1 Wednesday, 9th June 2004
2 (9.35 am)
3 Submissions by MR GLASGOW
4 MR GLASGOW: We notified the Tribunal that we did not wish,
5 nobody wishes me to make an address to you at this
6 stage. I would, however, respectfully like to address
7 some of the questions that you have asked at a little
8 bit of length. The early ones are not directed directly
9 at us. May I just, however, run through them, in case
10 any of you wants to put anything to me and tell you how
11 we propose to dispose of them.
12 The first has been dealt with by my learned friend,
13 to whom I am very grateful, Mr Lloyds Jones.
14 The second is your question of the history of
15 violence, the Tribunal wishes to hear about. We have of
16 course made no submissions about that and I do not wish
17 to add to it.
18 Thirdly, the unique problems of Derry, again
19 addressed to Madden & Finucane, and helpfully dealt with
20 by my learned friend Mr Harvey on Monday. We do not, of
21 course, suggest that there were any unique problems that
22 Stormont failed to address and I do not seek to add or
23 contradict anything that is said about that.
24 The fourth is your question about the Joint Security
25 Committee meeting on 13th January which my learned
1 friend Mr Bradly will deal with, if that is acceptable.
2 The fifth question was the Aitken submissions about
3 the infiltration of NICRA by the IRA. That was an issue
4 addressed, very fully, by the Aitken team. We did not
5 duplicate it, although I accept we, of course,
6 contributed to it. My learned friend has told me that
7 and how he proposes to address that and we have nothing
8 to add to that.
9 The sixth was the risk the demonstration posed. The
10 first part of your question, perhaps being directed to
11 all of us: what exactly was the risk that ought to have
12 been foreseen by the Army. Of course, we have not
13 submitted -- and we did not submit -- that the
14 perceptions of the Army should have differed from those
15 of NICRA or, I should say, that any of the clients of
16 Allen & Overy failed to appreciate any risk.
17 I noted, with respect, the way in which my learned
18 friend Mr Harvey put his submission on that. He did so
19 in these terms: the risk that the Government did foresee
20 was the same as the risk identified by the Army, namely,
21 the possibility that there could be isolated shooting
22 from the IRA, although, understandably, directed at the
23 Army generally.
24 I, of course, do not, on behalf of the officers,
25 seriously disagree with that. But I ought, for
1 completeness, just to refer you to the terms in which
2 that Army view, the officers were expressing that view,
3 both at 8th Brigade and as echoed by Sir Robert Ford and
4 repeated in his evidence; it is the opinion of the
5 senior commanders in Londonderry that if the march takes
6 place, however good the intentions of NICRA may be, the
7 Derry Young Hooligans, backed up by the gunmen, will
8 undoubtedly take over at an early stage; those were the
9 terms in which, in my respectful submission, much the
10 same as what my learned friend Mr Harvey said, the terms
11 in which it was expressed by echoed by 8th Brigade and
12 echoed by Sir Robert Ford.
13 Your seventh question was again directed
14 specifically to Madden & Finucane about the heli-tele
15 footage. I have nothing to add to what we have already
16 said about that.
17 The eighth was the sequence of the NICRA
18 photographs, as explained by the Aitken team and as
19 challenged by my learned friend Mr O'Hanlon at length.
20 I have nothing to add to what I know the Aitken team,
21 through my learned friend Mr Elias, will say about that.
22 Nine and ten are directly concerned with the senior
23 officers, the orders given and the soldiers' weaponry,
24 what they took into the Bogside. I have asked my
25 learned friend Mr Bradly to deal with those matters.
1 Eleven is the joint enterprise. My learned friend
2 Mr Harvey has, very helpfully, in our respectful
3 submission, explained that the principles of joint
4 enterprise, exclusive as they are to the criminal law,
5 do not have any part to play in the Tribunal's approach
6 to the evidence that has been given, and we respectfully
7 agree. If you want the note to it, sir, we said so in
8 our reply submissions at RF7.12.
9 The twelfth matter is one upon which, of course,
10 I must comment. It is the civilian reaction to
11 paratroopers. I do not, of course, repeat the question,
12 you are mindful of the terms in which you asked it.
13 First, as to the evidence, it is undoubtedly the
14 case that civilians did confront the soldiers in places.
15 For example, on the wasteground and in the car park in
16 front of the flats, a small number of them were very
17 candid about having done so, although a very much larger
18 number, including of course Bishop Daly, either failed
19 to see that or convinced themselves, or attempted to
20 convince you, that there was no confrontation at all and
21 that everyone was running away.
22 A small number of rioters even admitted, even more
23 candidly, that the levels of hatred were such that they
24 would have caused serious injury or even killed
25 soldiers, if they could.
1 Equally, at the rubble barricade a small number
2 candidly accepted, or perhaps boasted, that there had
3 been a charge, in some cases more than one, across the
4 barricade, in the direction of the soldiers. We would
5 respectfully submit about that evidence that it must be
6 extremely difficult, if not impossible, to say whether
7 or not the same sort of thing would have happened in
8 Belfast, but as to its significance, which you
9 specifically, and understandably, ask about, we noted
10 the terms in which Lord Saville raised the question with
11 my learned friend Mr Harvey, as to whether it might be
12 said that the fact that some civilians stood up to the
13 soldiers, might have caused them to believe that some of
14 those who were standing up to them might be armed.
15 I should say that I accept, of course, that that is
16 a perfectly sensible way of putting it, but I also have
17 to accept that I could not submit, and I have not
18 submitted, that a rioting crowd, even if wholly
19 unexpected, could justify trained soldiers in assuming
20 that an individual was armed, and that is not what any
21 soldier has claimed or what any soldier has admitted to
22 have done.
23 What I would submit, is this: where soldiers are
24 engaged in an arrest operation, as I respectfully but
25 firmly submit these soldiers undoubtedly were, when the
1 operation started, and when they do, and when they did
2 come under fire, and for the purposes of this submission
3 it does not really matter how limited that might have
4 been, although that is a very contentious issue, but if
5 they do come, I would say, under any fire, the scene
6 which confronts the soldiers at that time will
7 inevitably be, in my respectful submission, far more
8 confused and could well contribute to mistakes being
9 made as to what was going on.
10 Mistakes in that environment would certainly be far
11 more likely than would be the case if, as has been
12 suggested and as may still be believed in some quarters,
13 the soldiers simply fired into the backs of a fleeing
14 crowd. Because if that is what happened, and of course
15 that is the way it was portrayed, very widely at the
16 time, as I have said, and may still be believed by some
17 people, questions of mistakes and confusion simply
18 arise, and that is why we draw the distinction between
19 what we say did happen and what was suggested and what
20 may still be believed, with varying degrees of
21 sincerity, but certainly with sincerity by some people
22 in this city.
23 Those who would say -- and they have said it, and
24 they do say it -- that there was no room for mistake
25 here, this was simply deliberate shooting at obviously
1 innocent people, who were neither doing anything
2 themselves, nor were they in the company of anyone who
3 was doing anything that could possibly have caused
4 a soldier to fire or to be confused, simply overstate
5 and oversimplify that case, in our very respectful
6 submission.
7 MR TOOHEY: Mr Glasgow, can I interrupt you? There seem to
8 be two steps in what you are putting to us at the
9 moment, the second of which is the lack of
10 justification, even if there was some confrontation by
11 the civilians.
12 MR GLASGOW: Yes.
13 MR TOOHEY: And a belief that someone may have been armed.
14 But there is a first step, namely, what does the
15 evidence tell us, through the soldiers, as to what they
16 saw and in what circumstances they believed a civilian
17 to have been armed when they shot. It is the first of
18 those steps that perhaps you can help us on.
19 MR GLASGOW: I hope, sir, that to the extent that I can,
20 I hope to help you in relation to the specific questions
21 you ask about what each soldier did.
22 Would it be helpful, if it does not sound
23 impertinent, to say what I have to say under that, and
24 if I have not dealt with it, insofar as I can on my
25 instructions, I will come back to it and please tell me
1 if I have not.
2 MR TOOHEY: By all means.
3 MR GLASGOW: The thirteenth question, again perhaps even
4 more important that I should say publicly something
5 about it, is about the accountability of the soldiers.
6 I respond to this question, of course, as I do to
7 everything, in the light of the submissions that my
8 learned friend Mr Harvey made on Monday.
9 It has been no part of our case that soldiers should
10 not be accountable. Our submission is that they have
11 all given accounts and taken responsibility for what
12 they did at all levels. Now, in making that submission
13 we have, in respect of the soldiers whom we represent,
14 attempted faithfully, in our submissions, to reflect
15 their evidence to you.
16 We have not attempted, of course, to make that
17 evidence fit anything, and where it does not explain
18 something, we have not tried to pretend that it does.
19 What we have done is to look carefully at the evidence
20 that each soldier has given and decided what submission
21 that entitled us to make and we have made it.
22 In saying that, we cannot go beyond that. I am not
23 seeking to be obstructive or disrespectful to anyone.
24 I have to say that because the suggestion made on behalf
25 of the families must -- I justify it by giving just one
1 example. We do not look it up, but the reference to it
2 is FS5.1, signed by my learned friend Mr Declan Morgan,
3 Queen's Counsel, as he then was, with my learned friend
4 Mr Kennedy.
5 The allegation is that we, the team that I head, as
6 "lawyers for the Army" -- that is the term used -- have
7 engaged in a strategy of obfuscation. That is the
8 allegation against me and my team. That is, with
9 respect, wrong. It is unjustified. It is
10 unprofessional. It is resented.
11 We also find it odd and ironic that this can be said
12 specifically on behalf of a legal team who engaged
13 a researcher who very candidly admitted, as he was fully
14 entitled to do, that he was committed to the families'
15 cause -- there is no reason why he should not have
16 been -- but whose research would appear to have been
17 systematically concealed from this Inquiry whenever it
18 turned up anything that was even questionably
19 incompatible with the case that was being advanced.
20 It is, of course, for you, the Tribunal, to judge
21 whether the allegation against us is true and whether or
22 not what we say has been done with Mr Mahon's evidence
23 is true. We would ask you to decide both those issues.
24 We appreciate that it is also suggested, in more
25 neutral language, that we are not assisting you and that
1 we are not providing answers to what happened. That,
2 however, to the extent that it is true -- and I hope it
3 is not totally true, because we have tried quite hard --
4 that is because we are representing individuals -- I say
5 that yet again -- each of whom can only give his own
6 account of what he saw, of why he fired, in the case of
7 those that fired, in circumstances where, as we have
8 respectfully submitted even in our brief opening, it may
9 not be surprising that an individual soldier may be
10 unable to say -- of course it is for you to say whether
11 you believe him -- but not surprising, in our
12 submission, that he may be unable to say whether the
13 individual at whom he aimed and fired is or is not one
14 of the subsequently identified casualties.
15 That may particularly be the case where a number of
16 soldiers fire at much the same time and in the same
17 direction, as with the situation where you have a number
18 of civilians crawling at the rubble barricade, and
19 a number of soldiers observing and firing. I would
20 respectfully suggest that it may not be surprising that
21 none of the soldiers is able to say that he hit any one
22 individual, although undoubtedly -- and of course we
23 have not questioned -- an individual was shot in that
24 situation.
25 Equally, where a soldier shoots at an individual who
1 is not in a crowd -- in order to cover the full range,
2 let me look at an example of that. Perhaps Sergeant O,
3 at the gunman he says he fired at in the corner between
4 Blocks 2 and 3. Having given that evidence, in our
5 submission consistently throughout, whoever he was
6 talking to and whether or not he had any reason to
7 believe that his conversations were going to be recorded
8 or reported, it would be unhelpful, and in our
9 submission, improper for us to try in some way to
10 encourage him to tailor his evidence or to do so
11 ourselves in a submission, so that it fitted one of the
12 known casualties.
13 If the evidence given and the instructions given to
14 us by our clients do not permit us to do that, we do not
15 do it or even hint or attempt to do it.
16 Finally, in responding to the questions that you
17 have raised, I have to say, lest it be thought by
18 anybody else listening to me that I am being unhelpful
19 or obstructive, that I am very reluctant to alter the
20 way in which we have made our very extensive
21 submissions, for the simple reason that we did think
22 them out extremely carefully and where necessary
23 obtained the consent or the approval of our clients to
24 say what they have said. Although I take responsibility
25 for them, those who are in direct contact with clients
1 and who did discuss them with them, have authorised them
2 to be put in a particular way and, without wishing to be
3 unhelpful, if I attempt to put them in some other way on
4 my feet, at a minimum there is a risk that without
5 appreciating the extent to which I may be transgressing
6 some instruction or ignoring some evidence, I cannot do
7 so with the care that I hope we employed when we looked
8 at, I hope it is right to say, every word that we wrote
9 and either corrected, when a mistake was pointed out, or
10 justified or modified in our reply submissions.
11 What I have to bear in mind is that we did very
12 carefully think about what we could properly say. We
13 represent a very large number of individuals, nearly
14 500. We needed to consider what each one had said about
15 himself and about others. We heeded your observation
16 that unsupported assertions would be unhelpful, and
17 I hope that you will find that we have explained the
18 basis on which each one of our submissions rested.
19 If I have not, if I have said something that does
20 not appear to be supported, of course I would welcome
21 challenge. Since I have to be on my feet probably next
22 week, I will, insofar as it is necessary, of course
23 I promise and undertake to take it away, look at it very
24 carefully and if I have made a mistake, to correct it.
25 I accept, humbled by comparison with my learned
1 friend Mr Clarke, I have been on my feet quite a lot in
2 the last five years, or however long it is, working on
3 the case for six and a half years, as he has been, and
4 I know that I have made mistakes. Probably I am more
5 human than most. But I certainly put them right, or try
6 to put them right when I do, and I will do so again.
7 What I will not do is try to reword a submission
8 that I have made without thinking about it, and the
9 submissions that we have made are made in accordance
10 with the instructions of our clients and consistent with
11 their evidence and their instructions. I think it would
12 be inappropriate for me to attempt to reformulate them
13 on my feet, which is why I declined the invitation to
14 make an address to you, or a further speech, that was
15 not answering the questions that you have asked.
16 When I look at the specific questions under this
17 section, I know it is not helpful, sir, to repeat your
18 questions, because you have them in mind, but these are
19 very short and, unless stopped by you, may I just
20 indicate what question I am addressing, otherwise a sort
21 of monosyllabic answer sounds a bit curt and unhelpful.
22 The first question was: is it accepted that the
23 probability is that all those who are identified as
24 having been shot in sectors 1 to 5 were shot by the
25 soldiers of 1 Para, who admit firing?
1 My answer is: yes, save, of course, for
2 Mrs Peggy Deery, Patrick McDaid, Alex Nash and
3 Mickey Doherty. I will come to each of those very
4 briefly in turn, if I may, and give you the references,
5 if that is helpful.
6 The second question was whether it was accepted that
7 the probability is that all were shot either by (a)
8 a soldier of 1 Para who admitted firing or one who did
9 not and (b), what is the basis for the Tribunal
10 concluding that a soldier who admits firing, et cetera.
11 The first part of that question, 2(a),
12 I respectfully answer: no, because in each of the four
13 cases that I have just identified, we have submitted
14 that the casualty either was not or may not have been
15 shot by a paratrooper at all.
16 2(b), the basis for saying that is the evidence as
17 a whole and that evidence, of course, we remind
18 ourselves, may be either negative or positive; it may
19 point to a particular conclusion, or to the absence of
20 that conclusion.
21 In the case of Mrs Deery, we have submitted that the
22 evidence about the time at which the shootings have
23 taken place and about the features, the identity of the
24 description of the soldier who is alleged to have shot
25 her is, perhaps understandably -- I do not say this at
1 all critically or rudely -- but that evidence is so
2 contradictory and unreliable that, when taken with the
3 evidence of the timing, the Tribunal, putting it at its
4 lowest, should ask itself whether this may indicate that
5 it was not a soldier at all who fired that shot. Our
6 attempt to justify that submission is to be found at our
7 final submission, FS7, page 1553 to 1575, it is an
8 extensive passage, and in our reply submissions FR7, 483
9 to 485.
10 In the case of Mr Nash, we have identified the
11 evidence which we suggest positively indicates that
12 a civilian gunman shot him. That is dealt with
13 extensively at FS7, 610 to 614; 1657 to 1676; 1700 to
14 1710; and, further, in our reply submissions at FR567,
15 577 to 591. I give you the reference as I hope it is
16 helpful, but also as an indication of the sort of
17 extensive submissions that I would have to look at
18 before I could attempt to put any part of them in
19 a different way. One would have to look at everything
20 that has been said, I hope helpfully; it was certainly
21 intended to be.
22 In the case of Patrick McDaid, we have analysed the
23 evidence, particularly, of course, as to the nature of
24 the wound, and we rely on the evidence as a whole. That
25 is to be found at FS7, 1611 to 22; and in our reply at
1 FR7, 497 and 498.
2 I will not waste time over Mickey Doherty, the
3 fourth, because there is, of course, no argument about
4 the circumstances in which he was shot, or at least the
5 soldier who shot him.
6 Your third question, sir, was: if it is not accepted
7 that all those who were shot were shot by a soldier of
8 1 Para, who are the candidates, and why?
9 Our answer to that is that we have made no
10 submission as to the identities of those who may have
11 shot either Mrs Deery or Mr Nash. Our submissions are
12 that the Tribunal, firstly, cannot conclude or reach
13 a conclusion as to who shot Mrs Deery. We would say
14 that you could not do that at all, you certainly could
15 not, I put it no higher than that.
16 Secondly, we say that you should not reach
17 a conclusion that it was a soldier who shot either
18 Mrs Deery, or Mr Nash, or Mr McDaid.
19 Thirdly, we say that you can, and should, reach
20 a conclusion on the basis of the evidence as a whole
21 and, as is relied on in our written submissions to which
22 I have referred, that an IRA gunman shot Mr Nash, and it
23 must be a matter for the Tribunal whether to accept the
24 evidence of Kieran Gill, the journalist, or OIRA 1.
25 That is the primary conflict that we face, and that you
1 face there. We rely on our submissions. I respectfully
2 remind you that is FS7, 1700 to 1710; and 610 to 614.
3 We accept, of course, as my learned friend Mr Lloyd
4 Jones explained, and for the reasons that he explained
5 yesterday, that, in our respectful submission, you could
6 only find that an individual, identified of course only
7 by cipher, shot Mr Nash if you were sure. But even if
8 you believe that he might have done, in our submission
9 it would oblige you to find that you could not be sure
10 that a soldier shot him. You would not have to make any
11 finding against a named or an unnamed individual in
12 order to say that, but in fairness to the soldier, in
13 our respectful submission, you would have to. I do not,
14 of course, seek to add anything or take away from the
15 submission which I am extremely grateful to my learned
16 friend Mr Lloyd Jones for dealing with, so much more
17 competently than I could have done.
18 The fourth of our submissions is that Soldier AA
19 shot Mickey Doherty, which I think is uncontentious.
20 Your fourth question asked us that if it is accepted
21 that all those who were shot were shot by soldiers from
22 1 Para, is it said that the likelihood is that in
23 addition to the 13 dead and 14 wounded, there are
24 something like that number of dead or wounded who have
25 been unidentified, or are all shots said to have missed
1 and hit somebody by mistake.
2 With respect, neither of those submissions has been
3 made or is made. What has been and is submitted is that
4 an unknown number of unidentified casualties was shot.
5 There is no evidence which we can rely on as
6 establishing a likelihood that they were killed.
7 We do rely on the fact that a soldier undoubtedly
8 shot one IRA sniper on Bloody Sunday. We again rely on
9 the fact that that is not something that appeared to us
10 to have been widely admitted to this Tribunal, even by
11 those who must have known about it, and we do rely upon
12 that fact, which we think is unchallengeable, in making
13 the respectful suggestion that this fact alone
14 significantly undermines the very confident suggestion
15 that has been made that all casualties of the day were
16 admitted, or would have been.
17 We do suggest that a number of people must have
18 known of other casualties, however few, however many.
19 But this fact does not mean that truthful accounts would
20 necessarily have been given publicly as to the
21 circumstances in which people were shot, whether fatally
22 or not.
23 We, of course, accept the fact that somebody has
24 been killed or wounded is unlikely to be concealed for
25 ever, or even for any significant time. But whether
1 a truthful account is given of the date when they were
2 shot, the circumstances in which they were shot, where
3 they were treated, that is something that you have to
4 examine in the light of the evidence as a whole,
5 particularly the evidence of those who have candidly
6 admitted that they or others of whom they know were
7 treated at various times for wounds which had not been
8 publicised.
9 I take it no further, because the Aitken team
10 collected the material on which we both worked, and
11 I respectfully and gratefully adopt what they have said,
12 and will say.
13 Your fifth question to us, sir, was: do the soldiers
14 say the Tribunal can come to any conclusion and if so
15 what, as to which soldier is responsible for each of the
16 casualties? We are invited to look at the consequences,
17 if we are unable to do that, with the illustration of
18 the evidence about Jackie Duddy.
19 My answer is, and I think can only be this -- it is
20 not intended again to be obstructive or unhelpful, it is
21 simply the truth reflecting my instructions. To the
22 extent to which we believe that a proper analysis of all
23 available evidence permits a particular conclusion about
24 any dead or injured person, we have submitted that and,
25 to the extent that we have not done so, this is because
1 the evidence, in our submission, does not warrant any
2 particular conclusion.
3 We add, with respect but confidence, that it is not
4 the Tribunal's role, and it certainly is not ours, to
5 reach a conclusion at all costs, or to suggest one, but
6 to reach a conclusion, in your case, and to make
7 a submission, in ours, that can properly be justified on
8 the evidence, and that is what we have attempted to do
9 and what we respectfully invite you to do.
10 In view of the criticisms made of us, may I just add
11 that the position of each individual soldier, as well as
12 that of each individual casualty -- and we have
13 addressed them all in our written submissions -- needs
14 to be looked at. It needs to be looked at in the light
15 of all the evidence, including that of the soldier.
16 If that evidence justifies the submission that he
17 did not shoot a given casualty, it is not only proper
18 that such a submission should be made on his behalf, it
19 would be wholly improper for it not to be made. It does
20 not trespass on your function in deciding whether you
21 accept it or not in the light of the evidence as a
22 whole. It reflects on our function in making
23 submissions on behalf of the individuals whom we
24 represent, even if that means, as a matter of logic,
25 that either he, or some other soldier, must be wrong.
1 Of course that will happen, and perhaps inevitably
2 happen. We do not shrink from that. It is not our job
3 to say which may be wrong or for what reason.
4 Your sixth question, perfectly fairly, goes on and
5 asks: if only a limited answer can be given, and
6 I accept that it can, what conclusion can you reach
7 about an operation which results in 13 deaths and 14
8 woundings in which no explanation can be given? That is
9 the only phrase that I respectfully question whether it
10 is very helpful. I do not mean that in any rude sense.
11 May I explain it in this way: evidence has been
12 given of each shot that is fired. Of course it is up to
13 you what conclusion you come to about that evidence. It
14 may well be the case that this evidence does not explain
15 even most of the casualties. The conclusions which the
16 Tribunal should come to must depend on the view which it
17 forms of the evidence that it has received. I know that
18 sounds trite. It is not meant to sound silly, but it
19 needs to be repeated, in view of the criticisms that are
20 made of us for obfuscation and trying to create a case
21 or prevent you from understanding one.
22 Our submission is that the soldiers whom we
23 represent have given truthful accounts of what
24 confronted them, of the circumstances in which, and the
25 reasons why, they fired. That, however regrettable it
1 undoubtedly is, and whatever people may think in the
2 public gallery or elsewhere, I say that with complete
3 sincerity, however regrettable it is, that innocent
4 people were killed and injured.
5 It may not be surprising that it is not possible to
6 link an individual soldier's shot with an individual
7 injury or death. That does not detract from the
8 sincerity with which we accept that it is undoubted
9 innocent people have been killed.
10 If soldiers, individually or collectively, had
11 denied that they had fired shots or denied that they had
12 hit anyone, it would be right to say that no explanation
13 had been given. The issue here, in our submission, is
14 not as to whether or not an explanation has been given,
15 but whether or not you accept the evidence that has been
16 given.
17 May I just give one example of how dangerous it is
18 to tailor evidence or to tailor submissions. I would
19 positively rely upon the fact that not a single soldier
20 gave evidence to take advantage, for example, of
21 OIRA 4's admitted shots. At least from the outset of
22 this Inquiry, it has been fairly common ground and
23 accepted, clearly it was going to be proved beyond
24 a shadow of doubt, that an IRA gunman, in the car park
25 of the Rossville Flats, wildly fired shots in the
1 direction of soldiers.
2 If the submissions about rank dishonesty, cover-ups
3 and making up stories had the force which justifies the
4 submissions that have been made, how odd it is that not
5 one single soldier who fired in the direction of that
6 corner, and accepts -- for example, Lieutenant N -- that
7 he may have hit somebody, not one seeks to take
8 advantage of that admitted evidence and say: well, in
9 the light of what I now know, of course it is probable
10 that I was confused by those shots that were fired at
11 us, fired at them; they undoubtedly were. When they say
12 in the confusion they do not identify those as against
13 anything else, I would have respectfully submitted, that
14 rebounded to their credit, rather than the reverse.
15 MR TOOHEY: Mr Glasgow, can I take you to a sentence in
16 which you said:
17 "The issue here, in our submission, is not as to
18 whether or not an explanation has been given, but
19 whether or not you accept the evidence that has been
20 given."
21 Faced as we are with 27 persons who were killed or
22 wounded on the day, is it not for us to consider, as
23 best we can, in the light of the evidence, whether or
24 not an explanation has been given for those deaths,
25 bearing in mind that it is not suggested that any of
1 those persons were shot accidentally and it is accepted
2 that they were not armed or otherwise presenting
3 a justification for their being shot.
4 This is approaching it in a global sense, and
5 I appreciate that you are focusing on the individual
6 soldiers, but I invite you to direct your attention, if
7 you will, to the broad question of the number of persons
8 who were killed on the day, for whom no explanation has
9 been offered.
10 MR GLASGOW: Sir, with respect, the only quarrel that
11 I would have with the way you put it is to say there is
12 no suggestion they were accidentally shot, because we
13 expressly accept they may have been.
14 MR TOOHEY: I am sorry -- perhaps I should say there can
15 hardly have been evidence they were accidentally shot.
16 MR GLASGOW: You say that, sir. I know that sometimes
17 sounds rude, and it is not meant to. Is it not a fact,
18 if I am justified in making the submission that I think
19 I am compelled to make on behalf of individual soldiers,
20 that they may have been mistaken for the reasons which
21 I attempted to answer, rather more extensively than
22 Lord Saville's helpful question yesterday indicated,
23 might they be confused about what was going on when
24 confronted by a riot, I accept any number of them,
25 perhaps even only one, but as many as ten, may be
1 confused by that situation and fire in circumstances
2 where they are mistaken.
3 The issue, I think, and I can only submit for you,
4 is whether or not you accept their explanation or, in
5 those cases where you think there was a mistake, whether
6 or not that is a mistake which rules out the possibility
7 of a genuine and honest mistake, whatever it is based
8 on. But I cannot, I think, properly make a submission
9 in the round on behalf of the Army. That is why we so
10 deeply resent the suggestion that we, on behalf of the
11 Army, are obfuscating or creating a case. We are not.
12 We are submitting to you, as I think I have to, on
13 behalf of the individuals I represent.
14 I fully appreciate that that sounds unhelpful,
15 perhaps to anybody other than a lawyer, but I am
16 conscious of the restrictions that my instructions and
17 my professional position put me in in making submissions
18 that I feel I am entitled to make to you. I am sorry
19 that I cannot put it any higher than that.
20 Subject to the little quarrel that I had, I do, of
21 course, accept that you are perfectly entitled to ask
22 the question of yourselves and answer it, provided that
23 you do so in the light of the evidence as a whole and
24 fairly to all concerned, to the best of your ability,
25 however difficult that may be, given the ravages of time
1 and the fact that, inevitably, people have vested
2 interests, even if they do not recognise them in giving
3 evidence about what they saw and about what they did.
4 MR TOOHEY: I take it it would follow, then, from what you
5 have said, that, consistent with the way in which you
6 are putting your submissions, to ask the question not
7 only who shot the individuals, but why they were shot
8 is -- you would answer in the same way, would you?
9 MR GLASGOW: Absolutely, I would.
10 LORD SAVILLE: Mr Glasgow, I do not really quite understand
11 why you quarrel with the wording of question six.
12 MR GLASGOW: I am sorry if I have done that wrongly, I will
13 go back to it. It is only, sir, the words -- I should
14 not put it as high as "quarrel". What troubled me was
15 the suggestion that no explanation can be given. What
16 I sought to say in response to that was: I can do
17 nothing more than refer you, as I hope I have in our
18 submissions, to the evidence that has been given; it
19 must be a matter for you to decide whether or not that
20 provides an explanation in any one case.
21 LORD SAVILLE: Does it not follow from that, that so far as
22 your clients are concerned, and there are quite a lot of
23 them, they have offered no explanation?
24 MR GLASGOW: No, sir, with respect, not. They have offered
25 explanations for what they did. Taken as a whole, if
1 I look at them collectively, as you invite me to, those
2 explanations may not provide an explanation for a group
3 or the totality of what is done, but it does not alter
4 the fact that I must submit, as I do, that the
5 explanation that each one has given for what he did, in
6 our submission, is the truth.
7 Now, in saying that, I repeat, sir, if two men say
8 something and only one of them can be right, it must
9 follow that you are entitled, both in the case of two or
10 in the case of 20, to find that some are wrong.
11 I cannot quarrel with that as a matter of logic. The
12 only thing that I can say, which I say respectfully with
13 emphasis, is that the only submission I can properly
14 make is on the basis of the evidence that my clients
15 have given.
16 LORD SAVILLE: But it can be said, perhaps with some force,
17 that if you take that stance, the answer is that no
18 explanation has been given as to how most of those who
19 were killed or injured met their fate.
20 MR GLASGOW: If you cannot decide, sir, on the evidence, as
21 to which shot killed or wounded an individual, then it
22 must follow that no explanation has been given for that.
23 If I am to blame for that, then I am to blame for it,
24 but --
25 LORD SAVILLE: Nobody is blaming you, Mr Glasgow. But if
1 you submit, as indeed it is proper for you to do, that
2 we should accept the evidence of the soldiers, on that
3 assumption alone it is correct, is it not, to say no
4 explanation can be given as to how most of those who
5 were killed or wounded met their fate?
6 MR GLASGOW: Yes. The only quarrel, sir -- you say nobody
7 is blaming me; I am publicly attacked for obfuscating
8 and obstructing you and that, we say, we have not done.
9 It is a misunderstanding of our position.
10 You ask us, seventhly, whether or not you should
11 trust the bullet count of 108. My answer to that is
12 that the Tribunal should accept that the 108 is probably
13 accurate.
14 You helpfully refer us to the two instances which
15 would certainly, on the face of the evidence given,
16 contradict that, being INQ449 and Mr Longstaff.
17 Our submission in the case of INQ449 is at our final
18 submissions 7, 1808. We do submit -- we did at the
19 time -- that his evidence simply cannot be right.
20 Again, I do not shrink from saying, we all heard the
21 evidence given about that shot, in circumstances where
22 nobody else saw it, where a lot of people must have been
23 around, including civilians. We did not attack him, we
24 did not of course represent him. We did not
25 cross-examine or challenge him as to his honesty, but we
1 do suggest, as I think you questioned at the time,
2 whether or not that can probably be right, because it
3 simply did not fit any other evidence at all.
4 As far as Mr Longstaff is concerned, I do not seek
5 to put it any differently than Madden & Finucane.
6 Madden & Finucane themselves candidly say his evidence
7 on that is probably wrong. They say that at FS1, 1886;
8 we do not disagree; he probably is wrong.
9 Your fourteenth question concerned firing from the
10 walls. You ask whether we make any case in respect of
11 firing from the walls, I put it shortly. That is not
12 our submission. We have not made a positive submission
13 that that is the case.
14 The fifteenth topic is about the bullet holes in the
15 window of 12 Garvan Place. I have five points that
16 I should make, if I may, in sequence, to give you the
17 references.
18 Firstly, there are, of course, six holes in the
19 glass. We get that from EP35.1. I do not ask for any
20 of these to be put up, but I will develop any of them
21 that you would like me to.
22 Secondly, the evidence is that seven rounds were
23 fired at the window. That comes from Susan North, who
24 recalled seven, one of which missed the glass. The
25 reference to that is paragraph 58 at M35.10 and Day 130,
1 44, line 9 and 75, page 75, line 24. For completeness,
2 that evidence was consistent with the evidence of others
3 inside the flat, for example Margaret Featherstone, at
4 paragraph 21 of her BSI statement, at AF5.4.
5 The third point we feel obliged and entitled to make
6 is that we have suggested that two rounds may have
7 missed the glass. We did that for the reasons that we
8 explained in FS7.1803. If right, what we did, you may
9 recall, sir, we simply ringed the marks on the window to
10 which we had referred and to which some evidence had
11 been directed. If that submission is right, it would
12 mean that eight rounds in all were fired at the window,
13 two of them missing it.
14 The fourth submission we would make is that the
15 evidence of Soldiers C and D is that they fired a total
16 of five rounds at their target on the west side of
17 Block 1 and two rounds missed the glass, three of them
18 hitting, which may correspond with our submission about
19 the two marks that are seen, which we deal with, as
20 I say, at FS7, 1803.
21 We have submitted that it is not possible to say,
22 certainly with any confidence, at which window C and D
23 fired, but if it was 12 Garvan Place, we accept that
24 their rounds cannot account for all the holes in that
25 window, obviously. We have dealt with that as fully as
1 we can at FS7, 1797 to 1808.
2 Fifthly, we accept, as we did at FS7, 1803, that F
3 and G may have accounted for some of those holes. Of
4 course it is right to acknowledge that E had also fired
5 to that side of the building, that face of the building,
6 at an earlier stage.
7 I also should note the possibility that was raised
8 by my learned friend Mr Christopher Clarke in his report
9 number 1 at paragraph 15.14 and in his opening on Day
10 027, page 68, line 20. All you need is the reference,
11 because those are the points at which he deals with
12 them, and I do not disagree with them.
13 What we would add, however, is that -- I put it no
14 higher than this -- it may be significant that soldiers
15 in different positions, independently, even if
16 mistakenly, believed that there was a gunman at the
17 window.
18 We accept that there is no photographic evidence of
19 damage to any other window on that face of Block 1.
20 There was a question that Mr Toohey raised at an earlier
21 stage, and we researched it as early as we could, hence
22 our submission at FS1804. We do not accept there was
23 necessarily no damage because if a gunman was fired at
24 by the window, it is highly unlikely that anyone would
25 have photographed it or drawn attention to it. As
1 I say, our submissions on that are at FS7, 1804, to
2 1805, where we consider the other evidence of shots at
3 windows on that face other than 12 Garvan Place.
4 The sixteenth question related to the cease firing
5 order given by Major Loden. I say straightaway that in
6 his evidence he accepted that it probably was his voice,
7 and you will not be confused, of course, by the fact
8 that his voice had changed dramatically by the time he
9 gave evidence to you, for reasons that you understand.
10 You wanted to hear submissions as to what shots could be
11 heard and what shots there may have been.
12 Our submission is that video 3 records two separate
13 cease fire orders. The references are at 527 and at 547
14 on that compilation tape, which has quite a lot of
15 different reports on it.
16 What we do say is that they are two distinct parts
17 of the film. They are certainly not continuous,
18 because, as Mr Clarke has typically fairly pointed out,
19 the camera angle changes between the two shots. But
20 they must have been filmed at much the same time. They
21 are certainly filmed after the Pig has collected the
22 casualties from the rubble barricade.
23 We do not know whether they are in the correct
24 order. Major Loden could not remember. It was put to
25 Colonel Loden, as he now is, that they were in the right
1 order, but we simply do not know on what basis that
2 submission is made. It was made with great confidence,
3 but we do not know what is said to justify the fact that
4 those particular clips, in a video film that contains
5 a lot of compilations, are in that particular order.
6 What we do accept, and I think must accept, is that
7 the shots must be SLR shots by soldiers. We have never
8 suggested other than that. Because of the lateness of
9 time, I repeat, after the Pig has collected the bodies
10 from the rubble barricade, they must have been fired
11 after the last known casualty was hit. Of course I have
12 to accept that maybe somebody we do not know about was
13 hit after that, perhaps even Mickey Doherty, but these
14 shots would have nothing to do with that, I think.
15 It seems likely that the shots were those of C or D
16 or F or G, or any combination of them. I am sorry
17 I cannot do better than that. That is not a matter of
18 instruction, it is simply a matter of researching it as
19 carefully as we can and being unable to come up with any
20 explanation that helps more. We have certainly no
21 desire or interest in obfuscating at all about it.
22 As to whether any of those shots were fired in
23 breach of the order, about which I think I ought to say
24 something, even if not asked, I would say this must
25 depend on what they were fired at and on the correct
1 sequence of the orders that we hear shouted.
2 Your seventeenth question, sir, was as to
3 Glenfada Park North. You will forgive me for repeating
4 it, it is very short: there is evidence that stones were
5 thrown at the Army in Glenfada Park and you wish to hear
6 what conclusions you should reach about that and what
7 significance.
8 We dealt with such evidence as we believe there is,
9 of stones in Glenfada Park, at our FS7.1902. That is
10 the passage in which we deal with PIRA 25 and
11 Mr Danny Gillespie. We did not suggest, and we do not
12 feel entitled to suggest -- despite your question --
13 that the question was to the effect that stones were
14 thrown.
15 Mr Harvey's submission, with respect, was right and
16 put it at the right level, and I do not disagree with
17 it. People were, on that evidence, preparing to throw
18 stones and we refer the Tribunal to that evidence only
19 in support of our submission that soldiers did not fire
20 on an isolated group of three men. You remember it is
21 a sub part of a long section of our submissions about
22 Glenfada Park, in which we deal with the suggestion that
23 there were just three men in isolation running across,
24 being shot at in circumstances where there could be no
25 conceivable confusion or doubt as to what was going on,
1 and as part of that, we dealt with such evidence as
2 there was of stone-throwing.
3 We deal further with the evidence and the families'
4 submissions as to what was going on. The positive
5 submissions that we do make which we would ask you to
6 check and look at, obviously you will, are at FR7,
7 page 748 to 759.
8 LORD SAVILLE: Did you want to say anything about the
9 evidence of PIRA 25?
10 MR GLASGOW: No, sir, nothing more than we have submitted in
11 that section.
12 The eighteenth question is about the sequence of
13 shots in Sector 5, sir. I have very little to add to or
14 to quarrel with about what has already been helpfully
15 submitted. There are four very brief points.
16 A substantial number of shots were undoubtedly fired
17 from Glenfada Park North into Sector 5. Barr & Co
18 submit that at FS6, 116 to 117, and we have expressly
19 accepted it at FR7.843.
20 Secondly, the evidence suggests that there were at
21 least two soldiers who fired, one of whom is known and
22 admitted to have been F. Everybody appears to agree
23 about the two, but we specifically draw attention in
24 FS7.2232 to 2251. Barr & Co's submissions are at
25 FS6.111 and Madden & Finucane's submissions at FS1,
1 2627. I apologise if I have overlooked anybody, but
2 I think that means we are all either in agreement
3 because of submissions we have made or because none of
4 those submissions is challenged by any party in the
5 replies.
6 The fourth point we make is that the evidence is
7 that F fired two shots, and only two. That was his
8 evidence. It was Lieutenant 227's evidence -- you will
9 recall he was the man upon whom, understandably,
10 considerable reliance is placed. He sees him fire two
11 shots and it is accepted that one of those shots must
12 have been the one that killed Mr McGuigan. Of course we
13 accept the sequence that he -- whatever the other
14 sequence is does not matter for the purposes of this
15 submission -- must, by definition, have been the last.
16 So it would appear that F's two shots, if that evidence
17 is right, are the last two shots fired, and that another
18 soldier fired a number of others.
19 The nineteenth question relates to Colonel Loden's
20 shot-list, which my learned friend Mr Bradly will deal
21 with next week, if that is acceptable.
22 The last question you asked, sir, was about
23 Mr Mahon. You invited comment on our submission that
24 some of the Mahon transcripts demonstrate a lack of
25 candour with this Tribunal.
1 We have, of course, read what was written and
2 listened to what was said. We respectfully maintain the
3 submission that we made about that lack of candour,
4 limited to the extent that it is now limited.
5 Those are the answers that I feel able to give to
6 your questions, sir.
7 I am conscious that I may not adequately have dealt
8 with Mr Toohey's question; if so, I apologise and invite
9 him to put it again and I will see if I can do better.
10 Subject to that, I do not think there is anything
11 further that I can properly say.
12 MR TOOHEY: I may accept that invitation.
13 MR GLASGOW: Please do. The other thing is, sir, if you
14 prefer to, when you have reflected on what I have said
15 and looked at it, ask me a question next week -- I would
16 prefer to have notice of it, one is not happy
17 necessarily dealing with things on one's feet -- I will
18 try now or I will try even harder next week, if you
19 would like me to.
20 MR TOOHEY: I will accept that suggestion also.
21 LORD SAVILLE: Mr Bradly, you are going to deal with a
22 point, I understand it.
23 Submissions by MR BRADLY
24 MR BRADLY: Sir, yes, I am grateful.
25 The first of the questions I am to deal with is
1 question four, which relates to General Tuzo's comment
2 as to certain measures.
3 Sir, as to this, the individuals represented by this
4 team have no positive case to put forward as to what
5 measures General Tuzo may have been referring to, but
6 one of our clients, General Ford, is of course affected
7 by the suggestions that have so far been made.
8 Sir, as to what has already been suggested by both
9 my learned friends Mr Harvey and Sir Louis Blom-Cooper,
10 we would make the observation that General Tuzo's
11 comment is unlikely to have related to the Londonderry
12 march.
13 Sir, we say that on the basis of the terms of the
14 minute itself, which I would ask the Tribunal very
15 briefly to look at. It is at G52.315.
16 Sir, this is the first page of the minute in which
17 the comment appears. The point is just this:
18 paragraph 1 of the minute is dealing with processions,
19 particularly in terms of general policy, and it is in
20 this paragraph that the committee is recorded as having
21 agreed to the renewal on the ban of marches for
22 a further twelve months.
23 That deals with the general policy. If we go over
24 the page, please, and highlight the top half of that
25 page, if we could. Sir, I am pointing to paragraph 2.
1 This is the paragraph in which the GOC is recorded as
2 having made the comment, and it is entitled "Schedule of
3 incidents and situation report". The comment is made
4 with specific reference to the meeting with businessmen
5 which took place in Londonderry, and that must be the
6 meeting on 7th January attended by General Ford.
7 Sir, there is then paragraph 3, which reads:
8 "A rally in Lurgan on 15th January, and a march in
9 Londonderry on 16th January."
10 Sir, it is those paragraphs which are relating to
11 the marches then still thought to be, so far as
12 Londonderry is concerned, on the 16th. So we say, had
13 this been a measure specifically related to the march,
14 it would more properly have been recorded in that third
15 paragraph.
16 Sir, I am, of course, in the position that while
17 no-one has submitted that the certain measures relate to
18 the measures set out in General Ford's memo, probably
19 dated 10th January 1972, the Tribunal will recall that
20 when questioned about this part of the minute,
21 General Ford accepted that it was a logical deduction
22 that it was those measures, the measures in his memo, to
23 which General Tuzo may have been referring.
24 Sir, that may or may not of course be right. As
25 General Ford prefaced his observation, he was not at the
1 meeting. But what we would emphasise is that in this
2 minute the GOC is emphasising the necessity of solving
3 whatever problem it was within the law.
4 That is also reflected in the minutes of the next
5 meeting of the JSC. Could we very briefly look at
6 G63.377 and highlight the main body, paragraph 1,
7 please.
8 Sir, the same issue is dealt with here under
9 paragraph 1 in this minute, and the GOC said the Army
10 were dealing with the problem as best they could,
11 employing a variety of tactics within the constraints of
12 the law.
13 So, sir, whatever the measures were, it is
14 a consistent theme that they are to be carried out
15 within the law.
16 Sir, the next question I am to deal with relates to
17 the orders which sent soldiers into the Bogside on
18 30th January 1972. Sir, the question is really three
19 questions: what the order was; by whom it was given, and
20 to what extent and in what respects it was contravened.
21 Sir, the submissions we make on behalf of our
22 clients are contained in the section starting at
23 FS7.876. In summary, and in answer to those questions,
24 the second one: by whom was the order given, is the most
25 straightforward. The order was given by
1 Brigadier MacLellan. It was given to 1 Para, in the
2 form of its main headquarters in the vehicle known as
3 the Gin Palace through the brigade major, who spoke the
4 words over the secure net.
5 It is, of course, our position that an order was
6 given and, sir, the most obvious piece of evidence
7 supporting the fact that an order was given is, of
8 course, the fact that reference to the order appears in
9 both the 8th Brigade log and the log kept by 1 Para, the
10 watchkeepers in the Gin Palace.
11 Sir, so far as the terms of the order are concerned,
12 you will have seen from our written submissions that the
13 position we take is that the Tribunal should go back to
14 the evidence which Brigadier MacLellan and
15 Colonel Steele gave to Lord Widgery, the essence of
16 which is that the order was for the arrest operation to
17 be launched; by that I mean launched in whatever form
18 the commanding officer of 1 Para had decided, in terms
19 of the number of companies, in particular, and,
20 secondly, that there was no geographical limitation on
21 its movements.
22 The only limitation there was is to be found in the
23 phrase "no running battles" and "not to get involved
24 with the peaceful demonstrators at Free Derry Corner".
25 Sir, so far as contravention is concerned, the
1 summary of our position is that there was no
2 contravention of the order. It may be that the second
3 of the Mortar Platoon Pigs to enter the Bogside went
4 further down Rossville Street and took up a position
5 further south than those in command of the operation,
6 certainly at 8th Brigade, had anticipated.
7 In fact, the Tribunal will recall Sergeant O's
8 evidence to the effect that the vehicle in fact went
9 a bit further than he, commanding it, had intended.
10 But, sir, the position we have taken in our submissions
11 is that that does not, did not amount to a breach of the
12 terms of the order as given.
13 Sir, what must be addressed, of course, is the
14 evidence which now General MacLellan gave to the
15 Tribunal. The Tribunal, of course, heard all that
16 evidence and will consider it. We say of that evidence
17 that it is not conclusive of this issue. It is given to
18 you 30 years or more after the events in question and we
19 urge the Tribunal to look at it, of course, but look at
20 all the other evidence surrounding this issue, in
21 particular what the witnesses said at the time of the
22 Widgery Tribunal, when things were much fresher in their
23 minds.
24 There is also, of course -- perhaps raising more
25 questions than providing answers -- the terms of the
1 record of the order as made by 1 Para on the day and
2 that record clearly refers to more than one company
3 taking part in the operation -- confusingly, of course,
4 identifying the wrong company, if one looks at the
5 operation, as it did in fact take place.
6 Sir, I am terribly sorry, may I just say, I had
7 three questions, not two. I can deal with it after the
8 short break.
9 LORD SAVILLE: I think that would be most convenient.
10 (10.55 am)
11 (A short break)
12 (11.05 am)
13 SIR ALLAN GREEN: Before Mr Bradly starts, can I say this:
14 the mobile telephone that rang today was mine, and
15 I want to apologise to the Tribunal and also to
16 Mr Glasgow, who was on his feet at the time. I am
17 sorry.
18 LORD SAVILLE: Except I have one myself, Sir Allan, I would
19 have been minded to have confiscated it.
20 MR BRADLY: Sir, question ten is headed "Soldiers' weapons"
21 and goes to the apparent differences, on the evidence,
22 between the weaponry taken into the Bogside by
23 Support Company and that carried by Charlie Company.
24 Sir, as to that, may I just say this: the Tribunal
25 will recall the evidence of Sergeant O of the
1 Mortar Platoon of Support Company, who told the Tribunal
2 that there was a change in the weaponry carried by his
3 platoon after the shot that hit the drainpipe at the
4 Presbyterian Church. His evidence was that the platoon
5 then, a number of them, changed their batons for SLR in
6 response to the firing of that shot. Sir, that evidence
7 is at Day 333, page 013, line 23.
8 Sir, the evidence of soldiers in C Company is in
9 fact to similar effect, to the extent that those
10 soldiers gave evidence to this Tribunal on this
11 particular issue and, sir, we have been able to identify
12 the evidence of five soldiers whose evidence is to the
13 effect that they took, or the majority of the people in
14 their platoons took batons into the Bogside with them,
15 but after hearing gunshots or seeing, in some cases,
16 gunmen, when the vehicle arrived in Chamberlain Street
17 those soldiers too exchanged their batons for their
18 SLRs.
19 Sir, those witnesses are the following: INQ1799,
20 INQ0012, INQ1334, INQ0587 and INQ0559.
21 So, sir, the position between the two companies is
22 not perhaps as different as might initially be assumed.
23 Sir, the question goes on to deal with the
24 inferences which might be drawn from these differences.
25 Sir, I have already said, of course, that the
1 differences may not be that great and, clearly, the
2 emphasis on SLR, in both cases, was as a result of
3 sighting of gunmen, or hearing gunmen fire.
4 Sir, I do not know whether I can assist you any
5 further with that.
6 LORD SAVILLE: No, thank you.
7 MR BRADLY: Sir, that really is the end of my submissions.
8 Submissions by MR ELIAS
9 MR ELIAS: Sir, of course we are aware this is not the time
10 for specific line-by-line analysis of evidence or points
11 made for or against previous Aitken propositions. We
12 have committed to paper our representations on them all
13 and our answers to the submissions of others, and whilst
14 acknowledging, as I do, the odd typographical and
15 factual error, we stand by the thrust of all our
16 arguments set out in our previous submissions.
17 Your letter, 6th June, however, did invite the
18 parties, if they saw fit, to, as I think it was put,
19 draw strings together from submissions that have been
20 tendered by various parties and I would propose to do
21 that, albeit briefly, if I may, in particular in one
22 area.
23 Leaving aside, of course, the issue that was
24 addressed yesterday as to standard of proof, we propose
25 at this stage to ask the Tribunal to consider the proper
1 approach to the problems confronting it and to look at
2 the validity of our arguments taken in the round,
3 particularly in relation to the existence or otherwise
4 of hitherto unidentified gunmen; the existence or
5 otherwise of hitherto unidentified casualties and the
6 activities of the IRA and to contrast them with what we
7 submit are plainly the "black and white" stances of
8 other interested parties and to ask why such
9 generalised, unyielding submissions have been made to
10 you.
11 We have never sought to say that every piece of
12 civilian evidence of the existence of a gunman or
13 casualty is necessarily true and accurate, any more than
14 we have asserted that every soldier who claims to have
15 seen a gunman is necessarily telling the truth.
16 "Blanket" submissions of this kind would likely be as
17 fallacious as plainly they are unhelpful.
18 Similarly, one-eyed analyses of any class of
19 evidence produces a wholly false and unnatural picture.
20 Thus, if I may take an example from the reply of
21 Madden & Finucane to the Aitken submissions, found at
22 FR1.16, paragraph 1.3.1.13.1, beginning:
23 "The important point ..."
24 They say here:
25 "... each civilian witness [note the word
1 'civilian'] must be judged as an individual and the
2 quality of their evidence or their motivation judged on
3 that basis. They do not represent a homogeneous group
4 and should not be viewed as such."
5 On its face, of course, this is a wholly
6 unexceptionable comment, with which we would wholly
7 agree, but as the Tribunal well knows, it is not the way
8 that Madden & Finucane suggest that soldiers, police
9 officers of the RUC and SIB policemen should be judged.
10 They, as the Tribunal knows, are dismissed en bloc.
11 Why should it be that there is one rule for
12 civilians and another for other witnesses?
13 We submit the answer is, of course, because the
14 evidence of those other witnesses has to be destroyed to
15 arrive at what we submit are the "preordained"
16 conclusions that Madden & Finucane require.
17 Indeed, although they purport in that extract we
18 have just looked at to call for individual consideration
19 of the evidence of civilians, the Tribunal will have
20 noted that they are obliged to suggest in their
21 submissions that all those who claim to have seen
22 a civilian gunman, other than the four gunmen accepted
23 now by Madden & Finucane, are mistaken or untruthful.
24 As we submitted earlier, sir, analysing and
25 stretching the evidence so as to fit such preordained
1 conclusions requires any pieces of the jigsaw which do
2 not fit the picture to be discounted. The Aitken team
3 is accused of Madden & Finucane of being speculative in
4 our consideration of civilian gunmen, civilian
5 casualties, and the undisclosed IRA activity. If by
6 this is meant that we produce no further evidence which
7 establishes beyond doubt precisely what each gunman did
8 at every stage, then fundamentally we would not disagree
9 with them. But that one ends up speculating as to such
10 matters we submit is a direct product of the IRA's
11 failure to account for who these persons were and what
12 they did on the day.
13 Of course, we rely upon the evidence which is before
14 the Tribunal from a number of different sources and,
15 while we would not submit that mistake or confusion
16 could be ruled out in occasional cases, the long arm of
17 coincidence can only be stretched so far.
18 It is, we submit, wholly unrealistic to suggest
19 that, with the sole exception of Father O'Gara's gunman,
20 each and every civilian account of unidentified gunmen
21 is unreliable or worse.
22 The real point that we seek to make in this regard
23 at this stage is that it does not further the cause of
24 "the truth", or we submit this Tribunal's task, to seek
25 unreasonably and without analysis to dismiss such
1 evidence upon the basis that it does not fit the desired
2 jigsaw picture.
3 A further very good example, we submit, of this
4 unreasonable tactic occurs in the reply submissions of
5 Lord Gifford. Could I take you to FR4.5,
6 paragraph 1.16, where Lord Gifford says this:
7 "We invite the Tribunal to reject the contention
8 made by the Aitken team at chapter 6, paragraph 508 that
9 the photograph 428 may show a man holding a firearm
10 carried under a coat or in a holdall [you recall the
11 photograph I am sure.] We have made submissions urging
12 caution in the use of this photograph due to the
13 uncertainty of its provenance. We emphasise that the
14 dark shape referred to by the Aitken team is just as
15 consistent with being the shape of a second man in
16 a bent forward position, partly obscured by the man in
17 the light jacket, as it is with being the shape of
18 something carried by the latter man."
19 Whilst inviting rejection of our submission that the
20 photograph may show a man holding a weapon, they go on
21 to concede that their speculation as to what the man is
22 doing is just as consistent as the Aitken line. In
23 other words, the Aitken proposition cannot be sensibly
24 eliminated, but because it is evidentially inconvenient,
25 such a concession cannot be made by Lord Gifford. We
1 invite the Tribunal to reject the contention.
2 In similar fashion, Madden & Finucane submit, in
3 relation to the same photograph in their reply -- I do
4 not take you to the reference to it:
5 "In any event there is absolutely no evidence that
6 the figure in P428 is carrying anything at all, never
7 mind anything suspicious."
8 Likewise, Madden & Finucane are equally dismissive
9 of our suggestion that the figure in EP25.6 is holding
10 an object in his left-hand. Could we have the
11 photograph EP25.6 on the screen, please.
12 Again, I do not take you to the extract. It is very
13 brief. Let me simply cite it as FR1.111. What
14 Madden & Finucane say about this photograph, is this,
15 with regard to photograph EP25.6:
16 "... it is not at all clear that there is anything
17 in the man's left hand. The Aitken team's submissions
18 on this matter constitute no more than conjecture and
19 speculation."
20 The logic of Madden & Finucane's position must be
21 that the man in the picture may have had something in
22 his hand -- certainly something causes the shadow in the
23 picture. If this is so, why is it not so accepted and
24 the possibility dealt with?
25 We submit, sir, it is apparent that anything which
1 even raises the spectre of there existing some
2 unexplained aspect of this case has to be rubbished, if
3 you forgive me using the word, and discarded, not only
4 so as to arrive at predetermined conclusions, but to
5 ensure that the Tribunal is not able to say that "the
6 truth" is not determinable.
7 It is no doubt for the same reason that
8 Madden & Finucane are compelled to submit on the law, in
9 their reply -- again I will not ask it to be put up, it
10 was one line at FR1.315:
11 "The Tribunal has an obligation to establish the
12 truth."
13 We submit this plainly misstates the Tribunal's
14 function. It must seek the truth, but it cannot have an
15 obligation to find it. Doubtless such a flawed
16 proposition arises from the fear that any other approach
17 might allow the Tribunal to find that the truth cannot
18 be discerned in certain areas.
19 Without, sir, referring again to their detailed
20 submissions, the Tribunal is well aware that, broadly
21 speaking, it is the families' submissions that there
22 were no unidentified casualties, no unknown gunmen and
23 that the accounts given by the OIRA and PIRA witnesses
24 are basically true.
25 Thus it is said the Tribunal knows all that has to
1 be known to make its findings. However, as a fail safe
2 position, they go on to submit, as you know, that even
3 were the Tribunal to conclude that there may have been
4 another casualty or another gunman or more than one,
5 they obviously played no part in the events of the day
6 and, in relation to the events of Bloody Sunday, did not
7 influence the course of history one jot.
8 So it is that at their reply, FS1.24 -- I ask that
9 that be put on the screen -- paragraph 1.6.4, we find
10 this:
11 "It has never been the case advanced by the families
12 of the deceased and wounded represented by
13 Madden & Finucane at this Inquiry that there were no
14 civilian gunmen who fired on Bloody Sunday. The
15 statement by Mr Glasgow ... is simply wrong. The
16 submission made on behalf of those who pressed for this
17 Inquiry is that such civilian gunfire as was directed at
18 the Army on Bloody Sunday did not justify a single
19 soldier firing at a single civilian in the circumstances
20 that any of the deceased and wounded are known to have
21 been shot."
22 Yet again we submit, the reasons for such
23 a submission are obvious -- the reliable basis for them
24 very much less so. A moment's thought: if there were
25 civilian gunmen hitherto unknown, how can it be
1 confidently stated that he/they did not justify a single
2 soldier firing at one of the known deceased or wounded?
3 Gunmen move about and the fact that one is seen at point
4 A does not mean that he was not at another time at
5 point B. If a soldier says he fired at a gunman at
6 point B and a civilian says he saw a gunman at point A,
7 it is of course entirely possible that the gunman in
8 question is one and the same person.
9 You will recall what Madden & Finucane said in
10 submissions as to Father O'Gara's gunman. We find that
11 at FS1.203. It is paragraph 5.8.14(viii). Could
12 I invite you to note the second word:
13 "The incident ['incident' in the singular]
14 concerning Father O'Gara's gunman has yet to be
15 explained in evidence by an IRA witness."
16 What does that mean in plain English?
17 It means that one gunman, hitherto unidentified to
18 the Tribunal, has not been accounted for by the IRA,
19 neither has his weapon, neither has his ammunition and
20 neither have his purposes. In those circumstances, why
21 should anyone make the assumption that he was involved
22 in one incident that day, merely because he was seen by
23 Father O'Gara for a moment in Rossville Street?
24 Put shortly, we submit that every unknown gunman who
25 existed on the day raises these hitherto unanswered
1 issues. Why has the IRA failed to disclose his
2 movements and intentions? Where was he and what did he
3 do? How many rounds did he fire and at whom or what?
4 Why have his weapons and ammunition been excised from
5 the accounting evidence of OIRA and PIRA, because you
6 will recall the detailed evidence we have been given as
7 to that? Under whose command was he? Why has he not
8 come forward? Which soldier would have been in
9 a position to see him, or might have been? How many
10 shots were fired at him and from where? Was he wounded?
11 Similar issues, of course, arise in relation to any
12 unidentified casualties.
13 Why have they remained so after 32 years,
14 particularly if their injuries were sustained as
15 non-combatants? It is simply no answer to say, as the
16 replies of the families do, that these people, even if
17 they existed, could not have caused any soldier to fire.
18 So, for the Tribunal, therefore, we submit the
19 position is as follows: if all the evidence of the
20 existence of additional gunmen and/or casualties could
21 be dismissed by you with certainty, then clearly these
22 factors played no part in the events. That must
23 logically be the case. But we submit that Father
24 O'Gara's gunman alone is stark testimony to the fact
25 that the evidence cannot be so dismissed.
1 Does anyone seriously doubt that if another civilian
2 witness, and not the priest, Father O'Gara, had been the
3 identifying witness, this gunman too, like the gunman
4 seen for example by Monica Barr, would have slipped into
5 the mists of those whose alleged presence was put down
6 to mistake, fantasy, or something of that kind.
7 Secondly, if there may have been a gunman as yet
8 unidentified, where was he and which soldier or soldiers
9 may have been telling the truth when that soldier or
10 soldiers claim to have seen and/or fired at a gunman?
11 Thirdly, if there may have been an unknown casualty,
12 where was he when he received, and what had he done to
13 come by his injury?
14 The consequence of concluding that there may have
15 been a gunman -- a fortiori, if more than one -- that is
16 a gunman hitherto undisclosed, is that the Tribunal
17 cannot necessarily know which soldier saw or fired at
18 him. Even if the evidence of a sighting is accepted and
19 is accurate, the Tribunal cannot know at which other
20 location or locations that gunman was, because he has
21 not come forward to tell you.
22 The Tribunal cannot know how many rounds he fired
23 and with what weapon. It cannot assess the impact of
24 the sound of any such firing. It knows, however, that
25 it may well have been deliberately misled by one or
1 other or both wings of the IRA as to the extent of the
2 operation carried out by them that day as well as,
3 I have indicated, as to the detailed accounts of how all
4 the weapons were stashed away, ammunition accounted for
5 and matters of that kind. It must follow, if there were
6 unidentified gunmen who fired, that you have not been
7 told the truth about that.
8 On the other side of the scales, as we made plain in
9 our overview submission, we have never sought to
10 challenge the fact that, for whatever reasons, some
11 soldiers, in all the circumstances of the day, may have
12 lost their fire discipline. Without wishing to suggest
13 that one can crudely equate the number of shots fired
14 with whether those shots, or any of them, were
15 justifiably discharged, it is nevertheless a stark
16 statistic, of the 108 rounds fired by 1 Para, over
17 50 per cent of them were fired by just four soldiers.
18 The Tribunal will also have in mind the striking
19 examples of soldiers who had not fired on the streets of
20 Northern Ireland before this day, and in many cases had
21 not fired after this day, and only fired during the
22 fateful events of Bloody Sunday.
23 So how must all this impact upon the Tribunal?
24 We submit that it is plain that the Tribunal will be
25 faced with many unanswered questions. Amongst them some
1 relating to the firing by soldiers, some relating to the
2 failure of the IRA properly to account for its
3 activities on the day. Such unanswered questions may
4 well cause the Tribunal to conclude that it is unable to
5 arrive at the truth of what happened in certain areas of
6 the case.
7 Thus, in assessing the evidence, for example, of any
8 soldier who claims to have fired at a gunman and faced
9 with the possibility, if not, as we would submit, the
10 probability, that the IRA has chosen not to reveal the
11 whole story about its personnel active on the day, there
12 may well be individual cases where the proper conclusion
13 to be drawn will be to recognise at least the
14 possibility that the soldier may be telling the truth.
15 Before turning to the questions, sir, briefly, I go
16 back to our first submissions to you.
17 The events of Bloody Sunday -- and I do not repeat
18 the detail -- but the events of Bloody Sunday, we
19 submit, were brought about by a wide mix of factors,
20 inter-relating and intertwined. It is almost certainly
21 the case, we submit -- and perhaps not surprising -- not
22 least because of the passage of time, that you do not
23 know, and cannot know the whole truth.
24 However, notwithstanding that, we stress that we do
25 not seek to prevent you from making findings of fact
1 where you properly can, but we do seek to persuade you
2 that accepting the submission of others that you can
3 rush to judgment in every area of the case and base
4 findings on the summary dismissal of swathes of
5 evidence, that that would be rash in the extreme.
6 Our submission is that all the evidence requires the
7 same rigorous and individualised consideration and, in
8 that way, rational, fair and just conclusions may be
9 drawn from it and no piece of evidence is arbitrarily
10 jettisoned merely because it appears to show the
11 different picture to that which one party desires.
12 Sir, I turn to the questions that you have raised,
13 and if I may answer those that appear pertinent to us.
14 The first is question five. That is the question of
15 infiltration of NICRA by the IRA.
16 I do not repeat the question that is posed, but
17 I do, if I may, say this: we note that the question uses
18 the phrase "even if it is right". We submit there
19 cannot be any doubt about the fact that it is right that
20 members of OIRA were members of NICRA, both at local and
21 at executive level. Indeed, we do not understand this
22 to be contested by Mr O'Donovan. We have in our
23 submissions and replies taken the case of Billy Liam
24 McMillen because he serves as a clear-cut example, where
25 the sometimes euphemistic titles of Official Republican
1 Movement and Republican Clubs have been stripped away.
2 Mr McMillen was described in NICRA circles as
3 a member of the Republican Clubs. He was
4 a long-standing member of NICRA and in 1971 he was
5 a member of its Executive. We do not quibble in any way
6 with the suggestion that one must be careful in
7 suggesting that men who are long deceased were members
8 of the Official IRA. But in Mr McMillen's case, there
9 can be no doubt that he was also the officer commanding
10 the Official IRA in Belfast. The entry in Lost Lives
11 states as much, and it was confirmed in evidence to this
12 Inquiry, specifically in relation to the time of
13 Bloody Sunday, by the witness OIRA 10.
14 We stand by the submission we have made, that NICRA
15 was infiltrated by the Official IRA. But it is clear
16 that the word "infiltration" has been used in different
17 senses in different contexts. May I take some examples?
18 In its own closing submissions, NICRA included a section
19 headed "Alleged infiltration of NICRA", but this section
20 of their initial submissions interpreted infiltration as
21 meaning suggestions that NICRA was "a front organisation
22 for subversive groups".
23 That was an allegation we had never made. In their
24 submission in reply, NICRA move away from this concept
25 of "front organisation" and suggest that a dictionary
1 definition of "infiltrate" denotes not just entering an
2 organisation secretly, but doing so for subversive
3 purposes.
4 The Cameron Report, 1969, stated that the civil
5 rights movement "attracted the attention of left-wing
6 extremists". The report was not here talking about the
7 IRA, but it went on to say:
8 "... some of whom by infiltration gained positions
9 of influence within the movement and their readiness to
10 provoke and profit by violence was crucial at various
11 stages in the disturbances."
12 The Cameron Report went on to comment that, at
13 a time before the split in the IRA, and before the IRA
14 had returned to violent acts of terrorism, that:
15 "... no secret had been made of [the IRA's]
16 consequent adoption of a policy which included
17 permeation or infiltration of bodies or organisations
18 which might operate in opposition to the current
19 Government of Northern Ireland."
20 The Tribunal will recall its own witness,
21 Aidan Hegarty, AH59, who described himself as
22 a relatively senior member of the Official Republican
23 movement in County Derry. In his witness statement, he
24 recorded that the 6 County Executive of the Official
25 Republican Movement "including the likes of
1 Malachy McGurran and Des O'Hagan who were clearly
2 interested in taking over the civil rights movement if
3 possible" and "in accordance with the policy of
4 infiltration, I did get involved in the North Derry
5 Civil Rights Association."
6 You may recall that in his oral evidence, Mr Hegarty
7 sought to resile from the use of the word "infiltrate"
8 because he said it denoted some subterfuge.
9 Sir, while we accept we should clarify what we mean
10 by infiltration, we would make the observation we are by
11 no means the first or the only ones to have suggested
12 that NICRA was infiltrated.
13 But if one avoids the label of infiltration
14 altogether, it is perhaps useful to take up NICRA's
15 approach in their written submissions of separating out
16 the question of whether the Official IRA had secretly
17 entered NICRA, from the question of whether in doing so
18 it had subverted NICRA's principles.
19 When we have submitted that NICRA was infiltrated by
20 the IRA, the primary point we have wished to make is
21 that the IRA had gained positions of real influence
22 within NICRA and, importantly, had done so secretly.
23 The case of Mr McMillen again serves as a useful
24 example. In our reply at paragraph 35 -- I do not ask
25 for it to be put up -- found at FR8.15, we made the
1 obvious point that either the majority of the NICRA
2 executive knew that they had the officer commanding
3 Belfast Official IRA as one of their members, or they
4 did not.
5 In fact, we suggest it is perfectly apparent that
6 they did not know that this was the case. NICRA
7 witnesses to this Inquiry have said as much, and even
8 these many years later in evidence to the Tribunal from
9 the witness box in this hall, they appeared in some
10 cases to be surprised, indeed sceptical, that
11 Mr McMillen was in the IRA.
12 So we say Mr McMillen must have entered, or at least
13 remained, on the NICRA executive secretly, in the sense
14 that he concealed from the majority of his colleagues
15 his military involvement or paramilitary involvement.
16 NICRA point out they did not vet membership, even of
17 its executive, but did have a power to expel members.
18 We do not seek to doubt that had the majority of the
19 NICRA executive known they had the OC of Belfast
20 Official IRA as a member, they would have expelled him.
21 But they apparently did not; and he was not expelled.
22 In asking itself whether the IRA held positions
23 secretly within NICRA, that is without disclosing their
24 true militarist roles, the Tribunal has a striking
25 example of the seriousness of this matter. On
1 20th May 1971, according to the documents available to
2 the Tribunal, Mr McMillen was recorded as being present
3 at the NICRA executive meeting, 20th May 1971. Two days
4 later, Saturday 22nd May 1971, the Official IRA in
5 Belfast, of which we are told Mr McMillen was the OC,
6 certainly at the time of Bloody Sunday, murdered
7 Corporal Robert Bankier of the Royal Green Jackets. He
8 was shot dead in Belfast, having been lured into an
9 ambush by stone-throwing youths. That is recorded in
10 Lost Lives at page 73.
11 We do not suggest for one moment that the majority
12 of members of the NICRA executive would have knowingly
13 permitted in their midst a man who was attending NICRA
14 executive meetings espousing civil rights during the
15 working week, while heading an organisation that was,
16 literally in this case, out murdering soldiers at the
17 weekend. However, that the head of the Official IRA in
18 Belfast had been able to obtain a position on the NICRA
19 executive without other members knowing of his
20 paramilitary connection is clear.
21 In this context, sir, we need also to return to the
22 whole question of Republican Clubs. The Tribunal is
23 familiar with the concern that we have raised concerning
24 the fact that by late 1971 the leaders of the Official
25 IRA were also leading the local James Connolly
1 Republican Club. The NICRA reply to this matter is
2 inadequate, in our respectful submission, and it
3 strikingly mischaracterises the true position. Again
4 I do not ask that it be put up. At FR10.15,
5 paragraph 30, NICRA refer to our having produced
6 "evidence that a number of members of the James Connolly
7 Republican Club in Derry were also Official IRA
8 members".
9 It might be one thing if mere members of the Club in
10 Derry were volunteers in the Official IRA. But of
11 course it is much more significant than that. At
12 paragraph 24, at FR8.184 -- again I do not ask it be put
13 up -- of our submissions, it is made clear that the
14 officers of the Club -- its chairman, vice-chairman,
15 secretary and press officer were all members of the
16 command staff of the Derry Official IRA. Thus it is not
17 that there was an overlapping membership, as NICRA try
18 to portray it; rather it is the case that the very same
19 people were directing and leading the military and
20 political wings of the organisation.
21 So it is that we say that the first and starting
22 point is through the label of "Republican Clubs". The
23 Official IRA had secretly secured representation, in the
24 form of positions of influence within NICRA.
25 Having established that this was so, we understand
1 why NICRA should ask, and the Tribunal looks to us to
2 clarify, whether we are going further in suggesting that
3 the Official IRA had thereby subverted NICRA's
4 principles.
5 We do not say there is evidence that the purposes of
6 NICRA had been subverted such that they were espousing
7 violence or any party political agenda. NICRA's
8 statements, though politically charged, in the non-party
9 political sense, continued to espouse non-violence and
10 democratic means. So no, we do not say that those
11 members of the IRA who had gained positions of influence
12 within NICRA had managed to subvert it.
13 But this does not mean, and we submit it would be
14 naive to conclude, that those involved in the Official
15 IRA had secretly entered NICRA with wholly benign
16 motives, or with only a genuine concern for civil rights
17 in mind.
18 Had their motive been only to seek the furtherance
19 of civil rights, they would surely not have become
20 involved at all on the executive or indeed locally,
21 because their presence there could be damaging to NICRA
22 and its aims if their paramilitary connections were
23 known, or became known.
24 So in summary, the answer to the Tribunal's first
25 set of questions on this topic, we say this: the
1 Official IRA had secured representation by its members
2 within NICRA, without other members of NICRA or its
3 executive knowing that they had terrorists in their
4 ranks.
5 Two, the Official IRA have not thereby succeeded in
6 subverting the principles of NICRA -- NICRA continued
7 publicly (and, we accept, as a movement, genuinely) to
8 espouse non-violence and democratic means.
9 Thirdly, the precise motives of the Official IRA in
10 secretly gaining positions of influence within NICRA may
11 not be clear, but such motives, we submit, are unlikely
12 to have been benign.
13 The Tribunal next asks to what extent and on what
14 evidential basis is it said that any such infiltration
15 had any bearing on the events of the day.
16 We say at once we entirely accept that in terms of
17 the immediate events on the ground, as it were, the
18 issue of the infiltration of NICRA by the IRA is not
19 relevant. As NICRA acknowledge in their reply, we have
20 not, indeed never have asserted that NICRA was in some
21 fashion part of a violent conspiracy on Bloody Sunday.
22 But this does not mean that the infiltration of
23 NICRA by the IRA can be ignored. That NICRA did have
24 members of the IRA in position of influence has
25 a significant bearing on the wider issues that the
1 Tribunal must address. We say that the relevance is
2 five-fold.
3 Firstly, as we have made clear previously, some of
4 the interested parties have invited the Tribunal to draw
5 adverse inferences from a variety of comments about
6 NICRA in Army, Security Service and Government
7 documents. We say the fact that NICRA had been
8 infiltrated and that the influence of the Official
9 movement was on the increase justified a large degree of
10 suspicion about those seeking to influence NICRA and
11 that, without wishing to argue about the rights and
12 wrongs of individual comments in those documents to
13 which I have referred, a significant degree of suspicion
14 about NICRA by the Security Forces was only to be
15 expected. Therefore, such adverse inferences as you
16 have been invited to draw would be inappropriate.
17 Secondly, the Security Forces and Government were
18 rightly concerned about NICRA's decision to return to
19 the tactic of large-scale public marches, when such
20 marches were unlawful and when they would be likely to
21 lead to incidences of rioting and violence. That is so
22 even though such violence was contrary to the principles
23 of NICRA and, no doubt, to the desire of the majority of
24 its executive.
25 It is for that reason we have stated in our reply --
1 if I could have this put up, please, at FR8.14,
2 paragraph 33. I take it about half way through the
3 paragraph:
4 "The Tribunal will need to consider whether policies
5 that might be thought to assist the Official IRA's
6 campaign (for example securing incidents of
7 confrontation between the civilian Catholic population
8 and the Army in the hope both of alienating the Army yet
9 further from the Catholic population and securing
10 support for the IRA) might have been furthered by OIRA
11 in part through the influence of the Republican Clubs
12 and the Official Republican movement in NICRA,
13 notwithstanding that NICRA as an organisation only
14 advocated non-violent means."
15 It would be quite wrong to suggest -- we do not --
16 that such malign thinking was anything like the only, or
17 even the dominant thinking in NICRA's decision to hold
18 large-scale marches. But that this reasoning may have
19 influenced some in NICRA, whether locally or nationally,
20 is a possibility that cannot be reasonably ruled out in
21 view of the infiltration and the influences, we submit,
22 of the Officials in NICRA.
23 Thirdly, we submit the infiltration issue is
24 relevant because of what it shows about the Official
25 IRA. Most particularly, the willingness of the Official
1 IRA to secure positions of influence within NICRA for
2 some of its senior members, and to do so effectively by
3 deception. This should tell the Tribunal much about the
4 duplicity of the Official IRA. We of course say that
5 duplicity continues to this day, in the Official IRA's
6 failure to admit to this Inquiry the full scale of its
7 involvement, and its transparent lies in respect of such
8 matters as the reason for OIRA 1 being present with
9 a rifle in Columbcille Court.
10 Fourthly, we do maintain that the influence of the
11 Officials in NICRA would have meant that it was privy to
12 NICRA plans for the march. While NICRA maintain in
13 their reply essentially that NICRA's planning was known
14 to every reader of the Derry Journal, such matters as
15 the precise route of the march were not, as we
16 understand it, published in advance. There are articles
17 which the Tribunal has, the Derry Journal, which may
18 assist in this regard. In reply to Mr O'Donovan's
19 criticism of our submissions on this subject, I would be
20 the first to acknowledge that there is a paucity of
21 direct evidence, but that may be inevitable, given the
22 nature of the organisation we are dealing with. And
23 I would be the first to acknowledge there is a paucity
24 of direct evidence to establish whether in fact the IRA
25 used their position of influence on this occasion to
1 gain knowledge of NICRA's plans, and if so, what, if
2 anything, they did with such information.
3 But we say that on any view of the evidence, the
4 Tribunal must be concerned that in the early stages of
5 the events, an OIRA member fired from a concealed
6 position, close to the route of the march, which route
7 was not known in advance to the Army, and close to
8 a position where rioting had occurred. Was this merely
9 coincidental? The Tribunal will need to scrutinise
10 particularly carefully how and why that came to be so
11 and whether it accepts the explanation, such as it was,
12 of OIRAs 1 and 2. Has the Tribunal really had a full
13 and honest explanation from the Official IRA of who its
14 snipers were on the day, where they were placed and why,
15 and how they came to be placed in these positions?
16 Fifthly, and finally on this point, as to the
17 relevance of infiltration, we say it would have been
18 a highly material factor in the Security Forces not
19 liaising with NICRA over its intentions in respect of
20 controlling the march. We submit that Sir Louis's
21 perhaps unworldly suggestion that the Army should have
22 been working with NICRA on how the march was to be
23 policed and controlled is baffling, in the face of the
24 fact, one, the march was illegal and, two, the Army
25 would have known that the presence of IRA members within
1 NICRA. Is it seriously suggested that the Army should
2 have told NICRA how, when and why the march was to be
3 stopped when they would have had the suspicions to which
4 we have referred and every day they knew there was
5 a risk of soldiers, at barriers and checkpoints, being
6 sniped at by the IRA?
7 For all these reasons, sir, we say that the fact
8 that IRA terrorists had gained positions of influence
9 within NICRA is relevant, and in a number of different
10 ways, to the background issues which the Tribunal must
11 consider.
12 Sir, that is what we say about that question. May
13 I move on to question eight, which relates to NICRA
14 photographs, merely to say this about it, unless you
15 invite me to go further.
16 We understand that the question was particularly
17 focused on NICRA, and to get the explanation of their
18 sequence of photographs. I am happy to deal with the
19 matter. We made full submissions on the point.
20 We do not accept the explanations that were given
21 yesterday by Mr O'Hanlon as to what the photographs, the
22 videos show. As I say, those submissions we have made
23 in detail. I am happy to go through our submissions
24 again if the Tribunal thinks there would be any
25 benefit --
1 LORD SAVILLE: I do not think there is, Mr Elias. The long
2 and the short of it is that you stand by the account and
3 sequence of events that you have set out in great detail
4 in your submissions.
5 MR ELIAS: Sir, we do. I will simply add this -- the
6 Tribunal will look at it in its own time -- the
7 photograph of Colonel Tugwell, not referred to I think
8 by Mr O'Hanlon, showing the movement of persons down
9 William Street towards the barrier in our submission
10 reveals the flaws in the argument that Mr O'Hanlon put,
11 but I simply leave it there.
12 Sir, I turn to question six. That is the issue of
13 risk, if I can put it in shorthand, and say only
14 this: it is not our intention to address the Tribunal
15 further on the question of risk, the question of the
16 risk that the demonstration posed.
17 May I explain why: because of the gravity of the
18 original allegations, and indeed of the amended
19 allegations of McCartney & Casey, against Sir Arthur
20 Hockaday and Mr Stephens, the Tribunal will appreciate
21 that we felt it appropriate to make particularly
22 detailed submissions, including what risks were
23 foreseeable and foreseen, in both round one of our
24 submissions and in the reply phase. We take the view it
25 is not going to assist you if I merely paraphrase those
1 submissions at this time.
2 We would, however, comment that the broad thrust of
3 each of the Allen & Overy questions, which you set out
4 in your question to the parties on behalf of the then
5 Ministers applies equally, and perhaps all the more to
6 the civil servants whom we represent. We say "all the
7 more" because even McCartney & Casey who, alone amongst
8 the many representatives of the families, make
9 allegations against the two civil servants that we
10 represent, have stated that the responsibility which
11 they still seek to maintain in respect of our clients
12 is, in their words "less clear" than that of the clients
13 of Allen & Overy.
14 Sir, the Tribunal will hear from Lord Gifford next
15 week and the answers, if any, he can give to the
16 Allen & Overy questions. If at that stage the Tribunal
17 considers it would be of any assistance to hear us on
18 any particular points further to our written
19 submissions, we would be happy to deal with it. If we
20 may for the moment, we will leave our submissions on
21 that point there.
22 Sir, so far as the other questions are concerned, we
23 stand by what we have said and have nothing further to
24 add.
25 Sir, those are our submissions.
1 LORD SAVILLE: Thank you very much, Mr Elias.
2 SIR ALLAN GREEN: Sir, I see the time, I am in your hands
3 entirely. I am very happy to start, on the other hand,
4 if you would prefer me to do so after the adjournment,
5 then I am very happy to do that.
6 May I indicate straightaway to the Tribunal that
7 I do not propose to address it, save in answering the
8 Tribunal's questions to the best of my ability.
9 LORD SAVILLE: Do you have any estimate as to how long you
10 are likely to be?
11 SIR ALLAN GREEN: Sir, I would think I am going to be about
12 half an hour or 40 minutes, something of that order.
13 LORD SAVILLE: It may be a good time, Sir Allan, in that
14 case, to stop for lunch and start again, please, at
15 12.40.
16 (11.55 am)
17 (The Short Adjournment)
18 (12.40 pm)
19 Submissions by SIR ALLAN GREEN
20 SIR ALLAN GREEN: So far as the Tribunal's questions are
21 concerned, the ones that I was proposing to answer are
22 in fact only numbers 13, 15, 17 and 18. Of course, if
23 the Tribunal feel that I can offer any worthwhile
24 assistance on any of the other questions, then I would
25 be glad to try and do so, but I adopt, and I make it
1 clear straightaway, everything that has been said so far
2 by Mr Glasgow and Mr Bradly and Mr Elias, insofar as
3 those other questions are concerned.
4 Can I come to question 13, if I may: the
5 accountability of the soldiers.
6 Here, of course, I have to deal with the
7 accountability of Soldier H, for his actions on the day
8 in question. His evidence is, in part, and I accept
9 this straightaway, wrong, in an important part. It is
10 wrong as regards the 19 shots which he has always or
11 almost always maintained were fired in
12 Glenfada Park North. He said in his Eversheds statement
13 that he understood that the evidence did not support
14 that at all. When he was questioned first by my learned
15 friend Mr Christopher Clarke, he reverted to his stance
16 that that was where he fired the shots, but when
17 Mr Mansfield questioned him, he did concede again that
18 the evidence demonstrated that he was wrong about that
19 and that the shots must have been fired elsewhere
20 because the only shot that went through a window in
21 Glenfada Park was at number 57, and it went through
22 a bedroom window into a wardrobe and embedded itself in
23 the wall. That was the only shot that was fired through
24 a window in Glenfada Park North.
25 So several questions arise, but one of them, a very
1 important one, is: if he did indeed fire a total of 22
2 shots and if he did not fire 19 through the window that
3 he insisted he had fired through, where did he fire
4 those shots?
5 We have tried to assist the Tribunal as far as we
6 can in our first submissions, chapter 5, the 19 shots
7 and alternative location. I have to deal, and I do so
8 quite shortly, with his credibility.
9 What he has said is undoubtedly wrong, and I concede
10 that straightaway, and he did ultimately. But the state
11 of mind in which he gave those various accounts is
12 something which is open to question.
13 At one end of the scale -- and this is what the
14 representatives of the families have submitted -- he is
15 simply a liar who knew perfectly well he had fired the
16 shots and was not going to say so, but was going to come
17 up with some ludicrous tale about the window.
18 That is at one end of the spectrum. At the other
19 end of the spectrum you have a young soldier who was
20 very frightened, as he has said on more than one
21 occasion, and confused and it may be that after the
22 event, as is commonplace in other cases, the memories of
23 what must have been a traumatic day for him as well as,
24 doubtless for many other people, especially the citizens
25 of Derry, has obliterated it from his mind, and it may
1 be that, as the sergeant major said, if I could have on
2 the screen for a moment from our responses, FR9 at
3 page 29, what CSM Lewis said to Peter Taylor in the
4 interview, the few lines there:
5 "He just didn't seem to know, he didn't seem to have
6 an excuse as to what he had done with that ammunition,
7 he just didn't seem to know what he had done with it.
8 He could, as far as I was concerned, he could have
9 dropped the bloody magazine on the floor, the magazine
10 of 20 rounds, he could have dropped it on the floor.
11 I don't think he would have known at the time, I don't
12 think he was aware."
13 It may be, in contrast to a position where he
14 cynically gave an account which he knew to be untrue and
15 where he was in full recollection of the true
16 particulars of what he had done, it may be if he did
17 give a false account, and his account, as I say, is not
18 an accurate one, that he did so in those circumstances;
19 he was required of course to give an account, first of
20 all to Major Loden and then to the Royal Military Police
21 and subsequently to the Tribunal that Lord Widgery
22 conducted, and it may be that that was the dilemma that
23 he found himself in.
24 Our submission to you would be that you should not,
25 without more, simply brand him a liar in the sense that
1 the representatives, my learned friends who appear for
2 the families, have said.
3 As far as the other shots that he fired, there are
4 a number of possibilities, the other shots that he fired
5 in Glenfada Park.
6 The first possibility is that he has in fact told
7 the Tribunal the truth, that he did indeed fire at
8 people, one of them who had a nail bomb and dropped it
9 and another who sought to pick it up and turned and ran
10 away with it, but I have to accept straightaway that
11 that evidence is not supported by any of the civilian
12 evidence and it may be that, reviewing the evidence as
13 a whole, that account is rejected.
14 A further possibility arises, and my learned friend
15 Mr Christopher Clarke very fairly in his closing
16 questions to Soldier H, put this possibility to him.
17 That was, that in a state of panic he mistakenly thought
18 that there were people who threw nail bombs or picked up
19 nail bombs and fired -- he fired at them.
20 He rejected that, in the sense that he said he did
21 not think that was what happened and he has maintained
22 throughout that the people he fired were people armed
23 with nail bombs, one of them who tried to throw one, and
24 a second who picked one up and he thought was intending
25 to throw one.
1 In our submission, on the whole of the evidence in
2 the case, one cannot be sure that that second
3 possibility should be rejected. It may be that there is
4 room for a genuine mistake of fact, in a man who was
5 terrified, who was perhaps aware of his fellow soldiers,
6 one of whom was a corporal and the other a private, who
7 were firing at the same time, and so confirming his view
8 that he was under threat. It may be that, in those
9 circumstances, with the added disadvantage that he was
10 wearing a respirator which could not have assisted his
11 vision and perception of what was occurring, although he
12 would not have it when it was put to him by
13 Mr Christopher Clarke, was or may have been genuinely
14 mistaken as far as that was concerned.
15 Can I turn to the suggestion that has been made, the
16 broad suggestion that he may have been responsible for
17 shooting in a number of other areas, because of course
18 if he fired 19 shots, which were not fired, or put it
19 this way: 18 of which were not fired in Glenfada Park,
20 he may have fired the one that went through the window,
21 then those have to be accounted for in some way.
22 As I say, it may be that he is simply unable to
23 account for them because, in accordance with the
24 impression derived by Company Sergeant Major Lewis, he
25 simply does not know.
1 We have looked at the evidence and considered it
2 carefully and there are a number of possibilities.
3 I would like to look literally for a moment or two at
4 the various locations where he may have fired. The
5 first one is to the south of Kells Walk, what has been
6 referred to on occasions as Wilford's Wall. He was
7 undoubtedly at Wilford's Wall, there is no dispute about
8 that at all, along with other members of his platoon.
9 He has always said that he did not fire any shots
10 there. One is reluctant to rely -- and perhaps can be
11 criticised for doing so -- on anything that 027 has
12 said, but Soldier 027 has never alleged that Soldier H
13 was one of the people who was firing at that juncture.
14 Madden & Finucane said that he could be tied into
15 the actions of the others, on a basis of joint
16 enterprise, but, very fairly, and properly in our
17 submission, Mr Arthur Harvey has abandoned that, he does
18 not seek to rely on that proposition and, therefore,
19 I need not deal with it.
20 But my submission is, that although there is of
21 course a bare possibility that he fired at that stage,
22 there is no evidence from which the Tribunal could
23 say: we are sure he fired at that location.
24 The second is Glenfada Park North. He admits that
25 he fired there and it is of course the extent of the
1 firing that is in dispute. From Glenfada Park there was
2 firing by a soldier or soldiers in Abbey Park. Our
3 submission, again, and we have dealt with it fully in
4 our reply to the submissions that Lord Gifford has made,
5 our submission is that there is no firm or satisfactory
6 evidence that he ever went into Abbey Park. We have
7 dealt with that in detail and, unless the Tribunal want
8 me to go over the ground again, which of course I will
9 do if requested to do so, then I leave it there and rely
10 on the written submissions we have made to that effect.
11 The next location is Joseph Place. Here I deal also
12 with question 18 which has been posed.
13 Sir, you used yourself a very vivid verb, of hosing
14 and also, I think, adverted to the presence of a tall
15 soldier. In case it is in your mind or your colleagues'
16 mind or indeed anyone else's that Soldier H may have
17 fired across from Glenfada Park North towards
18 Joseph Place, I would like to take a moment or two, if
19 I may, to have a look at the evidence relating to
20 sector 5. Sir, it is an exercise that will take only
21 a very little time.
22 Can I invite you to have on the screen FS7, 2232,
23 because that is the starting point of the very detailed,
24 very fair and very helpful submissions that the Lawton
25 team have made about that particular shooting. There,
1 and my learned friend Mr Glasgow repeated this this
2 morning, there were said to be at least two, possibly
3 more soldiers, who fired across. One of them was
4 Soldier F, who is said to have fired two shots across,
5 one of which killed Mr Barney McGuigan, towards the very
6 end of the shooting that took place that day.
7 As far as the other soldiers in Glenfada Park firing
8 into section 5 are concerned, obviously I invite the
9 Tribunal's close attention to what is said in that
10 chapter, 10C. I am not going to go through it in detail
11 because it is there in writing for you and it would
12 serve no purpose, but may I just make a number of points
13 and underline them.
14 Denis Bradley's evidence is dealt with during the
15 course of this chapter and the one point that I make
16 that is of great importance in relation to him, because
17 it is clear and, in my submission, my learned friend
18 Mr Glasgow was absolutely right in saying that the
19 soldier that Mr Bradley described as firing was not
20 Soldier F, or does not appear to have been Soldier F
21 because his account of what happened does not coincide
22 with other evidence, including Soldier F's own evidence
23 relating to what happened.
24 So I accept that he may have been, and indeed almost
25 certainly, was referring to a soldier other than
1 Soldier F.
2 Sir, you will see at FS7.2247 a very small
3 paragraph, a line and a half, it is 10C.37:
4 "The only characteristic of this soldier that
5 Mr Bradley was able to describe was that his face was
6 blackened."
7 There is a reference further down the page, three
8 lines from a bottom, and a mention of Mr George Irwin.
9 He has not given evidence, indeed he has not even
10 provided a statement and, over the page, FS7.2248, "the
11 only record of an account given by him is a NICRA
12 statement, which is undated," and he describes a tall
13 soldier firing at least three shots from the hip.
14 Because he has made no statement since, because he has
15 not given evidence and we have been unable to assess his
16 worth as an eyewitness, we cannot really assess his
17 evidence beyond seeing what he said at that time.
18 I emphasise, sir, two points. We do not know how
19 many soldiers were at the gable end and taking part in
20 the arresting or detention of the civilians who were
21 there. We do not know, of course, not knowing their
22 identity, we do not know their height.
23 Soldier H has never said that he took part in
24 detaining civilians at the gable end and, in our
25 submission, there is no reason why he should have
1 concealed that fact which in no way rebounds to his
2 discredit and, I hope I am right in saying that nobody
3 has identified him as one of the soldiers in that
4 procession that passes between Columbcille Court and
5 Kells Walk and emerges to the north of Kells Walk,
6 coming round the corner towards the camera; he does not
7 appear in that.
8 So, although he was undoubtedly in
9 Glenfada Park North, our submission is that there is no
10 evidence that he was at the mouth of the southeast gable
11 end, let alone that he fired any shots.
12 The only other mention that I ought to deal with is
13 at 7.2249, where there is an anonymous witness, RM2, who
14 described seeing a tall soldier, but this is in contrast
15 to the other evidence because some lines down, in the
16 numbered paragraph 28, which is indented, the witness
17 says:
18 " I think he had come south down Rossville Street
19 because, at the end I had a clear view of the entrance
20 way to Glenfada Park North, and my impression was that
21 he had not come from there."
22 Further down he says "He was tall and looked
23 confident. He had a red beret on ..."
24 We know at the time that the paratroopers who went
25 into Glenfada Park were helmeted and, in addition,
1 Soldier H has always said that he was wearing
2 a respirator.
3 "He had a white face with no camouflage on."
4 Again, there is evidence that the soldiers from the
5 Anti-Tank Platoon were blacked up.
6 Sir, I hope that is an adequate review of the
7 evidence, and I am very grateful to Mr Glasgow and his
8 team for providing that analysis.
9 My submission, put very bluntly, is that there is no
10 evidence which is sufficient for the Tribunal to do more
11 than speculate that the tall soldier might have been H.
12 He was in Glenfada Park; he is tall. As I say, we do
13 not know which others were there. We do not know their
14 heights and, in our submission, it would be wholly
15 wrong -- we say this with great respect -- to attribute
16 the shots fired at that juncture to Soldier H.
17 Sir, as far as the alternative location for the 19
18 shots is concerned, we have done our best, in chapter 5
19 of our final submissions, to indicate an alternative.
20 We rely on the evidence of Soldier 444, Inquiry 444, an
21 outstanding soldier, in this regard, perhaps among
22 others: that he was a corporal at the time and
23 subsequently became a lieutenant colonel. He was very
24 careful in his evidence. He was most apologetic in case
25 he had overstated his allegation that the soldier
1 concerned was H and he said that he attributed that, he
2 did not know H and attributed it to NAAFI gossip.
3 But his description of someone firing in an
4 indisciplined way on the wasteground towards the car
5 park of the Rossville Flats, first of all we are not
6 saying that it accounts for 19 shots necessarily, but it
7 is possible that it accounts for some of the shots that
8 Soldier H fired.
9 When he gave his evidence, he was questioned by my
10 learned friend Mr Barry MacDonald who asked him, very
11 sensibly and naturally: well, you were there at the time
12 and you saw this soldier firing, we have heard evidence
13 that lots of soldiers were firing towards the car park,
14 did you see any of that, and he said: well I do not
15 remember seeing any of that; and, sir, you intervened at
16 that stage and pointed out that of course he may have
17 been speaking at a time when the other firing had either
18 ceased altogether, or at any rate part of it was over,
19 and it may have made no impression on him.
20 So we pray in aid, in the way that we have done in
21 our written submission, the possibility that the soldier
22 that 444 was talking about was indeed Soldier H and that
23 some of those shots were fired upwards, he was not sure
24 at what height, but certainly not levelly, certainly
25 towards the upper part, and he thought it was blocks 2
1 to 3. That is a possibility that may account for the
2 shots that was fired.
3 Sir, as far as the only other matters are concerned
4 which I seek to deal with, they are question 15 and
5 question 17. I can deal with them both, if I may, very
6 shortly indeed.
7 As far as 12 Garvan Place is concerned and the shots
8 that were fired towards the flat where the Grimaldis
9 were and put six holes in the window, Mr Clarke -- again
10 very properly and thoroughly -- put that matter to
11 Soldier H. He said he had not seen the photograph
12 before and he simply could not say whether or not the
13 shots could have been fired by him.
14 My learned friend Mr Glasgow has mentioned a number
15 of contenders, soldiers who possibly are responsible for
16 those shots. As far as I recall they were C and D and F
17 and G. It is, of course, possible that they were
18 responsible for the shots. It is also possible, we say,
19 but it is no more than really a bare possibility, that
20 Soldier H was responsible for them, or some of them,
21 himself, we do not know.
22 Sir, finally, Glenfada Park North, question 17.
23 I adopt what my learned friends have said about that,
24 the evidence that there was stone-throwing at the time
25 is very tenuous indeed, if it can be said really to
1 exist at all, and I do not pray it in aid as far as
2 Soldier H is concerned.
3 Sir, those are the answers that we seek to give to
4 your questions. Unless there are any other matters that
5 I can help you with, those are the submissions that we
6 seek to make to you on behalf of the clients we
7 represent.
8 LORD SAVILLE: Thank you.
9 Submissions by MS HORWOOD-SMART
10 MS HORWOOD-SMART: Sir, may I say for the record that, in
11 addition to the individual soldiers that we have
12 represented for some time, we also represent the late
13 Lord Carver, and have made submissions on his behalf,
14 which the parties all received at the beginning of this
15 week.
16 Sir, we have made submissions on behalf of those
17 individual soldiers, and in particular, of course, on
18 behalf of Soldier L. If there are any areas that we can
19 help the Tribunal with any further, of course we will
20 try to do so.
21 LORD SAVILLE: Speaking for myself, I do not think there
22 are, in the light of the submissions that you have
23 already made. That is not to say that we accept those
24 submissions, of course. They appear to have put the
25 case you wish to put with clarity and we are grateful
1 for them.
2 That, I think, in fact, exhausts the business we can
3 do this week. We will adjourn now. We will resume at
4 9.30 on Monday morning, when we expect Lord Gifford to
5 be available.
6 (1.05 pm)
7 (Proceedings adjourned until 9.30 am on Monday,
8 14th June 2004)
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1 INDEX
2 PAGE
3 Submissions by MR GLASGOW .................... 1
4 Submissions by MR BRADLY ..................... 37
5 Submissions by MR ELIAS ...................... 45
6 Submissions by SIR ALLAN GREEN ............... 74
7 Submissions by MS HORWOOD-SMART .............. 88
8
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12
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15
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