostly youths, appear around
21 the bend in William Street and march up to the barrier.
22 Near the front of them a blue and white civil rights
23 banner was being carried aloft. I estimate this crowd
24 numbered 200 to 300 and as they approached they were
25 chanting. One of the chants was 'IRA, IRA'. The crowd
1 came right up to the barrier and started to throw bricks
2 and bottles and blocks of wood, (some of which were nail
3 studded) and pieces of metal. I would describe this as
4 heavy and steady missile throwing."
5 The Aitken team seem to be oblivious to the fact
6 that the content of this particular portion of that
7 statement later repeated before this Tribunal,
8 contradicts the sequence of events suggested in
9 paragraph 103 of their closing submission, and the
10 detail contained in the photographs taken at the scene.
11 I questioned David Phillips about his evidence on
12 Day 139, 178, 13, to Day 139, 183, 20 and at 139, 180,
13 25, I put the following to him:
14 "Question: Could I put it to you, therefore, that
15 the missile-throwing you saw was after the water cannon
16 went in for the first time?"
17 This was because, you may recall, sir, in the course
18 of his evidence he indicated that he saw a crowd at the
19 top of Chamberlain Street. I attempted to put the
20 sequence at Chamberlain Street to him. He said he had
21 not seen the stewards and he also indicated he had gone
22 back to the hotel to get a piece of equipment for the
23 team who had left it there.
24 So that is why I put the question to him:
25 "Question: Could I put it to you therefore, that
1 the missile-throwing you saw was after the water cannon
2 went in for the first time?
3 "Answer: Sorry, I would like to refer to my notes,
4 logged at the time as to what went on. I have logged on
5 the note as 4.05, water cannon up after rioters bring up
6 corrugated iron shield."
7 Then I asked the question:
8 "Question: That is the stone-throwing mob that you
9 refer to in your statement?" to which he replied "yes."
10 It will be interesting to inquire why 405 became 335
11 on 8th February 1972 statement, but that is not a matter
12 for this Tribunal. The Aitken team did not question
13 David Phillips.
14 Reference is made elsewhere, and it is just because
15 this has been made by the Aitken team and because he has
16 been mentioned, reference is made elsewhere to the press
17 report file by Nigel Wade in the Daily Telegraph on the
18 following day in support of the contention that a riot
19 was underway as the water cannon came in for the first
20 time. In his statement to the Tribunal Mr Wade places
21 himself well back on the march.
22 He heard a shot at William Street/Abbey street.
23 A woman approached. "Go on, go and do your duty, there
24 is a wee boy has been shot down there."
25 In his Widgery statement, he recalls youths running
1 down William Street and stoning when they got there.
2 This, of course, is contradicted by the photographic
3 evidence anyway, but is, in fairness, I had to point it
4 out.
5 Also, to be fair to Mr Wade and I refer to 109, 1248
6 to 109, 124, 24. That is 109, 124-8 to 24.
7 Mr Clarke does put to him the contradiction in the
8 two statements about whether he was at the barrier first
9 or whether he was at the location where people were
10 shot, Donaghy and Johnston, and he was not able to help
11 the community. I will repeat just the last three lines
12 from:
13 "Question: Your present recollection is that that
14 happened, I think, on the other way round, on the way
15 down."
16 In other words the shots were followed by a visit to
17 the barrier, to which he replied:
18 "Answer: Even then I would not urge you to rely
19 upon it."
20 My recollection is the Aitken team did not question
21 that either.
22 The following can be stated in support of the NICRA
23 case, the photographic evidence does not indicate that
24 a riot is taking place at barrier 14 when the water
25 cannon comes in. Video footage indicates a packed
1 street with a level of unrest that constitutes the
2 difficult end of stewarding, but there is no footage
3 that indicates a riot as the water cannon comes in for
4 the first time. There is photographic evidence that
5 records stone-throwing at
6 William Street/Chamberlain Street when the breakaway
7 group arrive and there is video footage and photographs
8 that records stone-throwing at the Junkan announcements.
9 It is likely that any photographs or video evidence
10 that was adverse to the NICRA case would still be
11 extant, so our submission would be: there is no record
12 of stone-throwing at barrier 14 in video or photographic
13 material. We see attempted interference with the
14 barrier and a spitting incident that certainly disturbs
15 the officer in command. It is our submission that
16 a riot was not taking place before the water cannon came
17 in for the first time.
18 The body language of the crowd does not speak to it.
19 The body language of the stewards does not speak to it.
20 The body language of the soldiers does not speak to it.
21 The use of the water cannon was precipitated and
22 unwarranted, there was no breach of barrier 14, or no
23 serious threat of a breach and no loss of control by the
24 stewards warranting the use of the force section of
25 Operation Forecast.
1 Ultimately, when the use of a water cannon was
2 ordered, sir, the stewards were there in numbers and in
3 control, holding the line as they had at all times since
4 their arrival at Bonds Lane. They were clearly men and
5 women of extraordinary resolution, if they were prepared
6 to stand at a barrier that the trained Army personnel on
7 duty there had decided could only be protected through
8 the use of the water cannon, their discipline,
9 dedication and endurance was in the best traditions of
10 the civil rights movement.
11 LORD SAVILLE: Had there been any stoning by that stage?
12 MR O'HANLON: Yes, there had been stoning at
13 Chamberlain Street and stoning as Junkan made his public
14 announcements.
15 LORD SAVILLE: Had the inspector been hurt by a missile
16 hitting him on the head by that stage?
17 MR O'HANLON: I am not sure that that was what happened.
18 I think it knocked his hat off. He may well have been.
19 Then Ann Hope had also been injured at that stage, sir.
20 We have never resiled from the fact that missiles were
21 thrown at Chamberlain Street, William Street, and also
22 as the announcements were made. I would indicate
23 photographs 400 and 1040 as to the level of stoning that
24 took place on the journey down the street and it would
25 be our respectful submission that the stoning that
1 occurred in William Street on that occasion at that time
2 was nearly absolutely confined to those two sectors: the
3 Chamberlain Street/William Street area and at the time
4 of the public announcements and the evidence is strewn
5 on the ground in photographs 1040, which is at the time
6 of the public announcement and photograph 400, which is
7 at a later stage, as the water cannon comes in. I hope
8 I have the first photograph right, sir, I think it is
9 1040.
10 MR HOYT: Mr O'Hanlon, photograph 400 depicts a scene quite
11 a bit east of the barricade, does it not?
12 MR O'HANLON: Speaking from memory now, sir, the water
13 cannon has been in at that stage, is it not, and on the
14 ground are stones.
15 MR HOYT: That is right.
16 MR O'HANLON: Therefore, it is a matter for the Tribunal.
17 It would be our submission that there is not any
18 significant degree of difference between the stones that
19 were on the ground when Junkan is making his
20 announcement as in photograph 400 as the water cannon
21 was in.
22 MR HOYT: Photograph 400 seems to be taken further back from
23 the barricade than some of the other photographs that
24 you drew our attention to.
25 MR O'HANLON: It may well be, sir. In foreshortening, that
1 may well be the case, but it would be my submission that
2 it is quite close to the barrier when this photograph is
3 taken, but it is a matter for the Tribunal.
4 There are two further matters, sir, that I would
5 wish to address the Tribunal on, if it is deemed
6 appropriate. The first one is that the Aitken team
7 contend that public announcements by Inspector Junkan
8 were made by the breakaway were at barrier 14, at least
9 that is going on their sequence of events. NICRA
10 submits that they were mistaken and relies on the
11 photograph and video evidence that I have indicated.
12 The first warning to disperse was given at 1539,
13 W123.serial 228, currently Rucksack is talking to the
14 crowd at serial 14. Shortly afterwards a second
15 announcement is made. The time is undoubtedly later
16 than 1539. If NICRA is right about the location of the
17 crowd when the announcements are made, there is still
18 some distance to go to the barrier. Bearing in mind
19 that Ivor McElhinney approached the barrier at this
20 time, in our submission it is not possible to state when
21 the crowd eventually reached barrier 14.
22 Suffice it to say, there was very little time before
23 the water cannon was used because the water cannon comes
24 in for the first time at 1544. I leave the matter
25 there.
1 I would take the more general point about the other
2 barrier, sir. The initial use of the water cannon at
3 barrier 14 signalled the end of the only significant
4 policing function exercised on the day. Until the use
5 of a water cannon for the first time at barrier 14, the
6 stewards exercised a policing function in relation to
7 persons who were not on the march, the march was
8 proceeding down Rossville Street. The Army ended the
9 stewarding function when they cleared the street. The
10 breakaway group were not a homogenous mass, they
11 included potential rioters, media, stewards, onlookers
12 and people intent on getting to the Guildhall. Many
13 returned to the march. Some individuals returned to
14 riot at barrier 14. Others went up William Street to
15 the other location, including barriers 12 and 13. It is
16 clear from all submissions that have been made that the
17 use of the water cannon for the first time at barrier 14
18 had a domino effect.
19 The use of CS gas by the Army at barrier 12 is
20 showed on the video that was shown earlier. Unless it
21 is necessary, I will not return to it. It seems to be
22 an early use of gas as the air seems gas free until the
23 cartridges explode. They are aiming at a small group
24 gathered around a banner on the other side of the
25 street. This does not need to be put up either unless
1 it is necessary.
2 G95.572 at 4A, use of force indicated that. CS gas
3 is not to be used throughout this event except as a last
4 resort, only if troops are about to be overrun and the
5 rioters can no longer be held off with baton rounds and
6 water cannon. The scenario outlined in 4A did not
7 pertain in James' Street at any time during the day. I
8 reference Inquiry INQ1326, Day 301, 105, to Day 301, 107
9 who was a major in command of 11 Battery, 22 Light Air
10 Defence regiment at barriers 12 and 13.
11 He confirmed that the situation did not pertain on
12 the day and, interestingly, he was unaware of the detail
13 of 4A.
14 At G98.593-alpha ammo expenditure CLN, it is
15 reported that:
16 "1. 65 multiplied by CS cartridges and 15
17 multiplied by CS grenades were used. The exploding
18 cartridges and grenades smothered thousands of peaceful
19 marchers in a toxic mist. The use of CS gas was
20 contrary to the terms of Operation Forecast and the
21 orders of the day."
22 The Lawton team in their closing submission at 6C,
23 131, V164, comment as follows:
24 "Before any soldiers deployed into the Bogside fired
25 any shots, the march had degenerated into violent and
1 sustained attack on the Army manning the barriers,
2 barring the marchers' progress to the Guildhall."
3 In our respectful submission, this is quite
4 disingenuous. Is this not how the Army envisaged, to
5 quote the terminology of the time, how the battle would
6 go? The operation order for Sunday, 30th January 1972,
7 at G82A.521.001 at situation 1D indicates "The CLF has
8 decreed that the marchers must be stopped at all costs."
9 The aim was to stop the march, not to contain the march
10 and General Ford planned accordingly.
11 NICRA ask why containment was not enough and
12 suggests what should have been done on the day, unless
13 there was a mal-intent that the Tribunal must decide.
14 The way to avert any incident was quite simple, to
15 totally block off the lower end of William Street at or
16 about barrier 14 and all other approaches to the
17 Guildhall Square, create a no man's land, barbed wire,
18 whatever, as far as the junction with Rossville Street,
19 allow the march to proceed to Free Derry Corner.
20 Photograph the individual marchers for the purpose of
21 further prosecution. General Ford wanted the march
22 stopped at all costs and he wanted the media present
23 with him to witness it. That is why the barriers were
24 so flimsy, sir, they had two functions: they were there
25 to keep the public out and let the Paras in.
1 Those are my submissions.
2 LORD SAVILLE: Thank you. We have got to 11.55, I think it
3 was Barry McGrory who was going to be next, since it is
4 11.55, I think we may stop for lunch and start at 12.40.
5 (11.55 am)
6 (The Short Adjournment)
7 (12.45 pm)
8 Submissions by MR McGRORY
9 MR McGRORY: Sir, I would not propose to keep the Tribunal
10 too long. I do not have any comment to make in respect
11 of the questions issues. There were, however, some
12 comments I seek to make in relation to issues arising
13 from the reply to submissions submitted by the Lawton
14 team.
15 The first issue arising, sir, would be that
16 concerning the movements of Martin McGuinness, insofar
17 as they may or may not have been contradicted by any of
18 the witnesses who came before the Tribunal.
19 It had been submitted by us at first instance that
20 in fact there had been no contradictory evidence in that
21 regard. In reply it was stated that in fact there were
22 four witnesses who might have contradicted
23 Mr McGuinness's movements. They were Sheila Ingram,
24 Willy Breslin, Nell McCafferty and Martin Shiels.
25 I would submit, sir, closer examination of the
1 evidence of these witnesses does not support the
2 contention that they contradict Mr McGuinness's
3 movements. These submissions are made at FR7.31
4 onwards. Sheila Ingram more specifically at FR7.34.
5 She points out an alleyway in a photograph. Sir, I do
6 not propose to open these references, but I give them to
7 the Tribunal in ease of its later researches.
8 She points out in a photograph AI1.12, which is on
9 page 34 of FR7, an alleyway from which she recalled
10 seeing Mr McGuinness emerge at a certain point in the
11 day in the company of one or two others.
12 That reference is referred to to support the
13 contention that in fact that puts Mr McGuinness out of
14 sync of his own movements. However, sir, Mr McGuinness,
15 in a statement at KM3.11, paragraph 22, makes it clear
16 that he returns to the area of Westland Street and the
17 Bogside Inn area, which I would submit to the Tribunal
18 is only yards from Meenan square which links the
19 alleyway from which he is said to have emerged. In
20 fact, in the broad scheme of things it does not really
21 contradict his movements at all.
22 If one looks at the evidence of Mrs Ingram,
23 Day 417-bar 80, bar 20, she makes it clear that this
24 encounter was a fleeting one and that she was so intent
25 on removing herself from the area that she did not
1 really notice what way Mr McGuinness was going.
2 In that regard, it was said in the submissions that
3 he was moving back down towards Free Derry Corner, which
4 was bringing him back into the area of conflict.
5 However, I would submit to the Tribunal that in fact the
6 encounter was so fleeting that it really cannot be
7 treated as evidence of his moving backwards in that
8 direction. Indeed, ten pages later, Day 417, 89-bar 20,
9 she told Mr Glasgow that although she stood by her
10 recollection, it was 32 years ago, she was terrified and
11 trying to get away from the shots at the time.
12 MR TOOHEY: Mr McGrory, may I ask you the nature of the
13 exercise upon which you are presently embarking? I ask
14 it for this reason: I do not think it was envisaged that
15 this would be an occasion for responses to the response
16 or rejoinders to the response, unless of course
17 something that arose for the first time, something that
18 the opportunity had not been provided to reply to. If
19 what you are seeking to do is to respond to the
20 response, then, while that may be of use to us, could
21 I suggest we would be helped by references without
22 necessarily reading passages from the evidence.
23 MR McGRORY: Indeed. That may indeed shorten the submission
24 even more, sir. There are maybe five headings in
25 respect of which I wanted to make a very short
1 submission about final submissions, where I felt that
2 the Lawton team had perhaps misunderstood or misquoted
3 my original submission. So in the light of your
4 comment, sir, I will make them even briefer than I had
5 intended.
6 MR TOOHEY: That is a personal view, listening to the way in
7 which you appear to be approaching it.
8 MR McGRORY: The whole submission will take no longer than
9 about 10 or 15 minutes, and I can find ways to shorten
10 it even further.
11 MR TOOHEY: That was not the object, to simply cut you
12 short, but for you to have some appreciation of what the
13 Tribunal sees this as the occasion for.
14 MR McGRORY: The only submissions I had to make were really
15 relating to issues which arose during the course of the
16 final reply from the Lawton team. Perhaps I should give
17 the Tribunal the headings under which I wish to speak
18 and then the references, and leave the Tribunal to look
19 at it, if it so wishes.
20 MR TOOHEY: Unless you then want to draw them together in
21 some very brief form.
22 MR McGRORY: Yes, I would propose to do that, sir.
23 The other three witnesses then in that category
24 would have been Willy Breslin, Nell McCafferty and
25 Martin Sheil. I would submit, if you look at each of
1 those witnesses: Willy Breslin at Day 194, bar 178, to
2 Day 194, bar 179, up to line 16, the point concerning
3 Willy Breslin was that something was made of the fact
4 that he said he had seen Mr McGuinness at one point in
5 the company of a Mr McCallion, in a place where
6 Mr McGuinness would have said he was not. If you look
7 at that reference, you will see that in fact he said it
8 was only a momentary glimpse and in fact he was not at
9 all sure he had seen him at all.
10 Insofar as Nell McCafferty is concerned, much is
11 made of her evidence that she had seen Mr McGuinness
12 called to a scene where some young boys were seen with
13 weapons near the Bogside Inn, but in fact, when
14 Ms McDermott questioned Ms McCafferty, she accepted the
15 two people with her had not seen this incident and she
16 was not sure it had happened at all. So I would submit
17 that that could not be relied upon.
18 The other headings under which I wish to speak,
19 I can briefly refer you to. They would be the issue of
20 the absence of any sightings of Mr McGuinness, where
21 reference is made to that during the replies.
22 I would simply remind the Tribunal, the point there
23 was that Martin Ingram made reference to having seen
24 military surveillance of Martin McGuinness on the day
25 and that that material has not been forthcoming.
1 I simply venture to suggest that perhaps had it been
2 contradictory, there is speculation that it might have
3 been.
4 The other issues would be in respect of Infliction.
5 It has been said that our submissions have failed to
6 take into account that the Tribunal has available to it
7 material which has not been seen by any party, from
8 which it can perhaps more reliably assess the weight of
9 the Infliction material.
10 We have already submitted heavily on the issue of
11 relying on anonymous evidence where an accused is not
12 able to confront his accuser. I would simply submit
13 that to rely on even more evidence which has not even
14 been seen at all would only compound the injustice of
15 relying on the Infliction material, where he has not
16 been confronted.
17 Another point has been made in the area of
18 intelligence concerning document INT1.70 to 74, that
19 because this document was created as an intelligence
20 document and not as a propaganda document, it is somehow
21 more reliable than if it had been created for propaganda
22 purpose. I simply submit that is no measure of
23 reliability at all. Intelligence material can be as
24 equally unreliable as propaganda if it is unchecked,
25 unsourced and unchallenged, which it must be in this
1 case.
2 That leads me finally just to the submission on any
3 weight which might be attached to the deliberations of
4 the independent monitoring commission which I have to
5 say, in summary, really reads that the IMC might at some
6 future point name those high-ranking members of
7 Sinn Fein which it believes to be members of the IRA --
8 one of those might be Martin McGuinness -- that the
9 Tribunal might want to take it into account, if that
10 were to occur.
11 I would suggest that is really an hypothesis,
12 hypothesis upon an hypothesis and really should not be
13 entertained as a realistic submission at all. This
14 particular body has already run into serious
15 difficulties within hours of the publication of the
16 report over inaccuracies which have led to a number of
17 court applications, I understand, and the contradictory
18 statement produced by the PSNI in relation to some of
19 the material within.
20 I would simply make the general observation in
21 relation to intelligence material, that perhaps the
22 experience in recent weeks and months of the possible
23 unreliability of intelligence in Iraq as to weapons of
24 mass destruction, the existence of them or otherwise,
25 might show the inherent unreliability of intelligence
1 must be always borne in mind by any Tribunal seeking to
2 rely upon it.
3 Those really are the issues to which I wish to draw
4 the Tribunal's attention and I would not seek to detain
5 it further.
6 LORD SAVILLE: Mr O'Donovan, is there anything you wanted to
7 say this afternoon on any matter?
8 Submissions by MR O'DONOVAN
9 MR O'DONOVAN: Very briefly, sir, if I may address question
10 five. The Tribunal knows what that is. Not
11 surprisingly, on the first limb, we did not address
12 infiltration as such. If I may, I will merely direct
13 the Tribunal to chapter two of our initial submissions
14 at FS13.6 to 10 and to our responses at 13.15 to 16.
15 Further, I submit there is assistance to be gained
16 from the document already referred to this morning by my
17 learned friends from NICRA, and if I may, I adopt their
18 submissions at FR10.1 to 10.4. Consequently, those
19 matters put together, I say the relationship contended
20 for by some between the Official IRA persons that
21 I represent and NICRA generally is not made out.
22 Sir, if I can deal briefly with the second limb of
23 question five. You may recall that part of it states,
24 in the submissions of the Aitken team at FS8.194:
25 "As a result of its insider knowledge, there can be
1 no doubt but that the Official Republican movement,
2 including Official IRA, will have been aware of the
3 nature and detail of NICRA's planning for the march on
4 30th January 1972."
5 When the Tribunal considers in more detail its
6 submissions, I submit that it will become evident that
7 there is a complete lack of particularity in regard to
8 that allegation. If I may deal with it briefly, in
9 these terms: they do not particularise the insider
10 knowledge which it is suggested has been acquired; they
11 do not identify the recipients, whether they be at an
12 executive level or within this city, in other words,
13 people related to the Derry CRA; they do not say how the
14 knowledge was acquired; they do not say when it was
15 acquired and they fail -- this is most material -- to
16 indicate how advantage was taken of that information
17 once it had been acquired.
18 Sir, the question posed partly in the second limb of
19 question five is: what is the evidential basis, if any,
20 for the infiltration and did it have any material effect
21 on the events of the day.
22 Sir, it is my submission, in short, that what the
23 Aitken team have done is merely make an assertion; there
24 is no persuasive argument to back it up, but most
25 particularly, there is no substantial evidential base to
1 support it. Consequently, I invite the Tribunal,
2 insofar as it touches upon those that I represent, to
3 ignore that submission. That is all I wish to say.
4 LORD SAVILLE: Thank you, Mr O'Donovan, very much.
5 Mr Lloyd Jones, I think we had listed you as next to
6 tell us about the law.
7 Submissions by MR LLOYD JONES
8 MR LLOYD JONES: Sir, with your permission, I would like to
9 address the question of standard of proof.
10 Sir, it is our submission that, in addressing the
11 question of the approach which this Tribunal should
12 adopt for the standard of proof, there is a great deal
13 of guidance and assistance to be found in the decided
14 cases. With your permission, sir, and that of your
15 colleagues, I would wish to take you to some of these
16 authorities, to identify the applicable principles
17 before considering whether there are any special
18 circumstances applicable to this Inquiry which would
19 justify a departure from those principles and then
20 consider how the principles for which we contend should
21 be applied in this particular case.
22 MR HOYT: This will be in addition to what you have
23 submitted in writing, will it?
24 MR LLOYD JONES: Yes, sir.
25 MR HOYT: Something new?
1 MR LLOYD JONES: Some of the authorities are already dealt
2 with in our written submissions, but it is the case that
3 we have now had the benefit of hearing what Mr Clarke,
4 Counsel to the Inquiry, said yesterday. There are
5 important differences between our positions. It is, as
6 Mr Clarke said yesterday, a question of fundamental
7 importance to this Inquiry as to how it should approach
8 the evidence and the approach which it should adopt in
9 evaluating it and, with your permission, I would like to
10 take some time in addressing this matter, because we
11 would agree that it is a matter of fundamental
12 importance.
13 Sir, over the last 15 years the courts have
14 developed a consistent approach to the issue, which is
15 of general application. In essence the principle which
16 is established by these cases is that the more serious
17 an allegation, the higher is the standard of proof which
18 is required to be applied.
19 May I take you immediately to some of the more
20 important of those authorities. We have prepared
21 a bundle of authorities, and I hope that you all have
22 copies of that and I hope my learned friends have copies
23 of that as well.
24 LORD SAVILLE: I know there are copies in existence. We do
25 not have them on the bench here at the moment.
1 MR LLOYD JONES: I am sorry about that, I will make
2 enquiries. The copies have been made, sir, and I am
3 told they are available, they are with the Tribunal.
4 LORD SAVILLE: Shall we rise for a moment and see.
5 MR LLOYD JONES: I am sorry to put you to that trouble, sir,
6 but perhaps that would be the most convenient course.
7 (1.05 pm)
8 (A short break)
9 (1.07 pm)
10 LORD SAVILLE: We have them, Mr Lloyd Jones.
11 MR LLOYD JONES: Thank you, sir, I am sorry you have been
12 put to that trouble. The starting point, sir, is the
13 first authority in the bundle, In re H. This concerned
14 care proceedings and an allegation of sexual abuse. The
15 relevant passage on which I rely is in the speech of
16 Lord Nicholls. It starts at page 586, letter C.
17 Lord Nicholls addresses the standard of proof. He says:
18 "Where the matters in issue are facts the standard
19 of proof required in non-criminal proceedings is the
20 preponderance of probability, usually referred to as the
21 balance of probability."
22 I can skip, unless anybody wants me to read anything
23 further, to the next paragraph:
24 "The balance of probability standard means that
25 a court is satisfied an event occurred if the court
1 considers that, on the evidence, the occurrence of the
2 event was more likely than not. When assessing the
3 probabilities the court will have in mind as a factor,
4 to whatever extent is appropriate in the particular
5 case, that the more serious the allegation the less
6 likely it is that the event occurred and, hence, the
7 stronger should be the evidence before the court
8 concludes that the allegation is established on the
9 balance of probability. Fraud is usually less likely
10 than negligence. Deliberate physical injury is usually
11 less likely than accidental physical injury.
12 A stepfather is usually less likely to have repeatedly
13 raped and had non-consensual oral sex with his under age
14 stepdaughter than on some occasion to have lost his
15 temper and slapped her. Built into the preponderance of
16 probability standard is a generous degree of flexibility
17 in respect of the seriousness of the allegation.
18 "Although the result is much the same [I draw
19 attention to those words], this does not mean that where
20 a serious allegation is in issue the standard of proof
21 is higher. It means only that the inherent probability
22 or improbability of an event is itself a matter to be
23 taken into account when weighing the probabilities and
24 deciding whether, on balance, the event occurred. The
25 more improbable the event, the stronger must be the
1 evidence that it did occur before, on the balance of
2 probability, its occurrence will be established."
3 At the foot of the page, it refers to
4 Lord Justice Morris in Hornal v Neuberger:
5 "This approach also provides a means by which the
6 balance of probability standard can accommodate one's
7 instinctive feeling that even in civil proceedings
8 a court should be more sure before finding serious
9 allegations proved than when deciding less serious or
10 trivial matters.
11 "No doubt it is this feeling which prompts judicial
12 comment from time to time that grave issues call for
13 proof to a standard higher than the preponderance of
14 probability."
15 He then refers to two cases concerned with child
16 abuse:
17 "The law looks for probability, not certainty.
18 Certainty is seldom attainable. But probability is an
19 unsatisfactorily vague criterion because there are
20 degrees of probability. In establishing principles
21 regarding the standard of proof, therefore, the law
22 seeks to define the degree of probability appropriate
23 for different types of proceedings. Proof beyond
24 reasonable doubt, in whatever form of words expressed,
25 is one standard. Proof on a preponderance of
1 probability is another, lower standard having the
2 inbuilt flexibility already mentioned. If the balance
3 of probability standard were departed from, and a third
4 standard were substituted in some civil cases, it would
5 be necessary to identify what the standard is and when
6 it applies. Herein lies a difficulty. If the standard
7 were to be higher than the balance of probability but
8 lower than the criminal standard of proof beyond
9 reasonable doubt, what would it be? The only
10 alternative which suggests itself is that the standard
11 should be commensurate with the gravity of the
12 allegation and the seriousness of the consequences.
13 A formula to this effect has its attraction. But
14 I doubt whether in practice it would add much to the
15 present test in civil cases, and it would risk causing
16 confusion and uncertainty. As at present advised
17 I think it is better to stick to the existing,
18 established law on this subject. I can see no
19 compelling need for a change."
20 Sir, that is the starting point. I will make my
21 submissions on this group of cases at the end, if I may.
22 MR TOOHEY: Mr Lloyd Jones, before you take us to any other
23 case, could we be clear (1), as to the statement of
24 principle as to what is the appropriate standard of
25 proof and (2), in what respect you would depart from the
1 submissions made to us by Mr Clarke?
2 MR LLOYD JONES: Yes, sir. Sir, our submission, is this: it
3 is open to the Inquiry to make findings of fact -- would
4 you bear with me for one moment, please.
5 It would be our submission that it is open to the
6 Inquiry to make findings of fact, applying a standard of
7 proof which is proportionate to the seriousness of the
8 allegation; the more serious the allegation, the higher
9 should be the standard which should be applied.
10 In the case --
11 LORD SAVILLE: That seems to be the very opposite of what
12 Lord Nicholls was saying on page 586. I read him as
13 saying that the standard of proof remains the same, but
14 what you do is, when you are weighing, in the case of
15 a civil case, the balance of probabilities, the inherent
16 probability or improbability of an event is itself
17 a matter to be taken into account.
18 MR LLOYD JONES: Lord Nicholls certainly says that, sir, but
19 I will be taking you to the further authorities in which
20 the House of Lords has developed this and gone
21 considerably beyond that, in particular what is said by
22 Lord Hope and Lord Steyn in the case of McCann.
23 LORD SAVILLE: Is this now wrong, then, this part of
24 Lord Nicholls's judgment?
25 MR LLOYD JONES: No, I am not saying it is necessarily
1 wrong. What I am saying is that the House of Lords, in
2 that later case, that is accepted, that when this
3 flexible test is applied in cases concerning allegations
4 of implied criminal wrong-doing, that the test which is
5 applicable is indistinguishable from the criminal
6 standard.
7 So, to answer the question which was imposed by
8 Mr Justice Toohey, our position is that, in the great
9 majority of factual issues which are before this
10 Inquiry, it would be appropriate for the Inquiry to
11 apply a standard -- not necessarily the civil standard
12 or the criminal standard, but it would be open to draw
13 such findings as it can to such a standard as is
14 appropriate.
15 But in cases where the finding of fact is one which
16 implies criminal wrong-doing, it will be our submission
17 that such a conclusion should be drawn only if the
18 Tribunal is satisfied to the criminal standard and in
19 other situations where findings of serious wrong-doing
20 are to be made, falling short of criminality, that is
21 serious misconduct or disobedience of orders, such
22 findings should be made only if the Tribunal is
23 satisfied, to an enhanced civil standard of proof. That
24 is on the balance of probabilities, as modified to take
25 account of the inherent unlikelihood of the allegation
1 being true.
2 MR HOYT: That modifies your original submission in which
3 you say in both instances the criminal standard should
4 be that ...
5 MR LLOYD JONES: Yes.
6 MR HOYT: So you have modified that?
7 MR LLOYD JONES: We have certainly modified that. The
8 position is, I readily accept, not as straightforward as
9 we suggested in our original written submissions. We
10 would accept that in the great majority of issues of
11 fact before the Tribunal, it is open to the Tribunal to
12 make findings on whatever standard it considers
13 appropriate.
14 It may say, in certain situations, for example, that
15 it is possible that an event occurred or that a state of
16 affairs existed. It may conclude there was a real
17 possibility. It may find that something is more likely
18 than not. It may find that it is sure. But the two
19 qualifications which we would make to that, in an
20 ascending scale are, first, if the Tribunal is going to
21 make findings of serious wrong-doing -- and we use that
22 perhaps in the sense in which the Tribunal itself used
23 that expression in its ruling on giving notice of
24 allegations so as to impugn, for example, serious
25 misconduct, disobedience of orders or matters such as
1 that, matters falling short of an implied finding of
2 criminal misconduct -- in those circumstances, it is our
3 submission that the appropriate approach would be to
4 apply the enhanced civil standard.
5 It is a flexible scale, so that the Tribunal has the
6 opportunity of applying a standard which is commensurate
7 to the seriousness of the allegation.
8 The second qualification is that, in our submission,
9 findings which imply criminal wrong-doing should be made
10 only if the Tribunal is satisfied to the criminal
11 standard.
12 That position can be reached by an alternative
13 route, which is to say that if you are to apply the
14 enhanced civil standard, that in that situation when we
15 reach the top of the scale, the enhanced criminal
16 standard becomes indistinguishable from the criminal
17 standard and that is the point which is made in a number
18 of the cases to which I will now take you.
19 So the second authority, sir, very briefly, is
20 B v Chief Constable of Avon and Somerset, Lord Bingham.
21 That is the second authority in the bundle. Could
22 I take you very briefly to the headnote. This was a sex
23 offender order. The chief constable was applying for an
24 order prohibiting contact with a child or a young
25 person. We see in the headnote that on an appeal by B
1 against the making of such an order by the magistrates:
2 "... that an application for a sex offender order
3 under section 2 of the 1998 Act was properly
4 characterised as a civil, not a criminal, proceeding
5 since the nature of the issue concerned the prevention
6 of further criminal activity by injunctive means, not
7 the trial, conviction and punishment of an offender, the
8 initiating process by way of complaint was that normally
9 used to commence civil proceedings in a magistrates'
10 court and the condition in section 2(I)(b) was an
11 appropriate basis for administrative action nor criminal
12 conviction; and that, accordingly, the justices were
13 required to apply a civil standard of proof which, in
14 relation to the condition in section 2(I)(a), would be
15 indistinguishable from the criminal standard and which,
16 in relation to the condition in section 2(I)(b), would
17 be applied with the strictness appropriate to the
18 seriousness and implications of the matter to be
19 proved."
20 I need refer only to one passage, which is at
21 paragraph 30 and 31, where Lord Bingham says this:
22 "It should, however, be clearly recognised, as the
23 justices did expressly recognise, that the civil
24 standard of proof does not invariably mean a bare
25 balance of probability, and does not so mean in the
1 present case. The civil standard is a flexible standard
2 to be applied with greater or lesser strictness
3 according to the seriousness of what has to be proved
4 and the implications of proving those matters.
5 "In a serious case such as the present the
6 difference between the two standards is, in truth,
7 largely illusory. I have no doubt that, in deciding
8 whether the condition in section 2(I)(a) is fulfilled,
9 a magistrates' court should apply a civil standard of
10 proof which will for all practical purposes be
11 indistinguishable from the criminal standard. In
12 deciding whether the condition in section 2(I)(b) is
13 fulfilled the magistrates' court should apply the civil
14 standard with the strictness appropriate to the
15 seriousness of the matters to be proved and the
16 implications of proving them."
17 The next authority, sir, is Gough in the Court of
18 Appeal, Gough and another v Chief Constable of the
19 Derbyshire Constabulary. This was a football-banning
20 order. The relevant passage is at paragraph 89. It is
21 the judgment of the Court of Appeal, Court of Appeal
22 Lord Phillips, Lord Justices Judge and Carnworth.
23 Paragraph 89, the court said this:
24 "Mr Thompson contended that proceedings under
25 section 14B are criminal proceedings and that, in
1 consequence, the criminal standard of proof applies.
2 Lord Justice Laws [he is referring to the
3 Divisional Court] gave detailed consideration to the
4 question of whether banning orders were 'penalties' in
5 relation to submissions, made on behalf of an appellant
6 who has not appealed to us, that article 7 of the
7 Convention had been violated. Lord Justice Laws held
8 that banning orders were not penalties. We endorse his
9 conclusions for the reasons that he gave. We also
10 reject the submission that section 14B proceedings are
11 criminal. They neither require proof that a criminal
12 offence has been committed, nor involve the imposition
13 of a penalty. We find that the proceedings that led
14 that the imposition of banning orders were civil in
15 character.
16 "It does not follow from this that a mere balance of
17 probabilities suffices to justify the making of an
18 order. Banning orders under section 14B fall into the
19 same category as anti-social behaviour orders and sex
20 offender orders. While made in civil proceedings they
21 impose serious restraints on freedoms that the citizen
22 normally enjoys. While technically the civil standard
23 of proof applies, that standard is flexible and must
24 reflect the consequences that will follow if the case
25 for a banning order is made out. This should lead the
1 justices to apply an exacting standard of proof that
2 will, in practice, be hard to distinguish from the
3 criminal standard."
4 He refers there to B and to McCann, to which we will
5 come in a moment:
6 "Thus the necessity in the individual case to impose
7 a restriction upon a fundamental freedom must be
8 strictly demonstrated. The first thing that has to be
9 proved under section 14B(4)(a) is that the respondent
10 has caused or contributed to violence in the
11 United Kingdom or elsewhere. Mr Pannick conceded that
12 the standard of proof of this is practically
13 indistinguishable from the criminal standard."
14 Then we come to McCann in the House of Lords. This
15 was an anti-social behaviour order --
16 MR TOOHEY: Sorry to interrupt you again, Mr Lloyd Jones.
17 I am troubled by the extent to which these authorities
18 bear directly upon the task that the Tribunal is faced
19 with. I say that because the Inquiry is set up under
20 the 1921 Act, of course, and its terms of reference are
21 to inquire into the events of Sunday, 30th January 1972
22 which led to the loss of life in connection with the
23 procession.
24 So our task is to inquire into events, no doubt to
25 find whether event A occurred or whether event B did not
1 occur. But how far does the analogy of banning orders
2 and the like really take us in this field? As judges
3 are sometimes wont to say -- what is the strongest case.
4 Is there any case that bears directly on the task of an
5 inquiry of this sort?
6 MR LLOYD JONES: Not directly on an inquiry of this sort,
7 but the nearest analogy is that of coroners' inquest --
8 I will come to that -- where similarly the task with
9 which the coroner and the jury are charged is an
10 investigation into the finding of primary facts so in
11 our submission it is a very close analogy.
12 I have to take your Lordships to these decisions of
13 higher authority first, before showing you how exactly
14 the same principles have been applied in the case of
15 coroners. These are, of course, House of Lords
16 decisions. The principles are worked out here in
17 relation to specific banning orders, but it will be our
18 submission that the principle is wider than that and
19 I will demonstrate that by reference to those other
20 cases.
21 I am sorry if it is tedious taking you to a series
22 of cases. These are important, in our submission,
23 I will be as quick as I can.
24 Very briefly, McCann, again a restrictive order, an
25 anti-social behaviour order in this case. There are two
1 passages on which I rely. First, a brief passage of
2 Lord Steyn, paragraph 37:
3 "Having concluded that the relevant proceedings are
4 civil, in principle it follows that the standard of
5 proof ordinarily applicable in civil proceedings, namely
6 the balance of probabilities, should apply. However,
7 I agree that, given the seriousness of matters involved,
8 at least some reference to the heightened civil standard
9 would usually be necessary." He refers to In re H:
10 "For essentially practical reasons, the Recorder of
11 Manchester decided to apply the criminal standard. The
12 Court of Appeal said that would usually be the right
13 course to adopt. Lord Bingham of Cornhill has observed
14 that the heightened civil standard and the criminal
15 standard are virtually indistinguishable [that is
16 a reference to B]. I do not disagree with any of these
17 views. But in my view pragmatism dictates that the task
18 of magistrates should be made more straightforward by
19 ruling that they must in all cases under section 1 apply
20 the criminal standard. If the House takes this view it
21 will be sufficient for the magistrates, when applying
22 section I(I)(a) to be sure that the defendant has acted
23 in an anti-social manner, that is to say, in a manner
24 that caused or was likely to cause harassment ...
25 et cetera."
1 The other passage is in the speech of Lord Hope at
2 paragraph 81:
3 "As Lord Phillips ... observed in the Court of
4 Appeal in the McCann case, anti-social behaviour orders
5 have serious consequences. It was with this point in
6 mind that ... he commended the course which the Recorder
7 of Manchester followed in the Crown Court when he said
8 that, without intending to lay down any form of
9 precedent, the court had decided to apply the standard
10 of being satisfied so that they were sure that the
11 statutory conditions were fulfilled before they would
12 consider the making of an order in the case of each
13 defendant. I too would endorse this approach for the
14 following reasons.
15 "Mr Crow for the Secretary of State said his
16 preferred position was that the standard to be applied
17 in these proceedings should be the civil standard. His
18 submission, as it was put in his written case, was that
19 although the civil standard was a single, inflexible
20 test, the inherent probability or improbability of an
21 event was a matter to be taken into account when the
22 evidence was being assessed. He maintained that this
23 view was consistent with the position for which he
24 contended, that these were civil proceedings which
25 should be decided according to the civil evidence rules.
1 But it is not an invariable rule that the lower standard
2 of proof must be applied in civil proceedings. I think
3 that there are good reasons, in the interests of
4 fairness, for applying the higher standard when
5 allegations are made of criminal or quasi-criminal
6 conduct which, if proved, would have serious
7 consequences for the person against whom they are made."
8 We draw attention to those words. He then refers to
9 a Scottish case of Constanda v M in 1997:
10 "... when it decided that proof to the criminal
11 standard was required of allegations that a child had
12 engaged in criminal conduct although the ground of
13 referral to a children's hearing was not that he had
14 committed an offence but that he was exposed to moral
15 danger. There is now a substantial body of opinion
16 that, if the case for an order such as a banning order
17 or a sex offender order is to be made out, account
18 should be taken of the seriousness of the matters to be
19 proved and the implications of proving them."
20 Again we draw attention to those words.
21 "It has also been recognised that if this is done
22 the civil standard of proof will for all practical
23 purposes be indistinguishable from the criminal
24 standard."
25 He refers to B and to Gough. At the end of that
1 paragraph:
2 "But the condition in section I(I)(a) that the
3 defendant has acted in an anti-social manner raises
4 serious questions of fact, and the implications for him
5 of proving that he has acted in this way are also
6 serious. I would hold that the standard of proof that
7 ought to be applied in these cases to allegations of
8 defendant's conduct is the criminal standard."
9 I turn then to the coroner cases and a few limited
10 passages from those. The first is ex parte Gray, which
11 is at flag 5. I can go straight to 477, before
12 Lord Justice Watkins. It is a passage from the middle
13 of the page:
14 "I turn now to the standard of proof. We heard much
15 argument about this. There is a lack of direct
16 authority on the point. We were referred to cases on
17 suicide going back into the last century, all of which
18 emphasise the presumption against suicide, and the
19 requirement of rebutting that presumption. Suicide was
20 then a crime. It no longer is. But it is still
21 a drastic action which often leaves in its wake serious
22 social, economic and other consequences."
23 He then refers to Lord Widgery. I can pick it up at
24 the foot of the page, letter G:
25 "It will be noted that Lord Widgery alluded to the
1 stringent test, but without reference to what may be
2 called the conventional standards of proof. I cannot
3 believe, however, that he was regarding proof of suicide
4 as other than beyond a reasonable doubt. I so hold that
5 that was and remains the standard. It is unthinkable,
6 in my estimation, that anything less will do. So it is
7 in respect of a criminal offence. I regard as equally
8 unthinkable, if not more so, that a jury should find the
9 commission, although not identifying the offender, of
10 a criminal offence without being satisfied beyond
11 a reasonable doubt.
12 "As for the other verdicts open to a jury, the
13 balance of probabilities test is surely appropriate save
14 in respect, of course, of the open verdict."
15 That was followed with the ex parte McCurbin, which
16 is the next case. I can go straight to
17 Lord Justice Woolf. I can pick it up at page 725,
18 I think. He refers to Lord Justice Denning in
19 Hornal v Neuberger, to which I do not need to take your
20 Lordships to. I can pick it up at page 725, before
21 letter D:
22 "Lord Justice Denning went on to develop the matter.
23 Summarising the effect of what Lord Justice Denning was
24 saying, it was that, technically, there can be
25 a distinction between the civil and the criminal
1 standard of proof. However, judges (and, I would add,
2 all tribunals) should be cautious not to create problems
3 for themselves by approaching the question of burden of
4 proof in an artificial manner. From a practical point
5 of view, where a serious allegation is being made,
6 obviously, a high standard of proof is required, however
7 technically you define that burden."
8 He goes on to refer to the speech of Lord Scarman in
9 Khawaja. That case concerned the question whether an
10 individual was an illegal immigrant and the standard of
11 proof which applied to proof of that fact.
12 Again, I think I can pick it up over the page at
13 letter D:
14 "Lord Scarman summed up his views, at page 114:
15 "'Accordingly, it is enough to say that, where the
16 burden lies on the executive to justify the exercise of
17 a power of detention, the facts relied on as
18 justification must be proved to the satisfaction of the
19 court. A preponderance of probability suffices: but the
20 degree of probability must be such that the court is
21 satisfied. The strictness of the criminal formula is
22 unnecessary to enable justice to be done: and its lack
23 of flexibility in a jurisdiction where the
24 technicalities of the law of evidence must not be
25 allowed to become the master of the court could be
1 a possible disadvantage inhibiting the efficacy of the
2 developing safeguard of judicial review in the field of
3 public law."
4 That was a decision as to the standard that was
5 applicable in those particular circumstances. Then
6 Lord Justice Woolf goes on to say, in relation of course
7 to the coroner's jurisdiction:
8 "The approach of Lord Scarman to the burden of proof
9 was expressly adopting by other members of their
10 Lordships' House. I would summarise Lord Scarman's
11 guidance in this way. Technically, there is
12 a distinction between the standard of proof in civil
13 proceedings and criminal proceedings. However, although
14 there may be that technical distinction -- and
15 particularly in judicial review this makes it
16 undesirable to use the criminal standard -- from
17 a practical point of view the result in the end will be
18 the same, whichever approach is adopted."
19 Over the page, 727, just before G, he refers to
20 Khawaja again and says:
21 "As appears from the passage from the speech of
22 Lord Scarman ... which I have cited, in different
23 proceedings there are different considerations which
24 lead to what is the appropriate test which it is useful
25 to apply, having regard to the role of the
1 decision-making body who has the task of coming to the
2 conclusion on the facts. As I have sought to indicate,
3 whether in a case of a serious nature such as unlawful
4 killing you adopt the standard of proof which is
5 technically a civil standard but you elevate it because
6 of the gravity of the issue, or whether you use the
7 criminal standard of proof, the result will almost
8 inevitably be the same.
9 "I can see that there may be force in Mr MacDonald's
10 submission that perhaps in the case of a coroner's
11 inquest, theoretically speaking, the appropriate
12 standard might be said to be a very high standard indeed
13 on the basis of the civil standard of proof. However,
14 whether that be right or not, what I am absolutely
15 satisfied about is that the practical guidance which is
16 given by Lord Justice Watkins in ex parte Gray is
17 correct, bearing in mind that it is given in relation to
18 the coroner's role in respect of his duty to direct
19 a coroner's jury as to how that jury is to perform its
20 task.
21 "I am quite satisfied that, in a case where it is
22 open to a jury, as a result of a coroner's inquest, to
23 come to a verdict of unlawful killing, the appropriate
24 direction which the coroner should give to the jury is
25 the simple one that they should be satisfied beyond all
1 reasonable doubt or, as sometimes said, satisfied so
2 that they are sure. That provides clear guidance to the
3 coroner's jury which they will be able to follow, and it
4 is not necessary for them to be involved with sliding
5 scales which are more appropriate for a judge than
6 a jury."
7 Before leaving the coroner's cases, flag 7, R v HM
8 Coroner for the County of Hampshire, ex parte HM
9 Attorney-General, there is one short passage here in the
10 judgment of Lord Justice Leggatt, in the Court of
11 Appeal. It is at page 6 of the transcript, at the foot
12 of the page:
13 "It will be recalled that both at the outset of the
14 inquest and at the conclusion of his summary of the
15 matter to the jury the coroner referred to the
16 availability of a verdict of unlawful killing. He did
17 so, to judge by the notes of evidence, without any
18 reference to what the constituent elements are of
19 unlawful killing and without any reference whatever to
20 the standard of proof, which must be fulfilled before
21 such a verdict can be returned. It is plain upon
22 authority that, for practical purposes, to support
23 a verdict of unlawful killing proof is necessary beyond
24 reasonable doubt or, as it is sometimes put, such proof
25 as will satisfy the jury so that they are sure. In
1 fairness to the coroner it should be mentioned that the
2 authorities, respectively of the Divisional Court and of
3 the Court of Appeal which emphasised the need for such a
4 standard to be satisfied have been decided only since
5 the inquest with which we are concerned."
6 MR TOOHEY: Mr Lloyd Jones, what is the status in English
7 law of a verdict of coroner's jury? What consequences
8 does it have, either automatically or otherwise?
9 MR LLOYD JONES: Sir, I am not an expert in that field of
10 the law, I have to admit at the outset. My
11 understanding is that it is certainly not a verdict of
12 guilt on a criminal charge. The jury are not permitted
13 to make a finding of unlawful killing, other than in
14 respect of a person or persons unknown; they are not
15 permitted to make a finding that a person was unlawfully
16 killed by a named person or persons. So it certainly
17 does not amount to a conviction on a criminal charge.
18 It is of no binding effect on another court. It is the
19 case, as I understand it, that if a criminal prosecution
20 is contemplated, it is usually the case that the
21 coroner's inquest will be adjourned until after that
22 prosecution has taken place, but that is not necessarily
23 true of every case. There are situations where, for
24 whatever reason, the prosecution cannot be brought.
25 An example might be the inquest which followed the
1 disappearance of Lord Lucan, or it may that the
2 circumstances are such that there is no sufficient
3 evidence to bring a criminal charge against an
4 individual and, in those circumstances, unusually,
5 a verdict of a coroner's inquest may precede a possible
6 later criminal trial.
7 It is our understanding that such a finding is not
8 of any binding effect, and of course it is the situation
9 that they are not empowered to make a finding against
10 any named individual. Nevertheless, these cases
11 emphasise the importance of applying the highest
12 standard of proof to the allegation of unlawful killing.
13 While it will be our submission that it is no part
14 of the function of this Tribunal to make express
15 findings of criminal responsibility, whether of murder
16 or manslaughter or unlawful killing, it will be our
17 submission it is undoubtedly the case that you are
18 invited by many of the interested parties to make
19 findings of fact which necessarily imply criminality or
20 criminal wrong-doing.
21 It is our submission that when you come to consider
22 those questions, you should approach the matter on the
23 basis of either the criminal standard of proof or the
24 enhanced civil standard, which is enhanced to such
25 a degree that is it is indistinguishable from the
1 criminal standard.
2 Sir, we say there is a close analogy between these
3 coroner's cases and the task which this Tribunal is
4 charged with, because it is for the coroner's jury, the
5 coroner essentially to investigate the facts of what
6 occurred and to report, to make findings in relation to
7 the facts. That is essentially the function of this
8 Tribunal.
9 Sir, before I leave the authorities, I should deal
10 we briefly with the authorities that Sir Louis referred
11 to this morning and also deal with one further very
12 recent case, the decision of the Court of Appeal on 14th
13 May this year. That one, which is called In re Lu, the
14 decision of the Court of Appeal. You have it at flag 9.
15 It is right I should draw your attention to what is said
16 at paragraph 13. This again is concerned with the
17 standard of proof which is applicable in cases of child
18 abuse.
19 This is one of the two cases referred to the Court
20 of Appeal by the Attorney-General and in circumstances
21 which have received a lot of publicity; they are the
22 first two, I understand, of a number of cases that are
23 to be so referred.
24 At paragraph 13, the Court of Appeal, comprising the
25 President, Lord Justice Thorpe and Lord Justice Mantell,
1 said this, about In re H:
2 "We understand that in many applications for care
3 orders counsel are now submitting that the correct
4 approach to the standard of proof is to treat the
5 distinction between criminal and civil standards as
6 'largely illusory'. In our judgment this approach is
7 mistaken. The standard of proof to be applied in
8 Children Act cases is the balance of probabilities and
9 the approach to these difficult cases was laid down by
10 Lord Nicholls in his speech in re H. That test has not
11 been varied nor adjusted by the dicta of Lord Bingham or
12 Lord Steyn who were considering applications made under
13 a different statute. There would appear to be no good
14 reason to leap across a division, on the one hand,
15 between crime and preventative measured taken to
16 restrain defendants for the benefit of the community
17 and, on the other hand, wholly different considerations
18 of child protection and child welfare nor to apply the
19 reasoning in McCann to public, or indeed to private law,
20 cases concerning children. The strict rules of evidence
21 applicable in a criminal trial which is adversarial in
22 nature is to be contrasted with the partly inquisitorial
23 approach of the court dealing with children cases in
24 which the rules of evidence are considerably relaxed.
25 In our judgment therefore Mr Justice Bodey applied too
1 high a standard of proof in the case of re ET and the
2 principles set out by Lord Nicholls should continue to
3 be followed by the judiciary trying family cases and by
4 magistrates sitting in the family proceedings court."
5 We say this passage shows that Lord Bingham in Avon
6 and Somerset and Lord Steyn in McCann, do go
7 considerably further than In re H, than Lord Nicholls
8 and In re H. The effect of this decision -- I do not
9 know whether it is going to go to the House of Lords --
10 the effect of this decision in the Court of Appeal is
11 that in care proceedings, the test remains, as in In
12 re H. In that context, a sliding scale is to be
13 applied, but it appears from this passage the upper end
14 of the scale is not indistinguishable from the criminal
15 standard; that appears to be the reasoning, although we
16 are not told what the distinction is.
17 The passage and the reasoning do of course refer to
18 the particular needs of child welfare cases, and that
19 seems to be the driving force behind the approach which
20 is adopted by the court. It is an example of different
21 standards being adopted as appropriate, depending on the
22 nature of the tribunal and the task which it has to
23 perform, a matter to which I will return.
24 It recognises that outside child protection cases
25 the top of the enhanced scale contemplated by
1 Lord Nicholls in In re H and the criminal standard are
2 indistinguishable. But, with respect, we would suggest
3 that the dichotomy which is drawn in that paragraph
4 between, on the one hand, crime and preventative
5 measures and, on the other hand, cases concerning child
6 welfare, does not accurately reflect the position on the
7 authorities, because it is clear from the coroner cases
8 to which I have just taken you that the enhanced civil
9 standard is there, regarded as indistinguishable from
10 the criminal standard, in circumstances where a tribunal
11 is charged with making findings of serious wrong-doing
12 implying criminal responsibility. That is so,
13 notwithstanding the fact that there is no power in
14 a coroner's inquest to impose any penalty.
15 Could I mention the two authorities that Sir Louis
16 relied on this morning, without going to them. The
17 first was Mahon v Air New Zealand. Perhaps I ought to
18 go to Mahon, if your Lordships still have a copy.
19 Sir Louis here relied on a particular passage concerned
20 with the rules of natural justice. Lord Diplock here,
21 in our submission, was not addressing at all the
22 question of the standard of proof. He identified two
23 basic rules of natural justice. The first of these is
24 that the person making the finding must base his
25 decision on evidence which has some probative value.
1 That is at the foot of page 820.
2 The second rule he identified was audi al terem
3 partem. In laying down the first principle,
4 Lord Diplock is not laying down a general principle that
5 any evidence will suffice for any finding, however
6 grave. On the contrary, he is here addressing the more
7 fundamental threshold question, which is whether it is
8 possible to make a finding at all in the absence of
9 evidence of probative value, and that is the basis on
10 which the whole of the appeal was disposed of, because
11 if we look at the headnote, the most convenient place to
12 find it, we see, on page 809, and at paragraph 2 that:
13 "The rules of natural justice required the judge, as
14 a~Royal Commissioner investigating the cause and
15 circumstances of the accident, to make findings based
16 upon material that logically tended to show the
17 existence of facts consistent with those findings and,
18 if he disclosed his reasons to support those findings,
19 to ensure that the reasoning was not
20 self-contradictory."
21 We have the summary of the second requirement of
22 natural justice. I pick it up just before E:
23 "... and that since there was no material of
24 probative value that tended by a process of logical
25 reasoning to show that there had been a predetermined
1 plan of deception, and since certain witnesses had not
2 been given an opportunity to answer the criticisms made
3 against them, the order that the airline pay part of the
4 costs had been properly set aside."
5 What is happened here was that the judge, who was
6 the chairman of the Committee of Inquiry, had concluded
7 that there had been a conspiracy on the part of some of
8 the directors of Air New Zealand to lie to the inquiry,
9 and on that basis, he made an order that penalised them
10 in costs.
11 Lord Diplock and the members of the Privy Council
12 came to the conclusion that there was no evidence of any
13 probative value on which he could have come to that
14 conclusion. They describe that as the first of the
15 rules of natural justice, and that was the passage which
16 was read to you this morning by my learned friend
17 Sir Louis. It does not lay down a general principle
18 that any evidence will suffice for any finding, however
19 grave. In our submission it does not assist this
20 Tribunal in relation to the question which is now being
21 addressed.
22 Lichniak -- and we would gratefully adopt
23 Mr Toohey's comment -- this was not a matter of proof of
24 fact, but a matter of evaluation of competing interests.
25 The parole board there was required to carry out
1 a~balancing exercise between competing interest, it was
2 not a matter of proof of fact as such.
3 Sir, trying to draw the threads together, we rely on
4 the authorities to which I have drawn attention as
5 establishing the following principles: first, we say
6 that the effect of these cases has been to create
7 a sliding standard of proof in proportion to the
8 seriousness of the allegation.
9 Secondly, we say that this position has been arrived
10 at by the following steps: first, the more serious the
11 allegation, the more improbable it is that it is true.
12 The more improbable an allegation is, the greater the
13 degree of proof that will be required to overcome that
14 improbability.
15 For practical purposes, the effect of that reasoning
16 is now accepted as being, by the House of Lords, that
17 the more serious the allegation, the greater the degree
18 of proof which has to be required in order to establish
19 it.
20 Thirdly, we say that in determining the seriousness
21 of an allegation, the court has regard, not only to the
22 improbability of the matter alleged, but also to the
23 consequences of its being fact.
24 One has regard to the consequences which would flow
25 for the persons concerned of that fact being found as
1 such. Can I give the reference; it is McCann per
2 Lord Hope, at paragraphs 81 to 83. Also, they are
3 referring to Lord Phillips, the Master of the Rolls, in
4 the Court of Appeal in McCann, to the same effect.
5 Fourthly, we submit that these principles are
6 a general application before courts and tribunals. Here
7 we refer to Lord Justice Woolf in McCurbin at page 725,
8 summarising the reasoning of Lord Denning,
9 Hornal v Neuberger. In our submission they are
10 applicable, in particular, where allegations of
11 a criminal or quasi-criminal nature are made in civil
12 proceedings. That form of words comes from Lord Hope in
13 McCann at paragraph 82.
14 Fifthly, it is our submission that where the
15 allegation is of criminal wrong-doing, the heightened
16 civil standard becomes indistinguishable from the
17 criminal standard.
18 Can I give you the list of references to the
19 passages on which we rely: McCurbin per
20 Lord Justice Woolf at page 727, G to H and 728, A to B.
21 In re H, per Lord Nicholls at page 586, F to G.
22 Chief Constable of Avon and Somerset per Lord Bingham,
23 paragraph 31. Gough per the Court of Appeal,
24 paragraph 90. McCann per Lord Steyn, at paragraph 37,
25 and Lord Hope, at paragraphs 81 to 83.
1 My Lords, we say that before making a finding of
2 fact which implies criminality, this Tribunal should be
3 sure. We come to that conclusion by two routes. First,
4 we say that a finding implying criminal wrong-doing
5 should be made only if the criminal standard is
6 satisfied, but alternatively, we say that, even if the
7 civil standard is prime facie applicable, these
8 authorities, and in particular the coroner cases which
9 we say are the close analogy, make clear that in the
10 context of alleged criminal wrong-doing, it is an
11 enhanced civil standard which is indistinguishable from
12 the criminal standard.
13 It is our submission that this is the approach which
14 has been adopted by other comparable tribunals.
15 Could I refer briefly to the inquiry which was
16 chaired by Lord Scarman in 1972, and if it is possible
17 to put on the screen FS7, page 353, that may assist. We
18 see there, I hope, at paragraph 8 -- this is an extract
19 from our written submissions. We have quoted there, at
20 the top of the page, 3A.25, an extract from paragraph 8
21 of the preface to Lord Justice Scarman's report in 1972,
22 where he says this:
23 "It will be observed that on some, but not all, of
24 the matters referred to us, we have made findings. We
25 would emphasise that we have considered ourselves
1 entitled to make findings only in those instances in
2 which we have felt sure that we know the truth. We have
3 been at pains to indicate those matters on which we have
4 made positive findings."
5 I am reminded, I am grateful, that I should draw
6 attention to the words in the first line:
7 "It will be observed that on some, but not all, of
8 the matters referred to us, we have made findings,"
9 indicating that there were some issues on which it was
10 not possible for the Tribunal to draw conclusions, at
11 least to the required standard.
12 I am grateful, thank you.
13 It is said by my learned friend Mr Clarke -- he
14 accepts first of all that this is a reference to the
15 criminal standard. However, he says that the question
16 of the standard of proof may, in practical terms, not
17 have been of any great significance in that case.
18 In our submission, there is no basis for saying
19 that. The fact that Lord Scarman stressed his approach
20 at the very outset of his report is indicative, in our
21 submission, of its importance and, as Mr Clarke accepts,
22 we cannot know whether any other findings might have
23 been drawn, had Lord Scarman felt entitled to apply
24 a lower standard, and the fact is that he did not.
25 Those words, to which I have just drawn attention,
1 might suggest that that is what in fact happened, but we
2 cannot take it any further than that.
3 That was the stated approach of Lord Justice Scarman
4 in 1972.
5 Mr Justice McPherson in his inquiry into the certain
6 circumstances surrounding the death of Stephen Lawrence
7 also, in our submission, applied the criminal standard.
8 Could we have on the screen, please, FS7, page 352.
9 Could I draw attention to this again. It is the passage
10 which is cited from that report to which we draw
11 attention in our first round of submissions:
12 "Furthermore, in this area of the inquiry, it is
13 necessary to indicate that the standard of proof to be
14 applied must be the criminal standard.
15 "That is to say we can only reach a conclusion
16 adverse to the Met or individual officers if we are
17 satisfied beyond reasonable doubt that collusion or
18 corruption is established.
19 "In other areas of the case we are entitled to reach
20 conclusions upon a balance of probability; and we are
21 entitled also to voice suspicions should they be found
22 validly to exist. The standard of proof is not so rigid
23 that we cannot make findings or indicate that
24 a situation may exist otherwise than by applying the
25 well-known principles which govern litigation. But
1 where such a serious allegation as collusion with
2 criminals or corruption is made, it would be wholly
3 unfair to reach any adverse conclusion without being
4 sure that such a conclusion was justified as a matter of
5 evidence and proper inference."
6 Here we have Mr Justice McPherson applying
7 a variable standard, depending on the seriousness of the
8 issue. In general he is going to apply the civil
9 standard, as one would expect, but where really serious
10 allegations of serious wrong-doing are made, it is
11 appropriate to apply a higher standard and he makes
12 clear, in that passage at least, that he is applying the
13 criminal standard.
14 This does set out, in our submission, in the most
15 unequivocal terms, the conclusion that a finding of
16 collusion or corruption by police officers could only be
17 arrived at on applying the criminal standard.
18 We accept that there is another passage in this
19 report. If you would like it on the screen, it is FR1
20 at page 315. I should make clear that this passage had
21 not come to our attention at the time we made the
22 written submissions. It is a passage referred to by
23 Madden & Finucane in their reply, at page 16 of
24 chapter 5.2.
25 On one reading, this further passage might suggest
1 that the judge contemplated a lower standard, the
2 application of a lower standard to a finding as to
3 involvement of the five suspects in the death of
4 Stephen Lawrence.
5 That reading is based on one word:
6 "If evidence emerged which made it possible and
7 right to indicate that these suspects were for sure or
8 probably involved in the murder, the inquiry would not
9 hesitate so to indicate."
10 That reading turns on the word "probably".
11 We would suggest that this is no more than a slip
12 and, in the light of the previous passage which I have
13 just cited, we would suggest it is inconceivable that
14 the judge could have adopted such an inconsistent
15 approach to the even more serious allegations of
16 involvement in the death of Stephen Lawrence.
17 In this regard we note that Mr Mansfield, who
18 represented the Lawrence family in that inquiry, in his
19 reply submissions to this inquiry, accepts that the
20 criminal standard is that applicable to findings of
21 criminal wrong-doing.
22 Could we have on the screen, please, FR2, page 16.
23 My learned friend Mr Mansfield says this:
24 "We accept that, in coming to conclusions, the
25 Tribunal may wish to adopt a sliding standard of proof
1 dependent upon the gravity of the circumstances or
2 allegations being considered. These matters are amply
3 discussed in the latest decision of Halsbury Laws, 'the
4 more serious the allegation the more cogent is the
5 evidence required to overcome the unlikelihood of what
6 is alleged and thus to prove it.' therefore, where the
7 Tribunal is considering an allegation of murder, whether
8 on an individual basis, or unlawful killing on
9 a collective basis, wherein it was recognised by those
10 in authority that there was a risk of serious injury or
11 death to the innocent civilian population, then the
12 standard to be applied should be the criminal one."
13 That is page FR2, 16 of the submissions in reply by
14 my learned friend Mr Mansfield, on behalf of the family
15 of Mr McGuigan.
16 The North Wales Child Abuse Inquiry, which was
17 chaired by Sir Ronald Waterhouse, is really the province
18 of my learned friend Mr Elias. I do not want to
19 trespass into that. I know he is hoping to deal with
20 that when it comes to his turn to address you in
21 relation to this.
22 Could I deal with it in this way: it is our
23 understanding that, although Sir Ronald applied the
24 civil standard generally, as one would expect, he
25 applied the criminal standard to any findings implying
1 criminal responsibility.
2 It is interesting to note that in that inquiry some
3 of the alleged incidents of child abuse were at least
4 20 years old, but there was no suggestion there that the
5 standard should be lowered in order to accommodate that
6 fact.
7 Sir, that brings me to the question of whether the
8 circumstances of the present Inquiry justify or require
9 any different approach from that which we say is
10 established in the authorities. In our submission they
11 do not.
12 My learned friend Mr Clarke yesterday relied on two
13 factors in order to justify his approach. The first is
14 the nature of the Tribunal. There he stressed that the
15 Tribunal is not a court, that it does not have any
16 criminal jurisdiction; that its report pronounces no
17 conviction, and that it imposes no penalty. Those facts
18 are undoubtedly true, but these facts do not serve, in
19 our submission, to distinguish proceedings before this
20 Inquiry from those in which the principles to which we
21 have referred have been applied. In particular, as we
22 have seen, those principles have been applied in
23 relation to proceedings before coroner's inquests.
24 I have made the point already about the close analogy
25 with these proceedings.
1 Could I refer very briefly to one paragraph of one
2 further authority, it is ex parte Thompson, which is at
3 flag 8. It is one paragraph only, at the foot of page 2
4 of the transcript, where he says this -- we draw
5 attention to this because there is a striking similarity
6 between the description of the role of the coroner and
7 the role of this Inquiry:
8 "The coroner's task in a case such as this is
9 a formidable one, and no-one would dispute that; that is
10 quite apart from the difficulties which inevitably arise
11 when feelings are running high and the spectators are
12 emotionally involved and vocal. Once again it should
13 not be forgotten that an inquest is a fact-finding
14 exercise and not a method of apportioning guilt. The
15 procedure and rules of evidence which are suitable for
16 one are unsuitable for the other. In an inquest it
17 should never be forgotten that there are no parties,
18 there is no indictment, there is no prosecution, there
19 is no defence, there is no trial, simply an attempt to
20 establish facts. It is an inquisitorial process,
21 a process of investigation quite unlike a criminal trial
22 where the prosecutor accuses and the accused defends,
23 the judge holding the balance of the ring, whichever
24 metaphor one chooses to use."
25 That is Lord Lane, Lord Chief Justice, in 1982, in
1 R v South London Coroner ex parte Thompson.
2 We have seen that the principles have been otherwise
3 applied in care proceedings, although now that is
4 modified as a result of the most recent case in
5 proceedings concerning banning orders, anti-social
6 behaviour orders and also in that Scottish case,
7 Constanda.
8 We would observe at this point, although this
9 Tribunal has no power to punish individuals, the
10 consequences of a finding of grave wrong-doing on
11 Bloody Sunday would be extremely serious for the
12 individuals concerned, particularly so having regard to
13 the standing of this Inquiry, the fact that it is
14 charged to report to Parliament, the widespread
15 publicity which its findings will undoubtedly rightly
16 attract and possibility that an individual may, as
17 a result of the outcome, the report of this Inquiry, be
18 exposed to the possibility of prosecution.
19 When therefore one has regard to the possible
20 consequences for individuals of such an adverse finding
21 in the report of this Tribunal, it is our submission
22 that they are far more serious for the individuals
23 concerned than the possibility of being banned from
24 attending a football match.
25 The second matter on which my learned friend
1 Mr~Clarke relied was the approach which he says
2 Parliament must be taken to have intended the Tribunal
3 should take.
4 Mr Clarke submitted that Parliament must necessarily
5 have realised the great difficulty that this inquiry
6 would face in discovering, to the criminal standard,
7 what had happened nearly three decades before and, on
8 this basis, he submitted that Parliament must be taken
9 to have intended that the Tribunal should be free to
10 reach such conclusions as it felt able to reach,
11 provided that it identified the degree of confidence
12 with which it reached them.
13 We understand this to mean that it is open to this
14 Tribunal to make findings of grave wrong-doing when the
15 members of the Tribunal cannot be sure of that
16 conclusion.
17 In our submission, while the Tribunal is of course
18 under a duty to report to Parliament, it hardly needs
19 saying that it is also under a duty to act fairly
20 towards all of the interested parties before the
21 Inquiry, including those we represent.
22 We are disturbed if it is to be suggested that those
23 general principles and standards of fairness, which
24 would normally apply in inquiries of this sort, should
25 not be applied because of the passage of time which has
1 occurred. It is our submission that this Tribunal
2 should apply the same standards of fairness which it
3 would have applied had it been established
4 in February 1972.
5 In our submission, Parliament cannot be taken to
6 have intended that those facing allegations of very
7 serious wrong-doing should be prejudiced as a result of
8 the passage of time. If it is said that the proposed
9 course is not exceptional and that it would not be
10 unfair, then it is our submission that the reference to
11 the passage of time and to the intention of Parliament
12 adds nothing to the debate.
13 There are undoubtedly difficulties faced by this
14 Inquiry, investigating matters which occurred so long
15 ago, and I have on at least two previous occasions
16 referred to that fact and I have said that we do not
17 underestimate in any way the particular difficulties
18 which that poses for this Inquiry.
19 MR TOOHEY: Mr Lloyd Jones, could I ask you to look at
20 a particular situation and invite you to submit how far
21 the Tribunal can fairly go in accordance with the
22 principles that you have put to us?
23 MR LLOYD JONES: Can I say, I was planning to come
24 specifically to that and I hope I may be able to assist.
25 MR TOOHEY: In that case I will defer my question, because
1 it may prove to be unnecessary.
2 MR LLOYD JONES: I am not trying to duck the question at
3 all, I would be happy to attempt to answer that. I will
4 be coming to that in a moment.
5 Before leaving this point, the second ground relied
6 upon by my learned friend Mr Clarke, we do say that the
7 result of the passage of time may be that, in certain
8 areas, the Tribunal is unable to make findings on
9 particular issues of fact. That may be because the
10 Tribunal is not satisfied to the appropriate standard of
11 what occurred.
12 But if the evidence necessary to enable the Tribunal
13 to make those findings to the appropriate standard is
14 not there, then it is our submission that the Tribunal
15 should say so and should not make the finding. It
16 should not simply lower the standard in order to enable
17 it to make the finding. In our submission a paucity of
18 evidence cannot justify lowering the bar.
19 Against that background, how should the Tribunal
20 proceed?
21 The Tribunal is charged with the duty of seeking to
22 establish what happened on Bloody Sunday. It has a duty
23 to seek the truth and, in some areas, the Tribunal may
24 be able to establish the truth. It does not mean that
25 the truth will always be discoverable and, in our
1 submission, when the truth is not discoverable, the
2 Tribunal should say so. In general it will be
3 appropriate for the Tribunal to apply different
4 standards of proof depending on the circumstances and
5 the degree to which it is persuaded. Thus it may be
6 appropriate for it to report that it cannot rule out the
7 possibility that something occurred or that on balance
8 it thinks it likely or more likely than not that
9 something happened.
10 In our submission, it should express its conclusions
11 as best it can, making clear in each case the standard
12 of proof that it has applied. During the course of this
13 Inquiry it has often been said that the Inquiry is
14 conducting a search for the truth, which is undoubtedly
15 true, but it does, in our submission, make it essential
16 that in its report, the Inquiry, the Tribunal, should
17 make clear the standard which it has applied when it
18 expresses a conclusion. Otherwise there is a danger
19 that it is likely to be taken as the Tribunal's
20 definitive finding as to the truth.
21 If we may respectfully say so, there is a particular
22 need for the Tribunal to identify the standards it has
23 applied when expressing a conclusion which may
24 encapsulate a number of different findings of fact which
25 have been arrived at by the application of different
1 standards.
2 LORD SAVILLE: That was a point that Sir Louis was making
3 this morning. But you seem to be going further and
4 saying, we are simply prohibited from saying -- if we
5 come to this conclusion -- that it is probable that X
6 shot Y without any subjective or objective
7 justification.
8 MR LLOYD JONES: Sir, there there are a number of
9 propositions of fact bound up together, and when I come
10 to it, I will be making submissions in relation to that
11 very proposition.
12 LORD SAVILLE: You are saying we cannot do that. Even if we
13 explain that we think it is probable, though we cannot
14 be sure, that X shot Y without justification, of course
15 setting out the evidence on which we reach that
16 conclusion. Am I understanding you correctly when
17 saying that was simply cannot say that?
18 MR LLOYD JONES: I am not saying that, sir. I will explain
19 when I come to it; if you would like me to explain at
20 this stage what our position is --
21 LORD SAVILLE: Because in the Lawrence report you indicated
22 there was some slip by the judge when he said that.
23 Could we go back to the passage you were referring to?
24 MR LLOYD JONES: By all means.
25 LORD SAVILLE: It is I think --
1 MR LLOYD JONES: The passage to which you are referring,
2 sir, is in FR1, at page 315. Could we have that on the
3 screen, please:
4 "If evidence emerged which made it possible and
5 right to indicate that these suspects were for sure or
6 probably involved in the murder, the inquiry would not
7 hesitate so to indicate. No such evidence has come
8 before us. The situation remains as it was. These
9 youths remain the five suspects. Nothing more than this
10 is proved against them on their evidence."
11 We say that is a slip, for this reason: the judge in
12 another passage had set out fully the reasons why he
13 considered he was not entitled to come to a conclusion
14 in relation to collusion or corruption by police
15 officers, to any standard other than the criminal
16 standard.
17 It is our submission that it is inconceivable,
18 having quite clearly intended that that was the position
19 in relation to those officers, he could come to a wholly
20 inconsistent approach when considering the far more
21 serious allegation against the five suspects, who were
22 suspected of having unlawfully killed Stephen Lawrence.
23 LORD SAVILLE: Are you saying, then, had there been
24 different evidence, the judge in charge of that inquiry
25 would be wrong to have said: there is no evidence that
1 enables me to say to the required standard of proof,
2 which I regard to be the criminal standard, that the
3 police officers did this, that or the other, although,
4 for the reasons I am setting out or have set out,
5 I think it is probably the case that they did?
6 MR LLOYD JONES: Sir, it is our submission that such
7 a finding would be a finding implying criminal
8 responsibility and that it would not be open to the
9 inquiry to draw such a conclusion, unless it was
10 satisfied to the criminal standard.
11 If I come back to the example you put a moment
12 ago --
13 LORD SAVILLE: Why can it not come to the conclusion that
14 the criminal standard has not been met, although a lower
15 standard has been met or, indeed, a lower standard
16 still? For example, you could say: I am sure that X
17 shot Y without justification; I think it is probable
18 that X shot Y without justification; I think it is
19 possible.
20 You are saying that we must not say the second or
21 third of those propositions.
22 MR LLOYD JONES: Sir, for the third time, with respect, I am
23 not saying that.
24 LORD SAVILLE: If we simply say: X shot Y without
25 justification, we have to reach a particular standard of
1 proof. I do not think anything that either Mr Clarke or
2 indeed Sir Louis has said suggests otherwise. What they
3 have suggested is that we should indicate clearly with
4 what degree of confidence we have reached any particular
5 conclusion.
6 MR LLOYD JONES: Yes, sir. Could I deal first with
7 Mr Justice McPherson, and the question you asked me in
8 relation to that? You asked me why could he not have
9 concluded, on the balance of probabilities, that there
10 had been police corruption or collusion. The answer to
11 that, sir, is because it would not have been fair to the
12 individuals concerned to do so.
13 Turning to the proposition you then put to me, which
14 is closer to this Inquiry, so far as that is concerned,
15 as I recall it, why could the Tribunal not find, on the
16 balance of probabilities that A shot B and killed him
17 without justification?
18 When I come to it, sir, it will be our submission
19 that the litmus test will be whether the particular
20 finding of fact carries with it an implication of
21 criminality. It does not follow, in our submission,
22 that all findings of who fired the shot which killed an
23 individual would necessarily carry an implication of
24 criminality.
25 It is our submission that the other element bound up
1 in the proposition which you put, that an individual
2 acted without subjective justification necessarily
3 carries with it an implication of criminality and that
4 that part of the finding should be reached only if the
5 Tribunal is satisfied to the criminal standard, but, in
6 answer to the question: why should it not do it to
7 a lower standard, the answer: on authority, it is wrong
8 in principle; that it would be unfair to the individuals
9 concerned and that the approach should be one based on
10 principle and that the standard should not be modified
11 to take account of any paucity in the evidence.
12 If the evidence is not there to justify a conclusion
13 to the required standard, then the Tribunal should say
14 so and should not draw the conclusion.
15 LORD SAVILLE: But you are saying so in the example I have
16 given you. You are saying: we are not satisfied beyond
17 reasonable doubt that X shot Y without justification
18 but, for the reasons we have given, we think that it is
19 more probable than not that that was the case. At the
20 moment I do not really see anything wrong with that.
21 You have made clear that you are not satisfied beyond
22 reasonable doubt, but you have also made clear that the
23 evidence leads you to that conclusion, not to the higher
24 standard of proof, but to a lower standard of proof.
25 I do not think anyone is disagreeing with you, that
1 you cannot go around simply saying: X shot Y, without
2 justification, probably not unless you are sure that
3 that was the case. But if you are not sure that was the
4 case, but you think it is probable on all the evidence
5 that you have seen, I do not at the moment see anything
6 wrong, provided you make clear to what standard of proof
7 you are getting, I do not see anything wrong or unfair.
8 That was really, I think, Sir Louis's point.
9 It is very important, if you are making findings, to
10 make clear to what standard you have applied or what
11 standard has been satisfied in reaching the conclusions
12 you have reached.
13 I repeat, you could make a conclusion that something
14 you are sure happened, something you think probably
15 happened or something you think there is a possibility
16 that it happened. I do not at the moment see any
17 unfairness or illegality, provided you make clear the
18 standard you have got to.
19 MR LLOYD JONES: Could I deal with that?
20 The first point is that we would certainly agree
21 with Sir Louis that it is appropriate for the Tribunal
22 to indicate at each step the standard which it has
23 applied in arriving at a particular conclusion. There
24 is no ground between us there.
25 Where the gulf emerges between us, and between me
1 and my learned friend Mr Clarke, I fear, is that it does
2 not follow from that that it is open to this Tribunal to
3 draw any conclusion, however serious, provided that it
4 indicates the degree of likelihood, the standard which
5 it has applied.
6 The short answer, in our respectful submission, to
7 the point which my Lord, Lord Saville put, is that the
8 reason that it is not open to this Tribunal to take such
9 a course is precisely the same reason why, on these
10 authorities we have just looked at, it is not open to
11 a coroner's inquest to return a verdict of unlawful
12 killing --
13 LORD SAVILLE: There may be other reasons for that. In
14 a coroner's inquest you have a jury, and the jury have
15 to answer specific questions. I do not think it has
16 ever been suggested you could send the jury off and tell
17 them to come back and say: are you sure, do you think it
18 is possible, or do you think it is probable; so there is
19 a practical reason why you have to have a standard of
20 proof that you can explain simply to the jury.
21 MR LLOYD JONES: With respect, sir, the coroner's jury will
22 be directed as to the different standards to be applied
23 in respect of different verdicts. In the case of
24 suicide and unlawful killing, they must be satisfied so
25 that they are sure to the criminal standard. In other
1 cases, other than in an open verdict, the civil standard
2 applies, so there is no practical difficulty there. The
3 reason for the rule is not, with respect, that you
4 cannot ask a jury to return alternative verdicts, there
5 is no reason why you should not do that if it were
6 a proper thing to do, it is not, for the reasons
7 Lord Justice Watkins gave because it is unthinkable that
8 such a verdict should be returned other than to the
9 criminal standard.
10 LORD SAVILLE: The point I was getting at, it is going to
11 muddle a jury if you tell them: you can only come back
12 with a verdict of unlawful killing if you meet a certain
13 standard of proof, but we would like to know (if you
14 have not reached that standard of proof) whether you
15 thought it was possible or probable. That is a recipe
16 for disaster, I would have thought.
17 But it is quite different in a Tribunal of this
18 kind, provided -- I keep saying this -- we make clear,
19 on any particular finding, which I think is itself
20 likely to cause confusion, whether the "finding" is
21 something we are sure of, something we think probably
22 happened or something we think which can only be
23 described as a possible factual situation.
24 MR LLOYD JONES: Sir, with respect, the reason why
25 a coroner's jury is not left the possibility of
1 returning alternative verdicts in a case of unlawful
2 killing to a variable standard is not because they
3 cannot cope with it, not because it would confuse them.
4 They are, in fact, invited to return verdicts on
5 a number of different issues, applying different
6 standards.
7 The reason why it does not happen is because, on the
8 clearest authority, it is regarded as unfair to the
9 individuals concerned that they should return a verdict
10 of unlawful killing or suicide to anything but the high
11 criminal standard.
12 Our submission, in answer to your Lordship's
13 question as to why you should not apply a lower standard
14 in the cases of findings of fact imputing criminality,
15 is simply that it would not be fair to do so, and we
16 rely on that line of authority as establishing it.
17 LORD SAVILLE: Why is it unfair to say: we are not sure but
18 we think it is probable? Where does the unfairness come
19 in?
20 MR LLOYD JONES: The unfairness comes to the individual,
21 because there should be no such finding imputing
22 criminality to him, unless the Tribunal of fact is sure,
23 for the reasons which are set out in the coroner's
24 cases.
25 Lord Justice Watkins says it is unthinkable that
1 a coroner's inquest should return a verdict of unlawful
2 killing to any standard other than the criminal
3 standard. Lord Justice Woolf, in McCurbin, uses
4 expressions to the same effect.
5 It is our submission there is no real distinction
6 between the role which is performed by the coroner's
7 inquest and this Inquiry. You are both charged with
8 finding fact. This Inquiry in fact will be going
9 further in one respect, in that it is asked to make
10 findings against named individuals. It is not open to
11 a coroner's inquest to do that, there is prohibition
12 under the coroner's rules on their doing that, the
13 importance of which has recently been re-affirmed by the
14 House of Lords.
15 In our submission, therefore, it is all the more
16 important that this Inquiry should not take the course
17 of making a finding implying criminality or criminal
18 conduct to any standard other than the high criminal
19 standard. The consequences for the individuals
20 concerned may not involve punishment, may not involve
21 a formal condemnation in the terms of a verdict by this
22 Tribunal, but they would nevertheless be devastating and
23 it would be unfair to reach such a conclusion to any
24 standard other than the criminal standard.
25 I promised I would come to deal with the question as
1 to how the Tribunal should approach particular issues of
2 fact. I hope this may assist. Just to recap, it is our
3 submission normally it will be appropriate for this
4 Tribunal to apply whatever standard it is able to apply,
5 whatever standard it considers appropriate, but to that
6 we would identify two exceptions.
7 The first is that findings of serious wrong-doing,
8 falling short of criminality, should be made only --
9 I have in mind matters such as misconduct, disobedience
10 orders, matters such as that, and those should be made
11 only if the Tribunal is satisfied to the enhanced civil
12 standard of proof, that is on the balance of
13 probabilities, modified to take account of the inherent
14 improbability of what is alleged.
15 There there is plenty of scope for the Tribunal to
16 adopt and apply a standard as it considers appropriate
17 on the sliding scale. Each instance will be different
18 and it will be for the Tribunal to form its own view,
19 just as a judge in a civil case who has to decide
20 allegations perhaps of fraud or other serious
21 wrong-doing will fashion his own standard, on the
22 sliding scale, as he considers it appropriate.
23 Beyond that, there are findings which you are asked
24 to make, implying criminal wrong-doing. It is our
25 submission that those conclusions should only be made if
1 the Tribunal is satisfied to the criminal standard. How
2 will that work in practice?
3 It does not follow from our submission that it is
4 open to the Inquiry to make findings of fact which may
5 constitute an element of a criminal offence only if they
6 are proved to the criminal standard. It will be open to
7 the Inquiry to make a finding on the balance of
8 probabilities, for example, that when B, let us say, was
9 killed he was not carrying a weapon and was not doing
10 anything that was threatening. We accept that you could
11 draw such a conclusion on the balance of probabilities,
12 notwithstanding the fact that it would be material, in
13 a criminal trial, to the question as to whether there
14 was justification.
15 However, it is our submission that different
16 considerations would apply to a finding that A, who shot
17 and killed B, acted without justification in firing.
18 Can I deal with that element of it, that A acted without
19 justification in firing.
20 It would be open to this Tribunal to make a finding
21 that A killed B without justification, that when he
22 fired the shot he acted without justification. However,
23 before it could do so, the Tribunal would, in our
24 submission, have to be satisfied to the criminal
25 standard that the conduct in question was not justified,
1 either objectively or having regard subjectively to the
2 possibility that a mistake might have been made.
3 Such a finding would impute criminality to A. It is
4 a finding of a guilty mind. It may even be tantamount
5 to a finding of the commission of a criminal offence,
6 and such a finding should not be made, save where the
7 Tribunal is sure that the conduct was not justified. It
8 is our submission that the higher standard applies here,
9 for the reasons we have developed.
10 What about the other element of the proposition
11 which my Lord, Lord Saville put to me? What approach
12 should the Tribunal adopt to the question which is going
13 to be a critical question in so many instances, of who
14 shot whom?
15 It is our submission that the seriousness of such
16 a finding will depend on the particular circumstances of
17 each case. In normal circumstances, of course, it would
18 be regarded as a finding imputing criminal conduct to
19 find that A had fired a shot which killed B.
20 However, in the unusual circumstances of this case,
21 it may not necessarily be so. It seems to us that the
22 answer will turn on the precise circumstances. Soldiers
23 on duty that day were entitled to use weapons in
24 self-defence, for the defence of others and for the
25 prevention of crime. In the circumstances of
1 Rossville Street on Bloody Sunday, we doubt whether it
2 is necessarily in every case an imputation of
3 criminality or of serious misconduct to find that
4 a soldier fired, even if that shot hit a particular
5 individual. Your Lordships will be well aware of the
6 fact that here soldiers have admitted to firing aimed
7 shots, and most of the soldiers claim to have hit the
8 target at which they aimed.
9 So employing the alternative approach of
10 Lord Nicholls in In re H, in a number of cases it is not
11 improbable that a soldier may have acted under a mistake
12 or may have hit a target other than that at which he was
13 aiming.
14 On the other hand, there may be instances where
15 a finding that A shot B will inevitably carry an
16 imputation of criminality or grave wrong-doing. For
17 example, a finding that, let us say, A shot B in
18 circumstances where B was lying defenceless on the
19 ground necessarily imputes criminality to A and must, in
20 our submission, therefore be proved to the criminal
21 standard. What it is about this situation which gives
22 rise to the imputation of criminality, is what it says
23 about the presence or lack of justification.
24 Employing the alternative approach of Lord Nicholls
25 in In re H, we would say that the greater degree of
1 improbability that an individual would behave in such
2 a way, necessarily requires the application of a higher
3 degree of proof to overcome that improbability. What is
4 significant here is what the finding says about the
5 presence or lack of justification, a matter which
6 necessarily goes to criminality and a matter on which we
7 say the only fair standard to apply is the criminal
8 standard.
9 My learned friend Mr Clarke asked how, on the
10 basis --
11 LORD SAVILLE: When you talk about "the criminal standard",
12 are you talking about who has the burden of proof on
13 a possible self-defence defence?
14 MR LLOYD JONES: No, sir, I am not referring to that at this
15 stage. What I am referring to is the need for the
16 Tribunal to be satisfied, before it makes a finding
17 imputing criminality, to be satisfied so that it is sure
18 of its conclusion.
19 LORD SAVILLE: If you get a soldier who admits that he shot
20 a bullet, that he aimed the bullet and he believed he
21 hit the person he had hit, but that he was doing so in
22 self-defence or in defence of his colleagues, that
23 question then comes to the fore, does it not?
24
25
1 MR LLOYD JONES: It certainly comes to the fore and it is
2 a matter which we accept is a matter on which the
3 Tribunal should rule, if it can. But it can only rule,
4 in our submission, if it is satisfied to the required
5 standard. It is, of course --
6 LORD SAVILLE: That must mean, in that example, satisfied to
7 the required standard that the defence of self-defence
8 is unsustainable.
9 MR LLOYD JONES: Yes, I think that is right, and Mr Clarke
10 yesterday referred to the Tribunal being wary of
11 embarking -- I cannot remember his precise words, but
12 I think he used the word "wary of embarking" on an
13 investigation into the subjective mind of individuals,
14 but it may well be you have to do that in order to draw
15 conclusions as to whether an individual was justified,
16 because justification is not limited to objective
17 justification, but also extends to subjective
18 justification.
19 It is right that the Tribunal should address these
20 questions in drawing its conclusions as to the
21 responsibility. It is also right, in our submission,
22 that the Tribunal, in doing so, should apply the
23 criminal standard and it should only make a finding that
24 there was no justification for the conduct in question
25 if it is satisfied to the criminal standard that that is
1 so.
2 MR TOOHEY: That would not, I gather, Mr Lloyd Jones,
3 preclude the Tribunal from reaching a finding that
4 Soldier A shot civilian B on the day, full stop.
5 MR LLOYD JONES: Correct, I accept that. Subject to the
6 point I made a moment ago, that it may be that the
7 particular circumstances in which that came about would
8 be such as to give rise to an imputation of criminality,
9 the example of shooting someone defenceless on the
10 ground, for example, in which case we would say that
11 a higher standard would apply.
12 We accept there will be some circumstances in which
13 it would be appropriate for the Tribunal to draw the
14 conclusion that A fired the shot which killed B and to
15 draw that conclusion on the balance of probabilities.
16 My learned friend Mr Clarke asked how, on the basis
17 of any approach other than his favoured approach, the
18 Tribunal would be able to report its views, its views of
19 the evidence on issues on which it was not sure.
20 In response we would make the following points.
21 First, the problem which Mr Clarke identifies is not the
22 product of the standard of proof which is applied. It
23 will arise whenever the evidence analysed does not
24 establish the alleged fact to whatever standard has been
25 chosen.
1 Secondly, we would say that, in any event, the
2 problem is not a real one. Where the Tribunal cannot
3 conclude that it is satisfied of a fact to the requisite
4 standard, it is our submission that it should say so.
5 That does not prevent the Tribunal from setting out,
6 analysing or evaluating the evidence it has received.
7 Having done that, however, it is our submission it
8 must conclude that the evidence does not enable it to
9 draw the conclusion that the fact in issue has been
10 proved to the appropriate standard. In our
11 submission --
12 LORD SAVILLE: That sounds very similar to what I was
13 putting to you. Let me read back what you have said:
14 "Where the Tribunal cannot conclude it is satisfied
15 of a fact to the requisite standard, it is our
16 submission that it should say so."
17 I do not, speaking personally, disagree with that.
18 You are saying, unless I have got you wrong: we are not
19 able to say: we are not sure beyond reasonable doubt
20 that A shot B without justification, which is, according
21 to what you have just said, something we should say, but
22 are not able to go on to say: but we think that it is
23 probable that he did so.
24 MR LLOYD JONES: That is my submission, sir, yes. And the
25 reason why you should not go on to hold it proved to the
1 lower standard is because it would be unfair to do so.
2 LORD SAVILLE: Nobody is holding anything proved, we are
3 simply expressing our view that we think that is
4 probably the case.
5 MR LLOYD JONES: No, sir, with respect, you are a tribunal
6 charged with the duty of finding the facts of what
7 occurred --
8 LORD SAVILLE: It would be wrong for us to say: we think it
9 is probable to say that A shot B without justification,
10 but we must make quite clear that we are not satisfied
11 to the standard to enable us to make a finding that we
12 are sure it is so, that would be objectionable.
13 MR LLOYD JONES: It would be objectionable for the Tribunal
14 to find that an individual acted without justification,
15 unless it was sure that was right, because of the
16 seriousness of the finding.
17 MR TOOHEY: It is a bit more than that, I think, in the way
18 that you are putting it, Mr Lloyd Jones. In the
19 Chairman's example there are really two elements. There
20 is the element of killing the individual and there is
21 the element of no justification.
22 The first, I understand you to be saying there is no
23 reason why the Inquiry should not make a finding of
24 fact, having regard to the seriousness of the matter,
25 but not necessarily reaching the criminal standard that
1 A shot B.
2 MR LLOYD JONES: That is right, subject to the possibility
3 that there will be some circumstances where the very
4 conduct itself would necessarily impute criminality and
5 therefore the higher standard should apply, subject to
6 that point, yes.
7 MR TOOHEY: If the Tribunal were to go on to find that A
8 shot B without justification, that, you would say, and
9 I make it quite clear I am not expressing any view on
10 this, you would say requires the Tribunal to be
11 satisfied beyond reasonable doubt of the absence of
12 justification.
13 MR LLOYD JONES: I do, and the reason I say that is that
14 that finding necessarily imputes criminality and it
15 would be fair to reach such a conclusion only if you
16 were sure.
17 MR TOOHEY: Are you going on to give other illustrations?
18 MR LLOYD JONES: I was not planning to, sir.
19 MR TOOHEY: Because I had one that I wanted to offer you
20 some time ago.
21 It arises in this context: on the day a civilian is
22 shot and it is apparent that he or she was shot by an
23 Army bullet, it is also apparent that at the time the
24 person was shot there were only two soldiers, let us
25 say, in the vicinity who could possibly have been
1 responsible for firing on that day. As I understand
2 your submission, you would say there is nothing to
3 prevent the Tribunal finding that the civilian was shot
4 by a soldier.
5 Let us take the next step; if the Tribunal were to
6 say: we cannot be satisfied beyond reasonable doubt that
7 it was A rather than B, but we are satisfied beyond
8 reasonable doubt that it was A or B; is that a finding
9 the Tribunal can make?
10 MR LLOYD JONES: Yes.
11 MR TOOHEY: What if it is not satisfied beyond reasonable
12 doubt that it was A or B, but that it was probably one
13 rather than the other, can we make that finding?
14 MR LLOYD JONES: Yes.
15 MR TOOHEY: Again, you would say, I take it, subject to the
16 question of criminality, in the sense that you have used
17 that term. Thank you.
18 LORD SAVILLE: What if we continue with that example? We
19 come to the conclusion, if you like, that we are sure
20 that it was A or B, Soldier A or soldier B -- I am not
21 using the classification -- we are also sure, from
22 a large amount of evidence, that neither of those
23 soldiers could have seen any justification for shooting
24 the individual and, accordingly, one or the other -- we
25 are unable to say which -- shot the individual without
1 justification; could we say that?
2 MR LLOYD JONES: Yes.
3 LORD SAVILLE: Could that not be said to be unfair to A and
4 B?
5 MR LLOYD JONES: No, sir, because you are satisfied, so that
6 you are sure, that the bullet was fired by one or other
7 of them; and you are satisfied, so that you are sure,
8 that each of them, if he acted, acted without
9 justification.
10 LORD SAVILLE: What if it was the case --
11 MR LLOYD JONES: Just subject to one possibility, subject to
12 this: the Tribunal might be concerned about the fairness
13 of investigating the guilty mind of an individual, even
14 if it were not satisfied, so that it were sure, that
15 that individual had acted.
16 I think what we can say is this, that the examples
17 which have been put demonstrate that the possible
18 combinations of circumstances are myriad. It is not
19 possible to anticipate more, of course, but the
20 principle which should be applied --
21 LORD SAVILLE: What about findings based on the evidence of
22 soldiers that they saw people in the crowd throwing nail
23 bombs or using rifles? Have we to be sure of that
24 before those people are treated, as you put it,
25 unfairly?
1 MR LLOYD JONES: What is sauce for the goose is sauce for
2 the gander, and the submission that I make about the
3 Tribunal reaching conclusions implying criminality
4 applies not only to those we represent, but to everybody
5 else who was involved with the events of Bloody Sunday,
6 I have to accept that.
7 There is no reason why the Tribunal should not reach
8 a conclusion on the balance of probabilities as to what
9 an individual in the crowd -- I am sorry, the question
10 you put do me is the allegation that an individual was
11 armed with a nail bomb; is that right? Forgive me, I am
12 not sure what the example was.
13 LORD SAVILLE: Let us take the evidence of some of the
14 soldiers, that they saw, if we take the barricade
15 example, some individual crawling away with what he said
16 he was sure was a rifle and shot him and was sure he had
17 hit him. It may be possible for us, from other
18 evidence, to determine who that individual was. If that
19 individual was indeed in possession of a rifle that
20 would be at the time and indeed today a very serious
21 criminal offence. Do we have to be sure beyond
22 a reasonable doubt that that individual had a rifle?
23 MR LLOYD JONES: In considering the question of the conduct
24 of that individual, you should not make the finding,
25 unless you were satisfied so that you were sure, that he
1 was in possession of a weapon.
2 However, in considering the question as to whether
3 a soldier was justified in acting in a particular way,
4 you would be required to take account of the possibility
5 that that individual was bearing a weapon; it would be
6 necessary, in those circumstances, for you to consider
7 the other side of the coin --
8 LORD SAVILLE: Could we find as a fact that that individual
9 possibly had a weapon?
10 MR LLOYD JONES: In considering his conduct you should draw
11 the conclusion that he was armed only if you are
12 satisfied so that you are sure. In considering the
13 conduct of a soldier who may have shot him, you should
14 address that on the basis as to whether it was possible.
15 The issue there is whether it was possible that he
16 was confronted by a man who was armed.
17 LORD SAVILLE: Surely, Mr Lloyd Jones, that produces an
18 impossible situation, because there we might end up with
19 a finding that a named individual possibly had a rifle,
20 and that is, as I understand it, entirely contrary to
21 your submission that we cannot do that, because to do
22 that would be to depart from the standard of proof of
23 a serious criminal offence which undoubtedly would be
24 committed by a man with a rifle, and so is that not
25 something that can be said to be entirely contrary to
1 your submissions of the last hour?
2 MR LLOYD JONES: No, because that is simply a situation in
3 which a factual issue may be relevant in two different
4 ways and two different sets of circumstances. In one
5 set of circumstances you would be able to say: we are
6 not satisfied, so that we are sure, that the individual
7 was carrying a weapon.
8 However, the nature of the allegation made against
9 the soldier does require you to consider the further
10 question as to whether it was possible that he was
11 bearing a weapon or whether it is possible that the
12 soldier could genuinely have believed that he was
13 bearing a weapon.
14 LORD SAVILLE: The latter is different from the former, but
15 you seem to be inviting us in the examples you have
16 given us that we are entitled to make a finding that
17 a particular identified individual was possibly carrying
18 a rifle. Surely that individual can say, as you have
19 been saying to us this afternoon, that is quite unfair;
20 you must not say that, you can only come to a conclusion
21 that I was in possession of a rifle if you are sure that
22 was the case; you are not entitled to say it is possibly
23 the case, you are not entitled to say it was probably
24 the case. You can only say it if you are sure it was
25 the case.
1 MR LLOYD JONES: In the second situation the Tribunal would
2 draw a conclusion that you could not be sure that the
3 soldier acted without justification.
4 It is a situation in which one factual matter is
5 relevant in different ways, in different issues.
6 Sir, it is our submission that the standard of proof
7 which should be applied should be commensurate with the
8 gravity of the allegation and the seriousness of the
9 consequences and should not be dictated by any paucity
10 of evidence in any given situation. Those are our
11 submissions, sir.
12 LORD SAVILLE: Mr Elias.
13 Submissions by MR ELIAS
14 MR ELIAS: Sir, could I take the Tribunal to FS8.10, which
15 are the original Aitken submissions. Paragraph 12
16 through to 15, over the page, but if we stay on this
17 page for the moment, we set out our submissions.
18 Paragraph 12 in relation to finding implying criminal
19 conduct and in paragraph 13 in findings less than
20 criminal conduct, if I can put it into shorthand, and we
21 do not resile from the submissions that we made there.
22 I say that, sir, in prefacing the few remarks that
23 I wish to make in supporting the submissions of my
24 learned friend Mr Lloyd Jones. May I perhaps take
25 myself a little out of order by going back to the
1 example that you were putting to Mr Lloyd Jones not
2 a moment or two ago in relation to the finding of the
3 individual crawling away with the rifle. We do submit,
4 as Mr Lloyd Jones does, we say there is no logical
5 difficulty about it, that the Tribunal should come to
6 conclusions of implying criminal offence, criminal
7 conduct against any individual only if it is sure and
8 that will apply across the board.
9 Of course, it is not necessary, and perhaps it does
10 not advance the Tribunal's report one jot, for the
11 Tribunal to report the fact, if it were the fact, that
12 the Tribunal possibly thinks that civilian X had
13 a rifle. The important point, in this regard, is,
14 looking at the mind of the soldier, we find that he may
15 have been justified or have believed himself to have
16 been justified in firing.
17 So the question of whether a finding of possibility
18 has to be made in our submission simply does not arise.
19 In any case, we submit where there is to be an
20 imputation of criminality, it is the bedrock of our
21 legal system and always has been that the allegation
22 should be made, provided it can be proved to the
23 criminal standard.
24 LORD SAVILLE: The problem with the example I was putting to
25 Mr Lloyd Jones is that you have, in that instance,
1 applying the logic, to look at the soldier's evidence as
2 to whether he had, what, a reasonable belief?
3 MR ELIAS: That would be one of the factors, of course.
4 LORD SAVILLE: That reasonable belief cannot be supported by
5 any evidence that the man in question had a rifle,
6 unless in fact he did have a rifle, or we are sure he
7 did, and if we are sure he had a rifle, the reasonable
8 belief of the soldier becomes irrelevant.
9 That is the problem, because if you start saying --
10 and that is possibly a problem for the soldier. It
11 would be, in a sense, fairer to the soldier to say: we
12 are not sure that the soldier is right that this man had
13 a weapon. It is possible he did, but we are not sure.
14 But according to Mr Lloyd Jones, we cannot say that
15 because to say that would be to impugn a criminal
16 conduct on the part of the individual in question below
17 what Mr Lloyd Jones has suggested is the requisite
18 standard of proof.
19 MR ELIAS: If one looks at the practicalities, with respect,
20 sir, if one looks at the practicalities, why is it that
21 the Tribunal has to make the finding that you now
22 postulate? If the position is that civilian X possibly
23 had a weapon, the Tribunal should make no finding about
24 it. It implies, as you yourself, sir, said a moment or
25 two ago, a serious criminal offence.
1 If it is the case, however, that it is the view of
2 the Tribunal that that may be the position, then,
3 looking at the soldier's state of mind, the Tribunal is
4 plainly able to say: well, if there might have been
5 a weapon there, we cannot be satisfied that the soldier
6 fired without justification, or believed that he had
7 justification. If we cannot be satisfied as to that,
8 plainly no blame attaches to him.
9 LORD SAVILLE: If you turn it round, the individual in
10 question can say: the Tribunal has gone entirely
11 contrary to Mr Lloyd Jones's submission because it has
12 made a finding that I might have had a weapon.
13 MR ELIAS: You are not going to declare as a Tribunal that
14 the individual crawling away had a weapon, because there
15 is no reason for the Tribunal so to do.
16 LORD SAVILLE: We have just said on your example, Mr Elias,
17 that the Tribunal may make a finding that he may have
18 had a weapon.
19 MR ELIAS: The Tribunal may conclude that. It does not have
20 to make a finding or report it, of course. It has to
21 look at the position, in relation first of all in
22 relation to the person crawling and as to whether he
23 possessed a firearm and deal with that and come to its
24 conclusions, and if its conclusions do not allow it to
25 make any conclusion, to say so, or if he did not have
1 a weapon, so to say. In dealing with the soldier, the
2 issue will become what was in the mind of the soldier at
3 the relevant time. There is a range of factual
4 conclusions which the Tribunal will have to look at.
5 LORD SAVILLE: I do not really think that has answered my
6 question. Are we or are we not entitled to make
7 a finding -- "finding" is a bad word. Are we or are we
8 not entitled to express our view that the individual
9 that the soldier shot may have had a weapon, although we
10 are not sure that that was the case?
11 MR ELIAS: We submit plainly not. Plainly not because --
12 LORD SAVILLE: When we get to the soldier, we have to
13 proceed, do we, on the hypothesis that we cannot say
14 anything about whether or not his belief was reasonable
15 for fear of it being suggested, if we conclude that his
16 fear was reasonable, that the only basis for saying his
17 fear was reasonable, was that the individual may have
18 had a weapon?
19 MR ELIAS: If the question, sir, is: was the soldier acting
20 with justification or no, and that is the question the
21 Tribunal has to determine, the Tribunal can so report,
22 and any issue as to the precise detail, which we submit
23 would not advance matters factually in reporting to
24 Parliament or the public one jot, would not in any way
25 be offended.
1 We submit there are not, with great respect, sir,
2 logical or practical difficulties, but it is, because it
3 is a bedrock of our legal system, it always has been,
4 that criminal allegations made must be proved beyond
5 reasonable doubt and all authority says so, it matters
6 not soldiers cannot be convicted of a criminal offence
7 before this Tribunal. If the allegation is so serious
8 as an allegation of unjustified killing, for example,
9 then, we submit, the criminal standard plainly should
10 apply.
11 Sir, yesterday Mr Clarke asked what was the harm in
12 making a finding of criminal conduct on the balance of
13 probabilities. It is a question that you yourself have
14 posed again today, provided the Tribunal makes clear the
15 standard of proof.
16 We say the answer to that is twofold. Firstly, such
17 a course would conflict with the principles that I have
18 set out very briefly. The criminal standard of proof is
19 appropriate because it ensures justice and fairness.
20 Secondly, and for the reasons that I began to
21 enlarge upon a moment or two ago, we question why the
22 Tribunal would wish to make findings implying criminal
23 conduct to a lesser standard than that which normally
24 pertains, particularly when we submit if one has regard
25 to the fact that nothing prevents it from making
1 findings of fact on the balance of probabilities, such
2 as the picture of what actually occurred, whether it is
3 the truth, pure and simple, as Mr Clarke referred to it,
4 or the best we can do, if it cannot be the truth, so
5 that you are sure, in either event, that can be openly
6 and comprehensively reported to Parliament.
7 We submit that the latter point is an important
8 consideration, because it invalidates any suggestion
9 that applying the criminal standard of proof prevents
10 this Tribunal from reaching meaningful findings.
11 Applying the criminal standard of proof to issues that
12 directly impute criminal misconduct would not, in the
13 circumstances of this Inquiry, and Mr Toohey has raised
14 a number of points which in our submission demonstrate
15 this -- applying the criminal standard of proof would
16 not prevent this Tribunal from reporting on the
17 important, primary facts of what happened and, where it
18 could, what was the state of mind of the individual.
19 What is the result of saying: we find such and such
20 a criminal allegation, on the balance of probabilities?
21 In your report, sir, with respect, we submit that even
22 if the words "on the balance of probabilities" were
23 expressly stated each time such an allegation were made,
24 such a finding would be reported in a different way,
25 that an individual was unjustifiably killed by
1 a soldier, when in fact the Tribunal's state of mind may
2 be that it thinks it no more than a 51 per cent
3 probability. What would be the utility of such
4 a finding? How would it help Parliament?
5 More importantly, what conceivable justification can
6 there be for permitting findings of, for example,
7 unjustified killing to be published in a report which
8 will have been much heralded over these years as
9 seeking, and will doubtless purport to portray the
10 truth, if in reality there are doubts about such
11 findings?
12 Forgive me for repeating it, but we submit, with all
13 the force we can muster, fairness and justice, and the
14 basic tenets of our legal principles, demand that
15 allegations should not be bandied about unless and until
16 they are proven to the appropriate standard. The
17 responsibility on a Tribunal not to abuse its position
18 of privilege in this regard is obvious.
19 Mr Clarke said yesterday Parliament must surely have
20 intended that the Tribunal should be at liberty to
21 report whatever conclusions it was able to reach and
22 with what degree of assurance it was able to reach them.
23 Fundamentally we do not disagree with the
24 proposition, but we would insert the important proviso,
25 that there is no reason whatsoever to suppose that
1 Parliament intended that the usual safeguards applying
2 to an individual subject to allegations of criminal
3 conduct be abrogated and that findings, for example, of
4 unjustified killing be permitted to be published when it
5 is known that real doubt exists.
6 To permit the argument that such findings by the
7 Tribunal would not amount to a conviction, to answer the
8 point, whilst undoubtedly, we would accept, strictly
9 true, would be, we submit, the real triumph of form over
10 substance.
11 Nothing prevents the Tribunal from finding, if it so
12 concludes, that the primary facts are that civilian Y
13 was unarmed, that there was in fact no gunman, no nail
14 bomber proximate to him and the Tribunal can state those
15 matters applying the civil standard, or state them to
16 the criminal standard, if it is so sure. But it should
17 not go further, if it is making criminal allegations,
18 unless it is sure.
19 Again, yesterday Mr Clarke said this:
20 "The Tribunal may think that Parliament, the
21 Secretary of State and the families, not to mention the
22 taxpayer, would justifiably gasp if the Tribunal might
23 be compelled to say, in the case of any given victim, we
24 cannot be sure who murdered him, we think it highly
25 probable that it was someone whom we can identify, but
1 by law we cannot or by our own self-denying ordinance,
2 we will not tell you who that is."
3 It is a staggering proposition, in our submission.
4 I yield to no-one in my admiration for Mr Clarke and his
5 determination to do what is right, but say two things
6 about what he said here.
7 Firstly, thinking parliamentarians and taxpayers, we
8 submit, would be the first to gasp at the suggestion
9 that without recourse -- and from this Tribunal there
10 would be none, we submit -- without recourse, findings
11 of serious criminal conduct, let alone of unjustified
12 killing, were now to be allowed to be made publicly
13 against an individual when it was known by those making
14 it that real doubt existed.
15 LORD SAVILLE: That is, with respect, a slightly tendentious
16 way of putting it. I think nobody has suggested that we
17 should do other than express the degree of conviction or
18 assurance that such and such an event took place.
19 I still find difficulty in suggesting that it is
20 unfair or wrong that if we think, for example, that
21 proof falls far short of that required in a criminal
22 case to enable us to say we are sure that X shot Y
23 without any justification, nevertheless it seems to us
24 that it is more probable than not that that was the
25 case.
1 We have made absolutely clear that the criminal
2 standard has not been met, but looking at the matter and
3 defining our assurance, we are sure that more probable
4 than not, that is what happened.
5 MR ELIAS: The objection, we submit, to that, if I can put
6 it bluntly and directly, is that that is no more nor
7 less than an allegation made by the back door to
8 a standard lesser than the criminal standard. That is
9 the objection to it. That is why we submit thinking
10 parliamentarians, taxpayers and citizens in this country
11 would gasp, if the realisation were that now, under our
12 law, criminal allegations can be made, albeit by the
13 back door. How do you suppose, is perhaps the question
14 that ought to be asked, the Daily Chronicle is going to
15 report the Tribunal's finding on the balance of
16 probabilities? Is the headline going to run: X
17 unjustifiably killed by soldier Y, or is it going to
18 run: on the balance of probabilities, with all the
19 reservations they set out in their report, the Tribunal
20 found ...
21 One might ask the question: if indeed there is no
22 injustice in making an allegation on a lesser burden,
23 why do we not ask a jury in a criminal trial? Why
24 guilty or not guilty? Why not: do you think it is
25 probable? We do not do it because we do not bandy
1 allegations, and a man is not guilty until he is proven
2 guilty and allegations should not be made of that
3 kind --
4 LORD SAVILLE: We do get a not proven verdict in Scotland.
5 MR ELIAS: We do, but that does not imply guilt.
6 LORD SAVILLE: It does not imply innocence either, Mr Elias.
7 MR ELIAS: It does not imply guilt, and our objection and
8 the core of our submission here is that the Tribunal
9 should not make any finding implying guilt, save to the
10 criminal standard.
11 MR TOOHEY: That, I think, Mr Elias, has its own
12 difficulties, and I think it arises in the context of
13 paragraph 12 in which you say in any case where a
14 finding implying criminal conduct is to be made.
15 I understand that that is in effect a shorthand method
16 of expression, or at least I take it to be, but the
17 Tribunal is not like a jury, required to find guilt or
18 non-guilt.
19 It is required to find facts and arrive at
20 conclusions, and the implication of criminal conduct can
21 be quite a -- it may be straightforward or it may be
22 rather difficult; it may involve more than one step.
23 I suppose really all that this amounts to is saying that
24 just to speak of implying criminal conduct tends to
25 conceal some of the difficulties that arise,
1 particularly in this case.
2 MR ELIAS: There are, of course. If I may say so
3 respectfully, I entirely agree with what you, sir, have
4 said. There are difficulties. There are factual
5 difficulties. There are, of course, a range of findings
6 that will imply criminal conduct relating directly and
7 relevant to issues raised in this Tribunal.
8 But the fact that there are difficulties, the fact
9 that there are a range, the fact that there are factual
10 difficulties does not mean that the standard by which
11 these things are proved should be in any way reduced.
12 The fact that it is this Tribunal, as I have
13 submitted just a few minutes ago, the fact that it is
14 this Tribunal in a report, which will have been long
15 awaited, which will no doubt get much publicity, that in
16 its report, it is making, as I will put it, an
17 allegation by the back door on the balance of
18 probabilities, does not answer the point, because there
19 is no sentence to be attached to it, because it is not
20 a verdict, it has, and will have and would have huge
21 consequences, and we say the responsibility of the
22 Tribunal is to bear that in mind and not to make such
23 allegations, implying or imputing criminal conduct,
24 unless the Tribunal is sure.
25 LORD SAVILLE: Could I ask you how much longer you are going
1 to be, because I would quite like to give our LiveNote
2 writer a short rest if you are going to be more than
3 a few minutes?
4 MR ELIAS: In one minute I was just going to come on to the
5 North Wales Tribunal. Perhaps I shall be 10 minutes,
6 but not longer.
7 LORD SAVILLE: Well, I think we will have a short break now.
8 (3.10 pm)
9 (A short break)
10 (3.25 pm)
11 MR ELIAS: Sir, may I turn then to the North Wales Tribunal
12 report. We submit that it provides support for the
13 propositions that we make.
14 Madden & Finucane's submissions on this matter are
15 to be found at FR1, 313. I wonder if they could be put
16 on the screen for a moment. FR1.313. They assert at
17 paragraph 5.2.2.26:
18 "The [North Wales Child Abuse Inquiry] specifically
19 addressed the standard to be applied in circumstances
20 where the allegations made were criminal allegations of
21 the physical and sexual abuse of children. The Tribunal
22 concluded that:
23 "'The proceedings before the Tribunal have been
24 civil proceedings rather than criminal proceedings and
25 the standard of proof to be applied is that applicable
1 to the former.'"
2 That is an accurate quote, of course, from the
3 Waterhouse report. Doubtless through oversight,
4 Madden & Finucane failed to mention three important
5 further features which are readily apparent from that
6 Tribunal's report.
7 First, the Tribunal stated that although applying
8 the Nicholls civil standard, it in fact was sure of the
9 correctness of the findings of fact that we make in our
10 report. That is to be found at paragraph 6.05 of the
11 Tribunal's report, you have it in tab 10 of the bundle
12 of authorities, page 56 of the report, paragraph 6.05.
13 The Tribunal was saying it was sure of the correctness
14 of the findings of fact that it made.
15 Similarly, in paragraph 606, over the page of the
16 report, the Tribunal stated that:
17 "The nature and volume of evidence from former
18 children in care have been such as to enable us to reach
19 firm conclusions about the pattern of behaviour of the
20 more prominent SLRs ..."
21 They had a different meaning in that inquiry,
22 "Salmon letter recipients":
23 "... and we state those findings in our report.
24 Secondly, in its report, the North Wales Child Abuse
25 Inquiry made findings that named persons who had
1 sexually abused children, but they had already been
2 convicted by a criminal court of an offence or offences
3 of sexual abuse.
4 Could I take you, sir, to the Tribunal's report at
5 609, found at page 58 of the report. I read the whole
6 of that relevant paragraph:
7 "We should say at once that we accept without
8 reservation the gravity of a finding of sexual abuse and
9 it would be apparent from our report that there are very
10 few such findings in our report, except those that we
11 make in respect of persons who have already been
12 convicted of sexual offences against children in care.
13 "The reasons for this are that the allegations
14 against other specific individuals have in general been
15 very few in number, have not been corroborated, and are
16 so distant in time that in our view no-one could safely
17 conclude that abuse had occurred without the risk of
18 grave injustice to the alleged perpetrator.
19 "In respect of those individuals who have already
20 been convicted of relevant offences against children in
21 care, however, our approach has been, in the absence of
22 a successful appeal, the convictions are evidence that
23 the offences were committed and it has not been within
24 our jurisdiction to question the correctness of those
25 convictions, unless possibly fresh evidence were to be
1 tendered going to the root of the convictions."
2 The third point, we submit, overlooked by
3 Madden & Finucane, is that in the case of Salmon letter
4 recipients who have been charged with, but acquitted of,
5 criminal offences of child sexual abuse, the Tribunal
6 did not consider it appropriate to question the
7 correctness of verdicts of juries in those criminal
8 cases.
9 I do not take you to it, but you will find it in the
10 report at paragraph 6.11. This, despite the
11 self-evident fact that an acquittal by a jury in
12 a criminal case would not have been a bar, as a matter
13 of logic, to a finding by the Tribunal on the balance of
14 probabilities that such an offence had been made out.
15 Thus the reality of Waterhouse, we submit, is that,
16 whilst it adopted the civil standard as that generally
17 applicable to its proceedings, and reporting to
18 Parliament fully and appropriately, the North Wales
19 Inquiry's approach reflected a distinct disinclination
20 to make finding of criminal conduct unless the Tribunal
21 was sure.
22 In effect, we submit, sir, this is precisely the
23 stance which we invite this Tribunal to take.
24 Sir, those are our submissions.
25 LORD SAVILLE: Thank you very much.
1 Sir Allan.
2 Submissions by SIR ALLAN GREEN
3 SIR ALLAN GREEN: Sir, we adopt what has been said by my
4 learned friends, Mr Lloyd Jones and Mr Elias.
5 Sir, the only matter that I was going to mention,
6 and it may be that I have misunderstood or failed to
7 follow what has been said, was this: during the course
8 of argument, sir, you referred to reasonableness of
9 belief and of course that is something that the Tribunal
10 will want to consider in a variety of situations. Sir,
11 the only qualification I make, if I may, with the
12 greatest respect, is that the test, of course, in
13 relation to self-defence, is one of honest belief, or
14 may be one of honest belief, rather than of reasonable
15 belief.
16 That is dealt with very fully in the Lawton team
17 submissions. I give the page reference: FS7.359
18 onwards.
19 MS HORWOOD-SMART: Sir, we adopt the submissions, we have
20 nothing to add.
21 Further submissions by MR CLARKE
22 MR CLARKE: Just by way of the matters that have been raised
23 today, the first set of authorities adduced by my
24 learned friend Mr Lloyd Jones relate to the
25 establishment of facts in civil proceedings where there
1 is a lis, the upshot of which is to give rise to
2 immediate legal consequences of various different kinds:
3 a change in custody, care and control, care orders in
4 favour of the local authority and the like.
5 Those circumstances are not these circumstances.
6 The coroner's cases are more analogous, but the analogy
7 is inexact. The coroner is a form of court. It has
8 a jury and produces a verdict. That may be matters
9 largely of nomenclature, but there are only a limited
10 number of verdicts that it can produce: unlawful
11 killing, misadventure, accident or an open verdict, and
12 the verdict is unreasoned.
13 It is not unsurprising in those circumstances that
14 the rules have been laid down in the manner specified in
15 the cases.
16 The genesis and function of this Inquiry is
17 different. All are agreed it is not a court or
18 something like a court. The resolution appointing it is
19 in the most general terms, with, as I said, no
20 specification as to the degree of proof and the
21 intention of Parliament, I venture to submit again, is
22 that the Tribunal should find out what it can about what
23 happened on the day.
24 Having made my submissions about what Parliament
25 must be treated to have intended, I leave it to the
1 Tribunal to decide whether they are well founded or not.
2 My learned friend Mr Lloyds Jones, indeed, Mr Elias
3 and those who associate themselves with those
4 submissions, submit in essence that any finding or
5 holding that constitutes an implication of criminal
6 wrong-doing must be proved to the criminal standard.
7 That would appear to have put the position of the
8 Tribunal in a worse case than the person who says that
9 he has been guilty of rape, where the defendant has been
10 acquitted, who then sues him in a civil trial or, for
11 instance, the Omagh victims in their civil claim. It is
12 not immediately apparent to me why that should be so.
13 It is said that Mr Justice McPherson made a slip of
14 only one word in the "for sure or probably" passage of
15 his report. Well, only one word was necessary and there
16 is no reason why we assume that was a slip.
17 It may not matter what Mr Justice McPherson thought;
18 the relevant question is what must this Tribunal think
19 in the circumstances of this Inquiry.
20 It is perhaps relevant to investigate a little more
21 what is meant by saying that a finding which carries
22 implications of criminal conduct must be proved to the
23 criminal standard.
24 Take a very simple case. The Tribunal might
25 conclude that X shot A. That, as I understand it, would
1 not have to be proved to the criminal standard on those
2 submissions. It might conclude that X was not mistaken,
3 that is to say that A was his target. I understand it
4 is not suggested that that would have to be to the
5 criminal standard.
6 It might decide that there was in fact no objective
7 justification, that is to say A and those around him
8 were doing nothing that would justify such a shot. As
9 I understand it, that would not have to be shown to the
10 criminal standard.
11 The Tribunal might also find that no-one could
12 reasonably have thought that anything was being done
13 which justified shooting. As my learned friend
14 Sir Allan has just observed, the test in criminal
15 matters is subjective and not objective so, as
16 I understand the submissions, the Tribunal could find,
17 to the non-criminal standard, that no-one could
18 reasonably have thought that there was any justification
19 for shooting.
20 The Tribunal could presumably find to the civil
21 standard that X's account of what he had done was
22 incorrect and presumably, though this may be more
23 doubtful, that what X had told the Inquiry was known to
24 be incorrect. That would leave only the last question:
25 whether X thought, whether reasonably or otherwise, that
1 what he did was justified.
2 As I understand the tenor of the submissions, it
3 would be this latter circumstance which would imply, in
4 the example given, criminal conduct and would have to be
5 proved to the criminal standard.
6 I have already made observations about the
7 difficulties the Tribunal may find in deciding on the
8 subjective belief of individual soldiers. I do not
9 depart from the submissions that I made in relation to
10 the Tribunal's approach as a whole, but it may be that
11 the difference between my learned friends and myself is
12 not quite as large as it might seem.
13 I would like to return to the example that
14 Lord Saville raised with my learned friends, because the
15 position we appear to have reached on my learned
16 friends' submissions is that it would not be open to the
17 Tribunal to find that somebody had a rifle unless they
18 were sure and they could not find that it was possible
19 he had a rifle because they would not have satisfied the
20 necessary standard, but so far as dealing with the
21 conduct of a soldier who said that he saw someone with
22 a rifle and fired accordingly, the Tribunal could at
23 least, as part of its reasoning, say that they could not
24 be sure that the firing was unjustified because it was
25 possible that the person against whom the fire was
1 directed had a rifle.
2 My learned friend Mr Lloyd Jones said that this was
3 simply a case in which one factual matter is relevant in
4 different respects and that is true, but the difficulty
5 is that there is only one relevant fact, that is to say
6 whether or not the individual had, or might have had
7 a rifle.
8 The Tribunal will have to find, at any rate
9 internally, whether the person in question did, or might
10 have had a rifle; the evidence is not analysable in any
11 other way.
12 I understood my learned friend Mr Elias's submission
13 to be that this is no problem, because the Tribunal need
14 only say, if that is its conclusion, that it was
15 possible that the person in question had a rifle, that
16 they find the firing of the soldier may have been
17 justified.
18 But in a report which necessarily will have to refer
19 to the evidence and will have, it is to be hoped, to
20 have reasoning as to the conclusions, it is not possible
21 simply to leave it at that. The Tribunal will
22 necessarily have set out, in summary at any rate, what
23 the soldier said happened and it cannot sensibly express
24 a view which leaves unclear whether or not it is finding
25 that the person against whom the fire was directed did,
1 that they are sure he did, that he probably did, that he
2 might have had a rifle, or that he did not.
3 It is not possible to write a sensible report
4 without addressing those questions. That is one of the
5 circumstances of this rather exceptional Inquiry in
6 which there are allegations of criminal conduct on both
7 "sides", which in our submission points in favour of the
8 submissions that I was making, rather than those of my
9 learned friend.
10 The last matter that I wanted to address was the
11 question of unfairness. Powerful submissions have been
12 made to the Tribunal that it would simply be unfair for
13 the Tribunal to adopt any lesser standard than sureness
14 in that which implies criminal conduct and that
15 Parliament can scarcely have thought otherwise.
16 The only observation that I desire to make in
17 relation to that is that this is an Inquiry in which
18 fairness applies, of course, to the soldiers but there
19 are other interests to be considered: the interests of
20 the public whose representatives commissioned this
21 Inquiry, and the interests of those who were shot, and
22 the families of those who died, for whom, in part, the
23 Inquiry was conducted.
24 Parliament did not instruct the police to carry out
25 an investigation and thereafter to bring a criminal
1 trial, if so advised. What I venture to suggest they
2 did was to appoint this Tribunal to say what the
3 Tribunal could tell the world about what happened and
4 that the Tribunal should do so in the terms that
5 I suggested when I opened my submissions earlier.
6 LORD SAVILLE: Thank you very much, Mr Clarke. We will come
7 back to the matter tomorrow at 9.30.
8 If I may address myself to the representatives of
9 the soldiers. We would be grateful if you would say
10 what you are able to say tomorrow. I do understand and
11 accept that in relation to one of the questions that we
12 asked, which is what are we to make of the Loden
13 shot-list, it would be preferable -- it is a matter for
14 you -- that we await what Mr Mansfield has to say before
15 you make any response, because otherwise it may be you
16 will have to get on your feet twice. So on the whole
17 I would have thought it would be better if you did not
18 deal with that particular topic. But there are a number
19 of other topics, of course, on which we would like your
20 assistance tomorrow.
21 The only other thing I would say about tomorrow is
22 that unfortunately we are not able to have Mr Duddy to
23 give evidence. We are not going to be able to have him
24 this week, we are going to reschedule him next week, and
25 we will provide you with a date and time as soon as we
1 are able to do so.
2 9.30 tomorrow morning, please.
3 (3.40 pm)
4 (Proceedings adjourned until 9.30 am
5 on Wednesday, 9th June 2004)
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1 INDEX
2 PAGE
3 Submissions by MR KENNEDY .................... 1
4 Submissions by SIR LOUIS BLOM-COOPER ......... 15
5 Submissions by MR O'HANLON ................... 36
6 Submissions by MR McGRORY .................... 73
7 Submissions by MR O'DONOVAN .................. 80
8 Submissions by MR LLOYD JONES ................ 82
9 Submissions by MR ELIAS ...................... 154
10 Submissions by SIR ALLAN GREEN ............... 171
11 Further submissions by MR CLARKE ............. 171
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15
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18
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20
21
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25