1 Monday, 22nd November 2004
2 (9.35 am)
3 Closing submissions by MR CLARKE
4 MR CLARKE: When I began my opening in this hall on
5 27th March 2000 I said that the task of the Tribunal was
6 to try to discover, so far as it is now humanly possible
7 so to do, the truth of what occurred on Bloody Sunday,
8 however complex, painful or unacceptable to whomsoever
9 that truth might be.
10 The reach and extent of that exercise has been very
11 great. The Tribunal has sat, since March 2000 for 432
12 days, both here and in London. The Tribunal has heard
13 oral evidence over 366 days; 921 witnesses have given
14 evidence orally; the evidence of another 1,555 witnesses
15 has been read. The oral evidence has been heard and in
16 all but some 42 cases, seen by the public. Almost all,
17 but not quite all of those witnesses have given evidence
18 without the need to issue a subpoena. In only, I think,
19 one case has a witness had to be asked to leave the
20 proceedings because of his behaviour.
21 The witnesses called to give oral evidence have come
22 from many quarters. 506 of them were civilians, seven
23 were priests, 49 were representatives of the media,
24 including photographers, 245 were military witnesses,
25 nine were experts and forensic scientists, 39 were
1 politicians, civil servants or intelligence officers, 33
2 came from the RUC, 33 were former paramilitaries.
3 The Tribunal has amassed a large archive of
4 documents, greater, I believe, than that possessed by
5 any other source or combination of sources in relation
6 to the events of the day.
7 The Tribunal has examined so large a quantity of
8 material and heard or received evidence from so many
9 witnesses for one sole reason, that it has judged it
10 necessary to do so in order to fulfil the duty which
11 Parliament entrusted to it, of trying to discover the
12 truth of what happened on that day.
13 What happened on that day was, and has remained,
14 controversial in almost every respect. What led up to
15 the day, almost equally so. The critical events were
16 witnessed by a very large body of people, both civil and
17 military. Many gave contemporaneous accounts, others
18 did not. Over the years thereafter a sizeable quantity
19 of accounts has been given by civilians and soldiers
20 alike, sometimes casting new light on what happened,
21 sometimes casting doubt as to the accuracy of previous
22 accounts.
23 The fulfillment of the Tribunal's duty of due
24 inquiry required the proper consideration of whatever
25 might reasonably be regarded as advancing the search for
1 the truth. Counsel for the Inquiry have just delivered
2 their final submissions. These themselves extend to ten
3 volumes in addition to the 32 volumes submitted by the
4 interested parties.
5 As I indicated would be the case in June, these do
6 not purport to cover every piece of evidence, every
7 issue or every submission made by the interested
8 parties. They are intended as an aid to the Tribunal,
9 as a summary of or a reference to relevant evidence and
10 the rival considerations that may arise in respect of
11 core issues. They supplement the extremely extensive
12 submissions of the interested parties.
13 It would not be feasible or sensible to deliver
14 a form of oral executive summary of the totality of so
15 large a body of material. What I propose to do is to
16 give some indication of some of the salient parts of the
17 content of this material which all concerned will be
18 able to read for themselves, since they are now public
19 documents. I propose to do so without extensive
20 reference to the underlying documentation, both in the
21 interests of time and because the Tribunal and the
22 interested parties will be familiar with many of them.
23 It is as well, before I embark upon that exercise,
24 to stand back for a moment from the morass of material
25 and the myriad of issues that are before the Tribunal,
1 in order to focus on the central question which brought
2 the Inquiry into being, which is: why and how did 13
3 people come to be killed and 14 to be wounded within
4 something like ten minutes on 30th January 1972 in this
5 city? That issue may no doubt be divided into two
6 sub-issues so far as the immediate circumstances
7 relating to each of those shot is concerned, namely, who
8 shot him or her and, secondly, was there any
9 justification for doing so.
10 The latter question can be broken down into
11 essentially five further questions. Who was the soldier
12 aiming at? Did he hit the person he intended to hit or
13 someone else? Was the person he intended to hit,
14 whether or not he in fact did so, doing anything which
15 justified him being shot? If not, did the firer
16 genuinely believe that he was? And, lastly, was that
17 belief based on any reasonable grounds?
18 In posing the questions in this way I have been
19 assuming that all 27 were shot by soldiers. I am aware
20 that in the case of Peggy Deery it is suggested that she
21 may not have been shot by a soldier and that it is
22 suggested Patsy McDaid was the victim of
23 a malfunctioning nail bomb. With the exception of those
24 cases it is not, as I understand it, and the Tribunal
25 may think could not seriously be suggested -- I shall
1 come to the position of those two later -- that those
2 who died and were wounded were not shot by soldiers, and
3 also with the exception of Alexander Nash.
4 If that assumption is correct, it has to be said
5 that even after many days of evidence the answer to even
6 the first question, who shot them, is not, on the
7 soldiers' evidence, in any way clear. With the
8 exception of Damien Donaghy and John Johnston, who would
9 appear to have been shot by one or other of soldiers A
10 and B, of Michael Kelly who appears to have been shot by
11 Soldier F, of Gerard McKinney who was shot by Soldier G
12 and Gerard Donaghy was shot by Soldier G and
13 Kevin McElhinney, who appears to have been shot by one
14 or other of K, L or M, there is no clear indication from
15 the soldiers as to who shot whom.
16 It is material to consider what, if anything, is the
17 significance of what I have just said. One view that
18 the Tribunal might take is that this is something that
19 is not surprising if, as they say to be the case,
20 soldiers came under fire from unexpected quarters and
21 had swiftly to retaliate. In such a situation it may
22 not be possible to link a particular soldier with an
23 individual victim. Another view is that a party's
24 belief that the soldiers appear on one view to have hit
25 not one of the gunmen or nail bombers at whom they
1 fired, or, if they did, to have shot 27 others in
2 addition.
3 In Sector 2 it appears that no-one can explain who
4 shot Jack Duddy in the middle of the car park or
5 Michael Bridge by his own, in a practically deserted car
6 park thereafter and Michael Bradley in front of the low
7 wall.
8 In Sector 3 no-one can explain who it was who shot
9 three people dead at the barricade.
10 In Sector 4 no-one can explain the deaths of
11 James Wray and William McKinney and the wounding of the
12 others, in terms that appear to bear any relationship to
13 who they were doing or the people at whom the Army say
14 they shot and that no-one chose to explain the deaths of
15 Gerard Donaghy and Gerard McKinney.
16 In Sector 5 no-one can explain all four deaths and
17 woundings.
18 These considerations may have a cumulative effect.
19 The Tribunal may attach some significance to the fact
20 that so much is unexplained, particularly in sectors 3,
21 4 and 5 into which the Anti-Tank Platoon fired. It
22 might conclude, taking that fact with all the other
23 evidence, that so much is unexplained because no
24 justifiable explanation could be given. On the other
25 hand it might take the view that uncomfortable facts
1 have been airbrushed out of history and that the
2 situation the soldiers faced was radically different to
3 that of which the civilian evidence speaks.
4 I now turn to consider in more detail the issues
5 that arise in respect of the various sectors. I start
6 with the events before the day occurred. The Tribunal
7 will find in the first volume of our submissions,
8 entitled "Events Before The Day" a chronological summary
9 of events since July 1971 in Northern Ireland so far as
10 they relate to events in Derry, and in Derry itself. In
11 part this is an update of the opening in which that
12 exercise was performed on the material then available.
13 The submission carries that exercise forward with
14 references to the oral evidence that the Tribunal has
15 heard, the additional documents that have come in, and
16 the submissions of the parties. I propose to pick up
17 some of the points that are there referred to.
18 Sir Louis Blom-Cooper, Lord Gifford and others have
19 submitted that the ban on marches itself was unlawful,
20 upon the ground that Mr Faulkner's dominant reason for
21 introducing it was to further the collateral purpose of
22 fulfilling the conditions the British Government had
23 laid down for accepting internment, as well as being
24 a violation of Articles 10 and 11 of the Human Rights
25 Convention.
1 I mention this as an example of an issue, which
2 although interesting and not unimportant is not of
3 immediate impact in relation to what happened on the
4 day. The march was, on its face, illegal. No-one had
5 taken steps by way of what would now be judicial review
6 to have the order banning marches quashed. Whether or
7 not it would have been quashed had all the facts been
8 known and an application made may be an open question.
9 Certainly it would have been resolved on evidence
10 different to that which the Tribunal has heard, which
11 would presumably have included evidence from Mr Faulkner
12 himself, that might have been to the effect that in his
13 view the conditions for the making of an order were met
14 and that so far as his discretion was concerned, he was
15 entitled to take into account that a refusal to make an
16 order would make it impossible for him to introduce
17 internment which, for lawful reasons, he judged
18 necessary. In any event, no such order would have been
19 made without hearing representations on his behalf. In
20 those circumstances, the Tribunal might wish to exercise
21 a degree of caution in expressing a conclusion on the
22 point, unless it takes the view that the question is not
23 an open one.
24 The Tribunal will recall from the summer 1971
25 onwards, the prospect existed, increasingly remote as
1 time went by, of the Home Secretary's talks, that is to
2 say talks once order was restored involving
3 representatives of both sides of the Northern Ireland
4 Parliament, to see whether it was possible to devise
5 further means of giving representatives of the minority
6 an active and prominent role in the process of
7 Government and the administration of the province.
8 Those prospects became bleak, given the refusal of
9 the SDLP and nationalist parties to participate in those
10 discussions until internment was brought to an end, and
11 later that the Stormont system should itself end;
12 secondly Mr Faulkner's refusal to contemplate the
13 inclusion in his Government of anyone holding
14 a republican viewpoint over the constitution of
15 Northern Ireland.
16 The history of events in Derry thereafter is
17 recounted in our submissions and the submissions of
18 several of the interested parties, beginning with
19 Operation Huntsman on 18th August, to remove barriers.
20 The operation, in the course of which John Hume and
21 others were arrested after being ordered to disperse by
22 an Army officer, giving rise to the case of Regina V The
23 Londonderry Justices and in turn the Northern Ireland
24 Act, 1972.
25 Whether or not, had that case gone to the Court of
1 Appeal and possibly the House of Lords, the ruling of
2 Lord Chief Justice Lowry would have been overturned is
3 again an open question. Had it been overturned, the law
4 in force on 30th January 1972 would have been whatever
5 the relevant appellant court held it to be. That
6 decision would have been for that court to take.
7 Despite the fact that all members of this Tribunal have
8 held or hold high judicial office, the Tribunal is
9 obviously not an appellant court and it may no doubt
10 wish to consider the extent to which it is necessary or
11 desirable for it to pronounce on what might be viewed,
12 in the events which have happened, as an academic
13 question. However, in the light of the position in the
14 Londonderry Justices, as it stands, the arrests on
15 30th January 1972 would, but for the retrospective
16 operation of the Northern Ireland Act, have been
17 unlawful.
18 20th August to 2nd December 1971 marked the
19 containment phase when the military profile was lowered
20 in Derry. During the autumn the security situation
21 deteriorated and on 7th October, when GEN 47 met in
22 London, Mr Heath expressed the view that the first
23 priority should be the defeat of the gunman, using
24 military means and that in achieving this we should have
25 to accept whatever political penalties were available.
1 That meeting signalled a shift in policy priorities --
2 a tougher approach towards the gunman -- in part
3 influenced by a desire to keep Mr Faulkner in power and
4 to avoid direct rule and the need for that purpose to
5 satisfy him and the Protestant community that the
6 United Kingdom Government was not being too feeble with
7 gunmen.
8 The Tribunal will have noted from then onwards that
9 a number of themes run through the documents. One is
10 that the defeat of the gunman is the first priority.
11 Another is that a purely military situation was unlikely
12 to succeed. A third was that if there was progress in
13 the security front on the defeat of the gunmen, there
14 could, would or might be a window of opportunity for a
15 political initiative at a time when the gunmen were
16 demoralised and the Protestant community satisfied that
17 security was being brought under control, but before the
18 success of that exercise brought intransigence towards
19 reform.
20 So by the end of the year a possible political
21 initiative was in the air. Over the year end marches
22 took place on Christmas Day and 2nd January. On
23 6th January, the JSC agreed in principle with proposals
24 from the GOC for taking a more positive line in future
25 to prevent unauthorised marches from taking place and
1 the GOC undertook to discuss the problems of the Strand
2 Traders with them on the spot in Derry.
3 As we know, it was in the event General Ford who
4 went to the city, after which he prepared the memorandum
5 that the Tribunal has considered at considerable length.
6 Might we have at this stage on the screen G48.300.
7 This memorandum we have seen many times. There are
8 of a number of issues that arise on it, of which most
9 important are what exactly were the conclusions to which
10 General Ford was coming and to what extent did the
11 thoughts in this memorandum get taken forward.
12 The relevant paragraphs begin at paragraph 6. The
13 Tribunal will judge for itself what it regards the words
14 of the memorandum as meaning and whether what was being
15 propounded as a possibility was a "shoot to kill"
16 policy. Since these paragraphs, from paragraphs 6 and
17 7, proceed on the basis that the contemplated policy
18 involved shooting selected ringleaders and recognised
19 both the devastating effects of a~7.62 millimetre bullet
20 and that to use it for that purpose risked killing more
21 than the person aimed at and that on that account less
22 lethal ammunition should be issued when ringleaders were
23 engaged and also accepts the possibility that .22 rounds
24 may be lethal. It seems difficult to escape the
25 conclusion that what was contemplated was that shots
1 should be fired at ringleaders which would at the lowest
2 expose them to a high risk of death and probably kill at
3 least some of them. This is underscored by the fact
4 that soldiers are trained to shoot at the body mass,
5 they are not taught to shoot to wound.
6 The relevant paragraphs are, however, expressed
7 tentatively in the terms of "I am coming to the
8 conclusion ..." and "if this course is implemented ..."
9 They are expressed tentatively and the only
10 practical step reported was the despatch to 8th Brigade
11 of 30 adapted risks which were in Northern Ireland as
12 a result of proposals antedating Bloody Sunday for
13 providing troops with less devastating weapons.
14 INQ1900, who was the deputy assistant adjutant and
15 quartermaster general, believed that the rifles had been
16 retained at the ordinance pool in Lisburn, that some
17 were sent to 8th Brigade for zeroing and he knew, he
18 told the Tribunal, that none were ever used
19 operationally.
20 As to whether or not the ideas were taken forward,
21 there was some evidence from Colin Wallace of the
22 suggestion shooting ringleaders being a matter of
23 discussion, but Colonel Tugwell for one told the
24 Tribunal that he was not aware of the issue going the
25 rounds. The memorandum must presumably have been seen
1 by and discussed with General Tuzo, although in 1998 he
2 told General Ford that he had no recollection of it. It
3 is possible that the memorandum incorporates "the
4 certain measures under discussion," of which Mr William
5 Stout, the Government securities advisor, is reported to
6 have supplied details to the Northern Ireland Cabinet on
7 11th January, but these may have been the measures that
8 were set out in an Army paper at 5th January, on dealing
9 with marches.
10 There is no evidence that senior officers in
11 Northern Ireland other than generals Tuzo and Ford saw
12 the memorandum and much evidence they did not, including
13 but not limited to, that of Messrs Kitson, Steele,
14 McClellan, Jackson and the commanding officers of the
15 Derry units.
16 Nor is there evidence that the memorandum reached
17 the Ministry of Defence. Indeed, General Ford's note,
18 written after Bloody Sunday, the reference of which is,
19 but we need turn it up, B1208.069, referred to his
20 having prepared a paper on the problem of containing the
21 situation on Bloody Sunday without shooting into the
22 crowd in the week preceding Bloody Sunday, with a view
23 to putting it to the MoD in the week of that note.
24 The MoD copy of the memorandum presently on the
25 screen came from the Widgery papers. Nor is there
1 evidence that the memorandum reached any of the relevant
2 politicians or other Whitehall departments, nor is there
3 any evidence that the ideas inside it played any part in
4 the planning of Operation Forecast.
5 By the time of this memorandum, the Army was
6 beginning to make preparations for dealing with the
7 march, then expected to be on 16th. On Monday,
8 10th January, the Brigade Major produced a paper,
9 G49.302 on board, discussing how to deal with that
10 march, where the number of marchers was expected to be
11 much lower than was the case when it went ahead on -- on
12 30th January.
13 The Tribunal will recall that these plans
14 contemplated that the RUC would take the leading role
15 unless a threat from gunmen required the Army to be in
16 the front-line, that the troops who were to be involved
17 were to come with 8th Brigade, with two companies of the
18 province reserve to be held at Drumahoe and that it did
19 not make provision for a major arrest operation, as
20 opposed to the arrest of ringleaders.
21 The Madden & Finucane team, if I may call them that,
22 make a number of contentions in respect of General Ford,
23 including that he decided to stop the march, not for the
24 security of the city and its population, nor in order to
25 enforce law and order, but so as, and I quote:
1 "To demonstrate that the Army was able to police the
2 ban on marches and that the Army was able to police
3 Derry regardless of the consequences."
4 Secondly, they submit the primary motivation for the
5 increased prominence of the military was to give HQ
6 Northern Ireland effective operational control over the
7 security operation so as to break the stalemate.
8 The Tribunal will need to take the view as to
9 whether this characterisation, which implies an
10 over-arching concern to demonstrate the capability of
11 the Army and to vest control in HQNI is apposite.
12 The first meeting of GEN 47 in the new year was on
13 11th January 1972. May we have on the screen G49B.308.
14 This is the meeting for which the Cabinet Secretary's
15 brief included a passage that appears at paragraph 9.
16 The reference seems to be defective. The passage is
17 well-known, it includes the phrase:
18 "... but if we are putting our money on
19 Mr Faulkner's survival, we cannot afford to expose him
20 indefinitely to the accusation that he is using kid
21 gloves to deal with the provocation and intimidation."
22 A number of interested parties have taken this as an
23 indication that a process of taking off the kid gloves
24 was beginning at this stage. The Tribunal may think
25 that this passage, whilst a useful source of metaphor,
1 does not in fact indicate that some sea change, to use
2 another metaphor, has already taken place. The Tribunal
3 may think it important to look at the decisions made at
4 the meeting. Could we try G50.308:
5 "The notes of the discussion record that the
6 continuing attrition of the Provisional wing of the IRA
7 might provide an opportunity for the Official wing to
8 present their less violent policy as the more
9 productive."
10 It then goes on to say:
11 "The relatively low number of violent incidents
12 since Christmas gave rise to the question whether the
13 present level of violence in Belfast was as low as could
14 be reasonably expected there, short of a deliberate
15 decision by the IRA to reduce drastically or to call off
16 its campaign. If this was so, it gave additional point
17 to the desirability of a political initiative before on
18 the one hand the Official IRA increased their influence
19 among the Catholic population, or on the other hand
20 Protestant opinion hardened as a consequence of the
21 march mounted on 2nd January."
22 If we turn to the next page, in summing up the
23 discussion the Prime Minister is recorded as saying that
24 the:
25 "... relative quietness of the security situation in
1 Belfast underlined the importance of the search for
2 a political initiative which the meeting would discuss
3 as the next item on its agenda. A military operation to
4 reimpose law and order in Londonderry might in time
5 become inevitable but should not be undertaken while
6 there still remained some prospect of a successful
7 political initiative."
8 The Tribunal may think the importance of this minute
9 lies in the fact that in January GEN 47 was
10 contemplating a political initiative before the IRA
11 increased their influence or Protestant opinion
12 hardened.
13 The Tribunal may think in those circumstances it
14 would have been particularly inadvisable to adopt
15 a course of action calculated to inflame Catholic
16 sensibilities or, to put it at the lowest, that if
17 GEN 47, with a view to preventing Protestant opinion
18 from hardening, was contemplating some action which
19 might have that effect, it would have carefully
20 considered the adverse, indeed potentially calamitous
21 consequences of doing so.
22 The recommendation to renew the ban was approved by
23 the Northern Ireland Cabinet on 18th January. On the
24 same day the Home Secretary circulated a memorandum.
25 Can we try G59C363.8, headed "Northern Ireland Policy
1 for 1972," as had been presaged at the GEN 47 meeting on
2 11th January. In it he declared that it seemed to him
3 there were three alternatives and only three:
4 "One: to continue on present lines; two:to seek
5 other Catholic representatives with whom it would be
6 possible to negotiate a settlement; three:to devise
7 a solution of our own and ensure that it is carried out
8 by agreement, if possible, but if necessary by
9 directive.
10 May we go to page 363.11. He rejected the first two
11 of those. As to the third, he proposed a solution with
12 three elements. Firstly: reassurance about the border.
13 Secondly: a change of composition in Government and,
14 thirdly: a redefinition of its powers, including the
15 transfer of responsibility for law and order to the
16 United Kingdom Government and recommended trying to
17 proceed by agreement, but if that was impossible,
18 establishing an interim commission to govern in the
19 meantime.
20 On 19th January, G59.361, a policy instruction was
21 issued to all brigades -- 362 please -- concerning the
22 attitude to be taken by the RUC and the Army in respect
23 of breaches on the ban. The instruction, which stated
24 that it was essential that the prohibition be strictly
25 enforced, contemplated, amongst other things, warnings
1 by the RUC to those involved and holding processions of
2 the prohibition and the penalties for holding them,
3 a detailed joint police/Army plan for dealing with
4 illegal processions, a demand to disperse forthwith to
5 be made when the parade formed up, police cordon to
6 block the path of the parade complete, powers of arrest
7 under the Public Order Act to be exercised if
8 practicable by the RUC, and arrests by the Army to be
9 made under Regulation 11 of the Special Powers Act.
10 It is for the Tribunal to say whether that
11 represented, as Lord Gifford submits "a united and
12 ruthless policy to enforce the ban and the taking off of
13 the kid gloves." The Tribunal may think, in the light
14 of the policy decision that had been now taken by the
15 Northern Ireland Government, that marches should
16 continue to be banned and that the ban should continue
17 to be enforced. It was in practical terms scarcely
18 a realistic option for the Army to suggest that the
19 march on 30th January should run its full course to the
20 Guildhall.
21 Saturday 22nd January witnessed the march to
22 Magilligan. The Tribunal is not required to determine
23 the rights and wrongs of Magilligan and it is a matter
24 for it to what extent it wishes to make any observations
25 or findings on what happened and whether it thinks it
1 has sufficient material so to do. It may think at the
2 lowest the events form an important part of the
3 background, not least because what people thought had or
4 appeared to have happened at Magilligan on 22nd January
5 may have influenced their action in respect of the
6 following Sunday. Madden & Finucane submit that what
7 happened on the day demonstrated the brutality of 1 Para
8 and that either despite evidence of that brutality or
9 because of it, they were selected as the brigade arrest
10 force.
11 In the nature of things the Tribunal has not heard
12 from all or even a majority of those who would have
13 relevant evidence to give about the events of the day.
14 That said, there is a considerable body of evidence, not
15 limited to civilians, of soldiers using excessive or
16 reckless force, references to which are included in our
17 submission.
18 On Sunday, 23rd January, Mr Lynch visited Sir Edward
19 Heath and Mr Robert Armstrong at the Residence of the
20 United Kingdom ambassador to the European community
21 sir Edward being there to sign the treaty of accession,
22 during the course of which Mr Lynch expressed the view
23 that now might be appropriate for some political
24 initiative.
25 As the Tribunal knows, Monday 24th was the day on
1 which a number of important events happened. Firstly,
2 Chief Superintendent Lagan and his deputy,
3 Superintendent McCullagh, had their discussion with
4 Brigadier McClellan as to how to handle the march. What
5 Mr Lagan's views were is not in dispute. He will be the
6 wisest course would be to allow the marchers to continue
7 to the Guildhall Square, to identify them by taking
8 photographs and to initiate prosecutions later.
9 The disputed issue is whether Brigadier McClellan
10 either agreed or appeared to agree with this view.
11 The relevant evidence is set out in our submissions
12 and in the submissions of others. In endeavouring to
13 resolve this conflict the Tribunal will no doubt take
14 into account the evidence given to Lord Widgery in 1972
15 and in Brigadier McClellan's letter 15th March 1972,
16 written after Mr Lagan had given evidence which itself
17 was after Brigadier McClellan had done so. Secondly,
18 the written evidence to this Inquiry of
19 Brigadier McClellan and Chief Superintendent Lagan and
20 the Tribunal's assessment of Brigadier McClellan's oral
21 testimony, including his statement that Mr Lagan's
22 proposal for identifying rioters and prosecuting them
23 later was pie in the sky and that his starting position
24 was the fact that the march would have to be stopped.
25 Thirdly, the fact that the ban had only recently been
1 extended, that the Commander of Land Forces had directed
2 that it be strictly enforced and that Brigadier
3 McClellan's outline plan for 16th January had provided
4 for the stopping of the march.
5 Fourthly, the analysis made in paragraphs 11.2, 14
6 and following of Madden & Finucane's submissions in
7 support of their contention that Brigadier McClellan
8 lied to the Inquiry in several respects. Fifthly, the
9 possibility that Chief Superintendent Lagan and
10 Superintendent McCullagh mistook on absence of express
11 disagreement for agreement on Brigadier McClellan's part
12 or that Brigadier McClellan's recollection of expressing
13 disagreement or what amounted to disagreement or even of
14 holding strong opposing views on 24th January was
15 faulty. Lastly, the fact that the signal sent that
16 evening contained no indication of dissent from, nor
17 indeed support of, Mr Lagan's proposal.
18 On 25th January, according to the written evidence
19 given, Observer B visited Derry and, according to him,
20 saw a group of about 40 people whom he took to be what
21 he described as IRA auxiliaries drilling in the entrance
22 to Glenfada Park, march across Rossville Street, enter
23 the Rossville Flats, split up and spread along the three
24 landings of Block 2. At first, so he says, they stood
25 on the inside edge of the balconies close to and with
1 their backs to the door of the flat and on a command
2 moved forward to the outside edge, keeping just to the
3 left of the columns so Observer B thought they would be
4 obscured from sight from anyone looking at the walls.
5 According to his evidence he telephoned IO1, an
6 intelligence officer now deceased, that evening, to
7 describe what he had seen, saying "I think you have got
8 a problem on Sunday".
9 He also said that on Thursday the 27th he saw the
10 men drilling again and was told by someone that they had
11 been at it every day this week. The Tribunal has seen
12 no record of these reports by Observer B to IO1. There
13 is a record. It is at KM10.5, of a meeting between the
14 two of them on Thursday, 27th when Observer B was paid
15 10 expenses.
16 Observer B died before his evidence could be heard
17 and the Tribunal has thus been deprived of any ability
18 to assess the credibility of his testimony by reference
19 to his demeanour and his response to questioning. M&F
20 have submitted that the account that he gave of what
21 happened before the day is inherently absurd, involving
22 as it does drilling in full view of the observers at the
23 Embassy Ballroom or on the walls and that his
24 credibility is seriously impaired by the fact at
25 paragraph 17 of his statement to the Tribunal he claims
1 to have spoken to two men on 31st January who said they
2 had seen men run from the Rossville Flats and throw two
3 Thompsons, a rifle and a pistol into a Ford Cortina at
4 Free Derry Corner and drive off, which information he
5 reported to IO1 soon afterwards. There is no record of
6 such a report to IO1. There are, however, a number of
7 records of Observer B's information being that weapons
8 were being distributed behind the flats from a car, not
9 put into one.
10 In a telephone conversation of the same evening, the
11 25th, General Ford ordered Brigadier McClellan to submit
12 to him by 0830 by Wednesday, 26th, a plan to stop the
13 march before it reached the Guildhall. His note of the
14 telephone conversation shows that there was to be
15 a cordon, manned by soldiers, of the approaches to the
16 Bogside and the Creggan, the brigades were to be covered
17 by snipers with blocks of riot gunners to fire volleys.
18 General Ford told Brigadier McClellan that he would have
19 allotted to him as reinforcements, amongst others, the
20 1st battalion of the Parachute Regiment. It is not in
21 dispute that the decision there should be an arrest
22 operation in certain circumstances and to allot 1 Para
23 to Brigadier McClellan as an arrest force, was made by
24 General Ford.
25 By now, according to his evidence, he had come to
1 the conclusion that the time had come to step up the
2 pressure against the hooligans when occasion arose and
3 had reached the view that this march might provide such
4 an opportunity, since there would be a large number of
5 troops in the city who could hopefully take out a large
6 number of hooligans and thereby prevent the serious
7 damage that he thought might ensue that day if this was
8 not done.
9 The note indicates that General Ford saw 1 Para in
10 reserve in the city to "counterattack" ie to go round
11 the back to arrest 300 to 400 rioters. It is clear from
12 this, as his evidence confirms, that it was
13 General Ford's decision to use 1 Para as an arrest force
14 and that he was contemplating an arrest operation of
15 considerable magnitude. Over the rest of the week it
16 became, however, apparent that arresting that number was
17 likely to be an unachievable aim.
18 The Tribunal will recall that General Ford told
19 Lord Widgery and this Tribunal that his concern had been
20 that there might be emotional speeches which would
21 incite a proportion of the crowd, who or some of whom
22 would pour down to join the hooligans and carry on
23 rioting and put the safety of the commercial area at
24 risk, and that for that reason, if opportunity occurred,
25 he thought that advantage should be taken of the
1 concentration of troops to arrest as many hooligans as
2 possible.
3 An important question for the Tribunal is whether
4 this was an apprehension genuinely held and whether
5 General Ford was motivated by public order
6 considerations. I say that because Madden & Finucane
7 submit that General Ford believed that the parade was to
8 be stopped, and I quote:
9 "... simply because it was your view that it was
10 a challenge to the Security Forces, not because of any
11 public order considerations, not because of any genuine
12 policing considerations."
13 The reference is chapter 10.2.24.5. One possible
14 view is that the march was or could reasonably be
15 considered to be a number of things. Firstly, illegal;
16 secondly, itself a challenge to the law, thereby giving
17 rise to public order considerations as to whether it
18 should be stopped; thirdly, likely or liable to produce
19 then or thereafter actual disorder; and fourthly
20 a challenge to the Security Forces' ability to enforce
21 the law against public marches so recently extended.
22 Another possible view is that decision to stop the
23 parade was an unwise and in the event disastrous
24 application of a military mindset and that its emphasis
25 on the restoration and enforcement of law and order and
1 the securing of victory, as opposed to the more measured
2 and experienced police view that discretion was the
3 better part of valour, was misplaced.
4 As we know, the arrangements for dealing with the
5 march on 30th January differed markedly for those of the
6 march when it was to be held on the 16th. The reasons
7 for the change according to the evidence of General Ford
8 and others, were the much greater number of marchers now
9 contemplated, the large number of Security Force
10 personnel that would in consequence be needed, which
11 meant in reality the Army would have to manage the
12 march, the effect of stopping it predicted by Mr Lagan
13 and the greater prospect of hooligan violence arising
14 from the greater number of persons attending.
15 On the same day the Cabinet Secretary and Sir
16 Stewart Crawford, the Permanent Secretary to the Foreign
17 Office, called on Mr Lynch on his way back from Dublin
18 at the Irish Embassy, at which he indicated he might
19 launch his proposed initiative at his party conference
20 on 18th and 19th February.
21 On Wednesday, 26th January, General Ford received
22 Brigadier McClellan's outline plan. The evidence is not
23 entirely clear as to whether or not the plan then
24 included on arrest operation. Whether it did or not, an
25 arrest operation was undoubtedly under consideration at
1 the afternoon meeting at Headquarters Northern Ireland.
2 Meanwhile, D Ops committee had met. The minutes of
3 that meeting contain no reference to an arrest operation
4 and it was the recollection of the secretary of the
5 committee, INQ1869, there was no discussion or
6 consideration of that. General Ford had no recollection
7 of any such discussion either. At the meeting in the
8 afternoon General Ford approved the brigade plan which
9 was subsequently embodied in the brigade order.
10 There is set out in our submission, as in those of
11 others, citations in the evidence in 1972 and such as it
12 was in the recollection before this Inquiry of those who
13 gave evidence of what transpired at the meeting. The
14 Tribunal may think that a passage of particular
15 significance appears in General Ford's evidence to
16 Lord Widgery. May we have WT-Day10-0048, at letter E:
17 "Question: Was it envisaged on the 26th January
18 that the scoop-up operation would involve troops going
19 to the northern end of the Rossville flats?
20 "Answer: The northern end of the Rossville Flats
21 was not specifically mentioned, but the principle, if
22 you would like -- it was always intended that if an
23 opportunity occurred, the scoop-up operation would be
24 such that someone would be able to get behind the
25 hooligans. Otherwise there was no object in launching
1 it.
2 "Question: That is what my Lord would probably have
3 expected. You wanted to get behind them and then trap
4 them between the troops and the barricades?
5 "Answer: That is correct.
6 "Question: What I am asking you at the moment is in
7 order to do that it was envisaged that the troops might
8 advance some hundreds of yards into the Bogside?
9 "Answer: In fact, there was no discussion at that
10 meeting about the details of the scoop-up operation. It
11 was a matter for the Brigade Commander."
12 Over the page, I pick it up from the first answer.
13 "Answer: No, there was no discussion, except that
14 there was mention of the fact that there must be
15 a favourable opportunity to launch the [arrest
16 operation].
17 "Question: What in that context was regarded as
18 a favourable opportunity?
19 "Answer: Separation of the marchers from the
20 hooligans."
21 The particular features to which I have drawn
22 attention are firstly the recognition that if the
23 operation was to be a success, it would be necessary to
24 get behind the hooligans; secondly, the plan appears to
25 have been to trap the hooligans between the troops and
1 the barricades; thirdly, there was no discussion about
2 the details of the scoop-up operation, except there must
3 be a favourable opportunity to launch it, namely
4 separation of the marchers from the hooligans.
5 One of the important issues of the Tribunal is
6 whether, as Madden & Finucane submit "separation is
7 a complete fabrication, developed in the aftermath of
8 Bloody Sunday to justify the Army's action in launching
9 the arrest operation" or as their alternative submission
10 that separation was decided before the march, but as an
11 afterthought.
12 Another equally important issue is as to whether or
13 not the arrest operation needed and if so whether it
14 received, the degree of detailed planning that was
15 appropriate. The tenor of General Ford's evidence is
16 that detailed planning was not his responsibility and so
17 there was no detailed discussion at the meeting of 26th.
18 There seems to have been no detailed discussion at the
19 brigade co-ordinating conference thereafter, on the
20 footing that that was something for the commander of the
21 arrest force to do. Colonel Wilford's plans of the
22 battalion order group were themselves of a very general
23 character.
24 The Tribunal will want to consider whether in
25 circumstances where it was necessary to get behind the
1 hooligans if the operation was to have a realistic
2 prospect of success and where the maximum number of
3 hooligans previously caught had been something of the
4 order of 23 or 27, the degree of tactical planning was
5 commensurate to the task in hand and whether there was
6 any object in launching it without such planning.
7 On 27th January six important events occurred.
8 Firstly, the brigade order was produced. Secondly, the
9 Director of Intelligence's signal was sent relaying
10 information received the day before from Observer C at
11 the house of Observer D and passed to David on the
12 evening of 26th. Thirdly, the Joint Security Committee
13 met. Fourthly, GEN 47 met. Fifthly, Sir Edward Heath
14 and Mr Faulkner met.
15 So far as the signal is concerned, it does not seem
16 to have told 8th Brigade anything much more than they
17 had already forecast as a possibility themselves since
18 one of the threats specified in the order was of IRA
19 terrorist activity to take advantage of the event to
20 conduct shooting attacks against the security forces.
21 No-one appears to recollect the signal as having
22 a radical or it would seem any significant effect on the
23 Army's thinking and the possibility of the IRA using the
24 crowd for cover was already in mind. See the evidence
25 of INQ2241 and Lieutenant Colonel Jackson.
1 Neither the signal nor the intelligence contained in
2 it appear to have percolated very far.
3 Brigadier McClellan had no recollection of it and
4 thought that it did not tell the Army anything they did
5 not either know or anticipate. Colonel Wilford did not
6 recall ever having seen the signal or being informed of
7 the message contained in it, nor did Lieutenant Colonel
8 Steele.
9 Detective Chief Inspector Donnelly, who is recorded
10 as having read it, told the Tribunal he had no
11 recollection of having seen or read it. Mr Lagan
12 appears to have had the information contained in it
13 relayed to him, but did not place any particular weight
14 on it. David sent it, of course, but it is not clear to
15 what extent it percolated through the upper echelons of
16 the MoD.
17 That does not mean the signal was either fake or not
18 believed to be accurate. The post-30th January 1972
19 intelligence reports contain a number of references to
20 what appears to be the signal and there is one HQNI
21 document that appears to refer to it and which predates
22 30th January. May we have on the screen G83.526 which
23 is a page of the operational summary for the week ending
24 1700 on 28th January. That contains this paragraph:
25 "The march in Londonderry will present particular
1 problems and a greater than usual opportunity for
2 demonstrating the difficulties of preventing violations
3 of the ban in republican areas. Intelligence reports
4 indicate that the IRA are determined to produce a major
5 confrontation by one means or another during the march."
6 It is against that background that the Tribunal must
7 evaluate the submission made at paragraph 3.123 of their
8 submissions by Lord Gifford that the information in the
9 signal was "not believed to be accurate by those in the
10 Security Service who were responsible for creating or
11 relaying it" and their suspicion that it was:
12 "... created and/or forwarded to 8th Brigade to put
13 on record an IRA threat which could be used after the
14 event to assist in pinning responsibility on the IRA for
15 any civilian casualties that might occur."
16 The submission does not indicate who it is suggested
17 did not believe the signal to be accurate or to have
18 created or forwarded it for these malign purposes, but
19 the candidates are presumably David and Julian, to
20 neither of whom was this suggestion made.
21 It seems that with the exception of the information
22 from Observer B to which I have referred, the
23 information contained in this signal was the one piece
24 of specific intelligence received before Bloody Sunday
25 that indicated that the IRA would be likely to shoot at
1 the Army using the crowd as cover. In the events that
2 happened the report is shown not to have been reliable
3 as a prophecy insofar as it is suggested that the IRA
4 would use the crowd of marchers as cover to fire at the
5 troops. I do not propose at this juncture to go into
6 any detail orally in respect of the issues that arise in
7 relation to the order itself. There is, however, one
8 point that I desire to address. May we have on the
9 screen G95.570. In paragraph 9F, there are the
10 directions to 1 Para. They include the provision that
11 "the scoop-up operation is likely to be launched on two
12 axes. One directed towards hooligan activity in the
13 area of William Street/Little Diamond and one towards
14 the area of William Street/Little James Street.
15 "It is expected that the arrest operation will be
16 conducted on foot."
17 Lieutenant Colonel Steele as he then was, the
18 draftsman, said that he specified these two axes because
19 they were the two places where rioting was most common
20 because this "allowed the commanding officer of 1 Para
21 to make a detailed plan for the scoop-up operation,
22 planning how the arrest operation would take place was
23 his responsibility. He was able to make whatever plan
24 he deemed appropriate from the guidance set out in the
25 operation order."
1 At paragraph 5E30 of their submissions the Lawton
2 team make the point that the arrest operation was
3 envisaged as taking place in and around or with its
4 focus at Aggro Corner but no area of operation was laid
5 down, nor was it desirable, as it should have been, and
6 that the order did not set out any sort of boundary or
7 limit of exploitation. That and subsequent paragraphs
8 refer to what is characterised as:
9 "... a remarkable lack of co-operation between
10 questioners and witnesses."
11 On the issue of what could and could not be done by
12 way of planning and therefore orders as at 27th January,
13 characterised, so it is said, by an insistence on
14 reading in boundaries for the arrest operation that are
15 not there.
16 I do not propose now to go into the question of
17 whether there was quite such a lack of communication as
18 that of which the submissions speak and I doubt not the
19 Tribunal well understands the distinction between
20 a limitation specified in an order and an area where the
21 arrests are contemplated as likely to take place. What
22 I suggest may be important is for the Tribunal to reach
23 a view as to what was in mind as likely because that may
24 assist in determining what it was that the brigadier
25 thought he was ordering, whether there was a departure
1 from what he ordered or thought he had ordered or
2 whether what happened resulted from a want of adequate
3 planning as to what should happen if events turned
4 out -- if events thought as likely to happen did in fact
5 occur.
6 As to that, may we have on the screen B1315.0156.
7 At one point in his evidence, Lieutenant Colonel Steele
8 drew the circle which appears now on the screen, to
9 represent the area in which he envisaged that the arrest
10 operation would take place, although it could go further
11 south, depending on the exigencies of the situation.
12 It was his evidence that he envisaged a very swift
13 in and out operation. That is also consistent with what
14 Colonel Wilford appears to have had in mind -- could we
15 have B110.241 -- as appears from the rough diagram now
16 on the screen, that he gave to the Tribunal to
17 illustrate what he envisaged.
18 One of the most important issues for the Tribunal to
19 decide is what was discussed and planned by the members
20 of GEN 47 at their meeting on 27th January. The
21 essential question is whether or not the account given
22 in the minutes of the meeting is an accurate one. The
23 essence of the record is that no mention was made of
24 a specific operation involving 1 Para in arresting
25 a large number of hooligans, although some arrests were
1 contemplated if and when confrontation developed when
2 the march was stopped. Nor, according to the record,
3 was there mention of some special risk of violence,
4 other than incidents of confrontation between the Army
5 and the IRA -- other than if an instance of
6 confrontation between marchers and the Army, much less
7 of a gun battle between the Army and the IRA although
8 firing on the army was something that at the time could
9 never be ruled out completely. Thirdly, the minutes
10 recall that an important concern was how to handle the
11 public relations given that the march was going to go
12 some considerable way before it was stopped.
13 The evidence before the Tribunal of what transpired
14 at that meeting, in addition to the minutes, includes
15 the written and oral evidence of Sir Edward Heath and
16 Lord Carrington, the written evidence of Lord Balniel,
17 the written and oral evidence of the late Sir Arthur
18 Hockaday, who took the minutes, the written statement of
19 the late Lord Carver, the written and oral evidence of
20 Lord Armstrong, who was probably there in his capacity
21 as Sir Edward's Principal Private Secretary and the
22 notes of Sir Burke Trend, the Cabinet Secretary.
23 The Tribunal needs to evaluate the submission made
24 by the Gifford team, firstly, that those present
25 appreciated that the dispositions approved by them
1 endangered the lives of marchers.
2 Secondly, that at the lowest those who approved
3 those dispositions did not care whether the dispositions
4 would have lethal results.
5 Thirdly, that the meeting knew of the risk and
6 "deliberately approved the dispositions for what they
7 perceived to be a greater good, namely the strict
8 enforcement of the law and the need to avoid Protestant
9 ill-feeling."
10 Fourthly, that Ministers knew that the arrest
11 operation "would be likely to lead to a shooting war
12 between the IRA and the Army and innocent marchers would
13 be likely to be killed and injured as a result."
14 Considering that, again I quote:
15 "The marchers were law breakers and allies of the
16 IRA whose lives could properly be jeopardised in order
17 to demonstrate to the Northern Ireland Government and
18 its supporters that the ban on marches would be enforced
19 with zeal."
20 This allegation was put in terms to Lord Carrington,
21 who described it as "an accusation which really did not
22 make sense", as well as being "disgraceful," to
23 Sir Edward who said "it was completely wrong," to
24 Sir Arthur Hockaday, who said "it would have been the
25 worst possible thing to do," and to Mr Kelvin White, who
1 said "absolute and total rubbish from beginning to end."
2 The Tribunal will also note the evidence from Lord
3 Crawford's second statement. Lord Hume and Viscount
4 Whitelaw are dead. Lord Pym was in 1972 the
5 Parliamentary Secretary to the Treasury and the chief
6 whip, and had no recollection of the meetings of GEN 47
7 on 27th or 31st January.
8 With those exceptions, the Tribunal has, I think,
9 heard evidence from all the material persons who were
10 present at the meeting.
11 It is for the Tribunal to decide what view it takes
12 of that evidence and whether, when there was
13 a possibility of a new political initiative to find
14 a solution of the problems of Northern Ireland, it made
15 sense deliberately to endanger the lives of innocent
16 Catholics in order to avoid Protestant ill-feeling.
17 The Joint Security Council met on the same day. The
18 Tribunal will recall, may we have G76.465, that the
19 minutes include a paragraph which reads:
20 "The basic plan here will be to block all routes
21 into William Street and stop the march there. The
22 operation might well develop into rioting and even
23 a shooting war."
24 The Tribunal may need to take a view as to the
25 significance of that phrase. The minutes do not reveal
1 exactly how, in the view of the committee or one of more
2 of its members, the operation might develop into "even
3 a shooting war", or the degree of likelihood of that
4 happening, although the use of the word "even" seems to
5 indicate that it was regarded as only a possible result.
6 The terms of the minute appear to show that it was
7 the operation of blocking the routes into William Street
8 and stopping the march there which, it was said, might
9 have the effect. So one may perhaps infer what was
10 contemplated was rioting at the blocks where the march
11 was stopped and the possible use of firearms at this
12 stage, either with a view to getting past the blocks or
13 to take advantage of a riot. The possibility of
14 a shooting war does not appear, from the minutes, to
15 have been expressly linked to any arrest operation.
16 Nor, according to the minutes, does the JSC any more
17 than the D Ops Committee, appear to have discussed the
18 carrying out of a specific operation or to have been
19 considered or been apprised of the advice of Chief
20 Superintendent Lagan.
21 The Tribunal wish to bear in mind Sir Arthur
22 Hockaday's evidence, the passage was "no more than
23 a statement of the obvious".
24 It will equally want to take into account the
25 evidence of Sir David Ramsbotham, referred to at chapter
1 10.3.47, of Madden & Finucane's submission, that
2 General Carver was aware and would have informed the
3 Prime Minister and the Defence Secretary of such a risk.
4 Whatever the nature of the reference at the JSC to
5 the possibility of a shooting war, it does not appear to
6 have arisen for consideration at GEN 47 in London. As
7 to that, GEN 47 took place in London at the same time as
8 the JSC met in Belfast, so on any view what was being
9 said there could not have been know to GEN 47 when it
10 met, unless some message was sent from one meeting to
11 another, of which there is no evidence from anyone with
12 direct knowledge.
13 Secondly, the minutes of the JSC were delivered to
14 the MoD. There is considerable doubt as to whether they
15 would have reached the MoD before the 30th let alone on
16 27th. Thirdly, there is no evidence that these minutes
17 reached 10 Downing Street and the evidence of Sir Edward
18 Heath, Lord Carrington, Lord Balniel and Lord Armstrong
19 was that they did not see the minutes of the JSC nor
20 were they aware of the possibility of a shooting war,
21 nor despite the belief of Sir David Ramsbotham, briefed
22 about the risk of an engagement with the IRA.
23 The observations I have just made take the documents
24 at their face value. The Gifford team submit that is
25 the wrong approach and that the likelihood is that the
1 members of the JSC were told of the arrest plan but
2 thought it wiser not to minute any detail thereof.
3 Secondly, the reference to a shooting war was
4 a reference to a prediction as to what would happen when
5 the march was blocked, rioting started and the arrest
6 operation began; and thirdly the GOC's predictions must
7 have been communicated to the Ministry of Defence and
8 the Chief of the General Staff and a report of the
9 meeting made to the Home Office by the United Kingdom
10 representative and to the MoD by the JSC. In this
11 connection it is to be noted that when speaking in the
12 House of Commons on 1st February 1972, Lord Balniel
13 said, the reference is V27 column one, that "the arrest
14 operation was discussed by the Joint Security Council."
15 The brigade order group conference took place in the
16 afternoon Friday 28th. Colonel Wilford conducted
17 a reconnaissance before it. A number of issues arise,
18 including the following: did Colonel Wilford and
19 Brigadier McClellan have any discussion prior to the
20 conference about his plans? Secondly, what discussion
21 was there at the conference itself about tactical plans
22 for the arrest operation. The answer would appear to
23 be: not much. The Tribunal might find telling in this
24 respect the fact that Brigadier McClellan's recollection
25 to the Tribunal was that as Colonel Wilford had two days
1 or so to do a reconnaissance and the tactical plan was
2 his "before he had done a reconnaissance there was no
3 point in discussing it with him almost" in fact he
4 appears already to have made one.
5 The next important issue is whether separation was
6 discussed and then whether any discussion took place
7 afterwards with Brigadier McClellan, to which the answer
8 would appear to be: no. As I said, Madden & Finucane
9 submit that the separation was either never a part of
10 the planning process or was alternatively an
11 afterthought. The Tribunal will wish to reach, if it
12 can, a conclusion on that.
13 In evaluating the evidence the Tribunal will have to
14 determine whether it accepts that separation was
15 mentioned at the conference, whether or not it was
16 mentioned in a perfunctory way and whether or not there
17 was any detailed discussion on the topic. It will need
18 to consider whether the position is both that separation
19 was mentioned and that it was something that went
20 without saying, which was what was suggested by the
21 evidence of Colonel Jackson. It will also need to
22 address the submission that General Welsh perjured
23 himself in his evidence to the Tribunal on this issue.
24 The Tribunal will also have to consider whether the
25 arrangements for monitoring whether sufficient
1 separation had occurred were adequate.
2 Various allegations have been made over the years as
3 to the existence of various plans, to either adopt
4 a "shoot to kill" policy or use the march in order to
5 draw out the IRA and shoot them, or to punish the
6 population of the Bogside or to soften them up. In his
7 opening statement on Day 49, Lord Gifford submitted in
8 these terms:
9 "We cannot simply say, as we submit Mr Clarke tried
10 a little facilely to do, to say because there is no
11 evidence, we cannot conclude there was any sinister
12 plan."
13 It is for the Tribunal to decide whether or not my
14 observations were facile, whether slightly or otherwise.
15 If they were, the Tribunal should without hesitation
16 reject them. It is however important to note that my
17 submission was not limited to what might be thought the
18 somewhat pedestrian observation that the absence of any
19 evidence of any sinister plan is an indication that none
20 existed. It extended to the facts (a) that the evidence
21 of those who would have been concerned to implement such
22 a plan was that no such plan existed. The Tribunal will
23 have to reach a view as to the credibility of that
24 evidence.
25 Secondly, the documentation both before and after
1 30th January 1972, not only betrayed no hint of such
2 a plan, but was inconsistent with it. Thirdly, the
3 making and implementation of such a plan would have been
4 an absurdity since it would be likely to wreck all
5 chance of a political initiative or of the
6 implementation of the plans of the Home Secretary then
7 under active consideration. And fourthly, the meeting
8 of the Northern Ireland policy group at about 10.30 on
9 Monday 31st January after the event reveals no hint of
10 any such plan.
11 I recognised in opening expressly the possibility
12 that plans could be made in secret and purposely left
13 out of even secret documentation, but plans cannot be
14 put into effect without communication in some manner to
15 those who are to implement them. It is for that reason
16 that the evidence of those who would have to approve or
17 implement the plan if it existed and the Tribunal's view
18 of that evidence is of particular importance.
19 In their final submissions the Lawton team have
20 devoted space with a view to showing that the opening
21 submissions made on behalf of several interested parties
22 and their subsequent development were ill-founded and on
23 occasion mutually inconsistent. It is for the Tribunal
24 to decide whether there is any and if so what substance
25 in the various formulations that have been put forward
1 which may be ranked in descending order of turpitude and
2 perhaps increasing order of possibility which, put in
3 broad terms are as follows: firstly, the suggestion that
4 there was a plan to kill civilians. Secondly, there was
5 contemplation of the use of unlawful force; thirdly,
6 there was deliberate risk-taking or impediment of
7 civilian life in order to reassert authority and assuage
8 Loyalist opinion. Fourthly, there was a failure to
9 avoid known risks of death or injury to civilians or
10 risks that ought to have been known either by letting
11 the march through or by preventing the arrest operation
12 taking place.
13 The battalion orders group took place on the
14 Saturday. The notes of the orders are notes that the
15 Tribunal has seen. They record the battalion would take
16 up its position in the Foyle College car park and
17 include a passage, paragraph 3, which reads:
18 "If the march takes place and confrontation becomes
19 hostile the battalion will deploy forward to break up
20 the rioters and make the maximum number of arrests. At
21 this stage I cannot give a detailed tactical plan.
22 I will give the company deployment in our forming-up
23 place and then give my concept of how I think the battle
24 can go."
25 As these notes appear to make clear there was, by
1 this stage, no detailed tactical plan just as there had
2 been no such plan at HQNI or brigade level earlier.
3 What appears to have been contemplated --
4 Colonel Wilford's recollection of these initial plans
5 was thin -- was that some form of pincer attack was to
6 be made according to the route taken by the crowd to
7 approach the barricades. Colonel Wilford said that had
8 his original plan gone ahead it would not have been
9 necessary to give further detailed tactical planning at
10 the forming-up places. Although this is perhaps
11 a little difficult to square with his notes which
12 indicate that this is what he would do. He certainly
13 had no recollection of doing so.
14 In each case the Presbyterian Church was envisaged
15 as one of the points of access. Lieutenant Colonel
16 Wilford said that he assumed at this stage from his
17 observation from one of the buildings that he had used
18 for reconnaissance there was a concealed route that
19 could be taken from the church to Aggro Corner. There
20 does not seem to have been any discussion at this order
21 group of the concept of separation or of the need to
22 distinguish the hooligan from the non-hooligan, a fact
23 that Madden & Finucane pray in aid to suggest that
24 separation had not been discussed at the co-ordinating
25 conference either. There is also no evidence that these
1 plans were communicated to brigade for whom
2 Madden & Finucane suggest it would have been material to
3 know, amongst other things, how rioters were to be
4 prevented from retreating south or west and how he
5 proposed to break out from the church.
6 As we know in the event the route over the church
7 was ruled out because the ground level on one side was
8 significantly lower on the other. According to the
9 Lawton team, this was "just the sort of fact which is
10 all too obvious with the benefit of hindsight but may
11 well not have been anticipated even with the benefit of
12 careful preparation and/or local knowledge. Only those
13 who had actually climbed the wall and looked at the
14 ground on both sides were likely to have appreciated the
15 problem."
16 It is for the Tribunal to decide whether or not this
17 flaw in an important potential access point was
18 something that could and should have been appreciated
19 either before 30th January or, at any rate, before the
20 time when it was in fact discovered on that day.
21 The companies' order groups were held in the late
22 afternoon, platoon order groups in the evening. Perhaps
23 the most important matter for the Tribunal to endeavour
24 to reach a conclusion upon is whether, of the order
25 group for the Anti-Tank plan, Lieutenant 119 said
1 anything to the effect of either "let us teach these
2 buggers a lesson, we want some kills tomorrow" which was
3 O27's 1975 version or something along the lines "we
4 should take care not to let them get us before we get
5 them" and whether one particular soldier, namely F,
6 showed particular interest in the possibility of getting
7 some kills.
8 One issue the Tribunal may wish to address is as to
9 the adequacy of the planning carried out by NICRA in
10 respect of the march and, in particular, whether, as
11 alleged in the Aitken team final submissions, there was
12 an inadequate number of stewards for the size of the
13 march anticipated and no knowledge by NICRA as to their
14 number or provenance. B, inadequate instructions were
15 given to stewards who were inappropriately deployed. C,
16 the communication equipment provided was deficient and
17 D, there was insufficient communication of the change in
18 the march route from that advertised.
19 The Tribunal may wish to consider whether, even if
20 any defects it finds in the NICRA planning had been
21 remedied that would have made any difference if the
22 march still went ahead. Assume there had been many more
23 stewards at Aggro Corner, but the intention to go down
24 Rossville Street had been announced at the beginning of
25 and during the march and that there was adequate
1 loudspeaker equipment, the Tribunal might think it an
2 open question whether the course of events would have
3 been markedly different. Once the march got to
4 Aggro Corner it would in practice have been a tall order
5 to prevent hooligans from running down to barrier 14
6 because of the large expanse of land to the north which
7 it would take a lot of manpower to cordon off.
8 From the other side of the fence, Army planning, the
9 Tribunal may think the relevant questions include the
10 following: firstly, whether it was appropriate to stop
11 the march at all. Secondly, whether it was appropriate
12 to plan contingently for an arrest operation. Thirdly,
13 whether it was appropriate to use 1 Para as the
14 arresting force. Fourthly whether the planning of the
15 arrest operation was adequate and in particular whether
16 sufficient regard was had to the risks to innocent
17 civilians. Fifthly, whether the operation should have
18 been launched on the day when it was, and lastly whether
19 the operation was properly implemented when it was
20 launched.
21 As to the question whether it was appropriate to
22 stop the march at all, the Tribunal may think the
23 options available were effectively the
24 following: firstly the course proposed by Mr Lagan of
25 allowing the march to proceed to the Guildhall and
1 a meeting to take place there. Prosecutions of marchers
2 to follow after the march was over.
3 Secondly, the course in fact adopted or intended to
4 be adopted, namely to prevent the march from crossing
5 the containment line and to launch an arrest operation
6 if rioting developed and continued, provided the
7 Tribunal accepts this was part of the plan, there was
8 a sufficient degree of separation between marchers and
9 hooligans. Thirdly, to contain the march within the
10 containment line, but not to launch any arrest operation
11 unless absolutely necessary, either to prevent the
12 barriers being overrun or prevent injury or loss of life
13 and to allow time for any hooligan activity to peter
14 out.
15 The questions at issue by may looked from a number
16 of angles. One is whether or not the decisions made
17 were competently made. As to that the Tribunal may
18 think the question is whether the decisions made by
19 those who made them were within the range of choices
20 open to the decision-makers in the exercise of a
21 professional judgment. Any judgment on that question
22 has to be made by reference to what was or ought to have
23 been known when the relevant decisions were made and not
24 with the perfect 20/20 vision of hindsight.
25 A second question is whether, even if the decisions
1 made were competently made, it would in the light of the
2 material that was or ought to have been available for
3 consideration at the time, have been wiser to adopt
4 a different course. If the Tribunal thinks it
5 appropriate to address this question at all, it will no
6 doubt be aware of the danger of hindsight even if
7 expressly disavowed, in fact influencing any such
8 conclusion. The third question is whether, with the
9 benefit of hindsight, the decisions made were flawed.
10 There is, however, another dimension.
11 Responsibility for the events of the day cannot be
12 determined simply by asking whether some one or more
13 persons were incompetent, could have been wiser or as it
14 turned out made the wrong decision. Although in 1972
15 the European Convention was not part of the municipal
16 law of the United Kingdom and would not be so for
17 another 26 years, the United Kingdom was a party to it
18 and had obligations under it, even though they were only
19 capable of vindication in Strasbourg. The obligations
20 of the United Kingdom under Article 2 of the Convention
21 require one to examine "whether the force used by the
22 soldiers was strictly proportionate -- not only whether
23 the force used by the soldiers was strictly
24 proportionate, but also whether the policing operation
25 was planned and controlled by the authorities so as to
1 minimise to the greatest extent possible recourse to
2 lethal force, paragraph 194 of the McCann decision."
3 In our written submissions we have considered
4 a range of views on the question whether it was
5 appropriate to stop the march which I do not propose now
6 to rehearse. Another question the Tribunal will need to
7 address is what risk to the safety of innocent civilians
8 was or should have been recognised by the Army and the
9 Stormont and Westminster governments and their
10 officials.
11 The expression "risk to the safety of innocent
12 civilians" covers a wide spectrum. The risk may vary
13 from the theoretical to the practically certain and that
14 of which there is a risk may range from the forceful
15 scuffle of demonstrators to a pitched gun battle with
16 paramilitaries. However, at the time the appearance of
17 soldiers on the streets carried with it some risk that
18 someone might try and shoot them and possibly endanger
19 others in the process in which case the army would
20 respond and there could indeed be a shooting war.
21 The Tribunal may therefore think that particular
22 care is required in using and analysing the use by
23 others of the somewhat elastic terminology of "risk".
24 Even the expression "substantial risk" or "serious risk"
25 can mean different things to different people. Thus the
1 proposition that the Government or the Security Forces
2 foresaw a risk to innocent civilians and nevertheless
3 was prepared to run with it begs many questions as to
4 what degree of risk it foresaw, of what risk and what
5 were the implications of action and inaction.
6 We examine in our written submissions the various
7 contentions of the relevant interested parties about
8 risk, at the risk of over-simplification on the one hand
9 Madden & Finucane contend that the Stormont and British
10 governments approved an arrest operation in which they
11 saw as a foreseeable outcome that the lives of innocent
12 civilians might be endangered and decided to run the
13 risk of those lives being endangered and both
14 governments neglected to take steps to ensure the
15 operation was conducted in a manner designed to minimise
16 to the greatest extent possible the risk to the lives of
17 innocent civilians.
18 On the other hand the Lawton team distinguish
19 between the risk of non-rioters getting involved in an
20 arrest operation and getting arrested and the risk of
21 people not using firearms getting caught up in a
22 firefight. The former risk was obvious. As to the
23 latter, the assessment was, as they contend, that the
24 IRA would not fire from amongst the peaceful element of
25 the crowd; that any armed intervention would be likely
1 to be related to hooligans; precautions were being taken
2 in the form of a large number of visible soldiers in the
3 countersniper role and the encouragement of the presence
4 of the media and if there was firing at the troops it
5 would be sporadic. That risk, they submit, had to be
6 balanced against the need for an arrest operation. They
7 submit, "that was not open to General Ford to omit to
8 make such provision necessary if the army was to be able
9 to fulfil its obligation to protect the lives of troops,
10 to maintain law and order and protect property on the
11 grounds that the IRA might indulge in sporadic sniping
12 of soldiers on the barriers or those attempting to make
13 arrests."
14 It will also wish to consider the Aitken team's
15 submission, that it is doubtful whether an arrest
16 operation, particularly one close to Army barriers,
17 would increase the risk of shooting incidents occurring.
18 The Tribunal may think the cogency of that point is
19 significantly dependent on the operation being quick,
20 indeed fairly close to the barriers and in circumstances
21 of separation.
22 As I have said, it is important to be clear what
23 risk one is talking about. Specifically is it a risk
24 (a) of physical confrontation, including throwing of
25 missiles when the march and rioters met the army or is
1 it a risk secondly that the IRA or freelancers would
2 fire at the army at the barriers and that civilians
3 might get caught in the cross-fire. Thirdly, is it
4 a risk that if an arrest operation took place, soldiers
5 would use lethal fire in carrying it out, because, for
6 instance, of the type of soldiers they were, the
7 circumstances in which they were required to carry the
8 operation out or the deficiencies of the planning of it.
9 The Tribunal will have noted the Madden & Finucane
10 team "do not advance the proposition that an arrest
11 operation increased the risk of shooting incidents
12 occurring in as much as what is being referred to is the
13 risk of attack by civilian gunman. This marries with
14 their submission that all the deceased and injured were
15 intentionally shot, not shot by mistake or caught in
16 cross-fire, without justification when neither they nor
17 anyone in their vicinity was doing anything which did or
18 could have been thought to justify shooting. If this is
19 so then the significance of the reference to a shooting
20 war at the JSC on 27th January is much reduced.
21 On this hypothesis someone foresaw as a possibility
22 what did not in fact take place. The Tribunal will
23 nevertheless wish to consider whether the arrest
24 operation did increase the risk of attack by civilian
25 gunmen and its possible effect on innocent civilians,
1 particularly if the Tribunal concludes there was any
2 such attack and whether, on that account, either it
3 should not have been attempted or should have been
4 ordered differently.
5 What Madden & Finucane do submit is that the Army
6 ought to have had in contemplation the risk of the use
7 of lethal force by soldiers because of a number of
8 factors known to generals Carver and Tuzo and Ford and
9 Brigadier McClellan, notably the presence of a large
10 number of unarmed civilians; the use of soldiers armed
11 with SLRs to police them; the unfamiliarity of 1 Para
12 with the geography; their reputation for aggression; the
13 difficulty of identifying the source of gunfire in the
14 Bogside; the difficulty of controlling the use of force
15 by troops once firing breaks out and the fact that
16 soldiers have not been slow to use lethal force in
17 Northern Ireland in the past.
18 To the extent the Tribunal accepts those factors or
19 any of them created or increased the risk of lethal
20 force being used by soldiers, the Tribunal may wish to
21 consider firstly whether those factors increased the
22 risk of the use of unlawful lethal force, and secondly
23 whether or not the risks involved were ones that the
24 army were justified in taking, having regard, amongst
25 other things to the consequence of not taking them or
1 ones in relation to which some different course of
2 action should have been taken.
3 If, and to the extent the Tribunal has any
4 criticisms of the decision to stop the march or to carry
5 out an arrest operation, the question will arise as to
6 at whom such criticisms should be directed. That in
7 turn will depend upon what view the Tribunal takes as to
8 the extent to which those concerned were aware of what
9 was planned, did or should have realised the risk of
10 death or serious injury from the fulfillment of the
11 plan, considered and evaluated the risks or should have
12 done so and informed or advised others of risk or should
13 have done so.
14 In the body of our submissions we address the
15 various contentions to the effect that different
16 individuals, in particular members of Gen 47, had or
17 should have been at greater appreciation of the risks
18 that they may have said. The Tribunal may also wish to
19 consider whether there was an inadequate supply of
20 information, whether culpable or otherwise to GEN 47 and
21 whether there was any imbalance between the way in which
22 matters were presented to it and the way they were
23 regarded by the Army so far as the degree of risk of
24 violence and even shooting was concerned.
25 May we have on the screen G48.301. As to that,
1 GEN 47 was, according to the evidence of its members,
2 not told of an arrest operation by 1 Para. In
3 paragraph 10 of his memorandum of January 1972 General
4 Ford had recorded that it was the opinion of the senior
5 commanders in Londonderry that "if the march took place,
6 however good the intentions of NICRA may be, the DYH,
7 backed up by the gunmen, will undoubtedly take over
8 control at an early stage."
9 Similarly, in the background description to
10 Operation Forecast, it was said "we expect a hooligan
11 element to accompany the marchers and anticipate an
12 intensification of the normal level of hooliganism and
13 rioting during and after the march, almost certainly,
14 snipers petrol bombers and nail bombers will support the
15 rioters."
16 The Tribunal will have to consider whether this was
17 simply a recognition of threats that were always there
18 or whether it was a consideration that should have more
19 specifically been drawn to those who were making
20 decisions as to the day.
21 I turn to the use of 1 Para as an arrest force. In
22 the body of our submissions we address that question.
23 The Tribunal may think that the first question to be
24 answered is whether General Ford chose 1 Para for the
25 reasons that he stated. Or alternatively, as
1 Madden & Finucane submit, that those reasons are untrue
2 and he chose them, as they contend, because of their
3 reputation for going in hard, his dissatisfaction with
4 8th Brigade, the fact he wanted a battalion that did not
5 operate a policy of containment and because it would
6 give him more control of the operation.
7 Our submissions also contain an analysis, some of
8 which is derived from the helpful submissions of the
9 Aitken team which appear to show that an arrest force
10 could, if decision had been so made, have been made up
11 of local troops.
12 The next question is whether 1 Para was a wrong or
13 inappropriate choice --
14 LORD SAVILLE: I think we will take a five-minute break for
15 our LiveNote writer.
16 (11.00 am)
17 (A short break)
18 (11.15 am)
19 MR CLARKE: I was saying the next question was whether
20 1 Para was a wrong or inappropriate choice. In our
21 submissions we set out at some length the arguments in
22 favour both of the negative and an affirmative answer to
23 that question.
24 The next questions are: did or should the choice of
25 1 Para have caused General Ford or others to foresee
1 there would be an increased risk of loss of life should
2 they come to be deployed. Secondly, given that 1 Para
3 were to be used as the arresting force, was there more
4 that should have been done and by whom by way of
5 reconnaissance briefing and liaison in order to obviate
6 any disadvantages that 1 Para might be under in not
7 having deployed to any material extent in Londonderry
8 before. On a more general level, the Tribunal will want
9 to consider whether the planning of the arrest operation
10 was adequate at HQNI, brigade and battalion level.
11 I have already pointed out the detailed planning for the
12 arrest operation was left by General Ford to those lower
13 down and by Brigadier McClellan to Colonel Wilford.
14 The Tribunal may want to consider whether
15 General Ford should have had himself better informed as
16 to how the arrest operation that he wanted was going to
17 work. As to whether it was satisfactory for
18 Brigadier McClellan to be responsible for launching the
19 operation in whole or in part, when on the day he had
20 a very limited idea of what exactly he was launching.
21 Thirdly, the Tribunal may wish to consider whether
22 the planning at brigade level was, so far as the arrest
23 operation was concerned, unacceptably thin in that it
24 did not sufficiently address issues such as the likely
25 route into the Bogside, how the concepts of scoop-up and
1 separation would work, how separation was to be
2 monitored, how the activities of 1 Para were to be
3 co-ordinated with the resident battalions, whether there
4 should be any geographical limitation as to how far the
5 troops should go, whether the arrest force should in
6 certain circumstances withdraw and where the arrest
7 operation was envisaged as taking place.
8 Next, the Tribunal may wish to consider whether
9 there was sufficient co-ordination between the units
10 involved so they knew what was likely to happen, what
11 barriers would probably have to be opened and who would
12 have to go where. Then the Tribunal may wish to
13 consider whether the planning at battalion level was
14 adequate and whether or not the questions that I have
15 mooted in relation to brigade level are more
16 appropriately directed to the battalion level. Lastly,
17 whether there was adequate liaison by Colonel Wilford
18 with 8th Brigade and the resident battalions thereof.
19 Our submissions canvass the rival answers that have been
20 or may have been given to those answers.
21 If the Tribunal were to find that there were
22 failings in planning, that would not necessarily have
23 any bearing how it came about 27 people were shot. The
24 Tribunal may, however, wish to consider the submission
25 of the Aitken team adopting a suggestion of mine, that,
1 and I quote "the way in which the plan appears to have
2 been executed seems to have been inconsistent with the
3 basis upon which it was to take place in the first
4 place."
5 Since the intended quick in and out scoop-up of
6 rioters close to the barriers became a frontal assault
7 on a crowd that was running away and, secondly, the
8 Tribunal may like to consider whether the potential
9 failings caused or contributed to the unsatisfactory
10 outcome whereby most of those arrested were those left
11 at 33 Chamberlain Street and the gable end of
12 Glenfada Park North, some of whom were, on any view, no
13 more than marchers and others of whom might have been,
14 but could not have been shown to have been rioters.
15 The Tribunal may wish to consider the further
16 suggestion made by the Aitken team that if the operation
17 as carried out had been proposed in advance,
18 Brigadier McClellan would have been unlikely to have
19 approved it. Whether that is so or not, the Tribunal
20 will wish to consider whether there was inadequate
21 planning as a result of which the operation as carried
22 out was likely to be unsuccessful and indeed risky. If
23 it were so to conclude, it would be mean that the
24 tragedy of Bloody Sunday arose for an operation that was
25 unlikely to achieve its ends and carried out on the
1 orders of someone who had no clear idea of what the
2 arrest force planned to do at the time when he launched
3 it.
4 I turn now if I may to the events of the day itself.
5 The Tribunal has a mass of evidence about the events of
6 the day prior to the time when the Paras entered the
7 Bogside, particularly about the progress of the march,
8 the developing of the rioting at barriers 12, 13 and 14,
9 the use of water cannon there, the crew being overcome
10 with gas, the use by soldiers of gas at barrier 12.
11 Much of this evidence has been cited in their
12 submissions by the interested parties. It is also
13 addressed or referred to in our general submissions on
14 Sector 1, no useful purpose would be served by me
15 referring to the material, which is very extensive,
16 orally.
17 It may, however, be helpful to identify some of the
18 more important questions that arise. The first question
19 is whether the Gin Palace and brigade headquarters had
20 a BID 150 encryption unit. It is convenient to deal
21 with this in a moment in relation to the question as to
22 whether any and if so what orders were given. A second
23 question is: when did the plan change from one whereby
24 Support Company would go over or through the wall to the
25 east of the church to one where the company would go
1 through barrier 12 in vehicles? There would seem to be
2 only a limited number of possible answers to that
3 question.
4 One possible answer is that the change was made and
5 communicated at lunchtime on the Sunday, in which case
6 Major Loden and Support Company seem to have been
7 inexplicably unprepared for going in through barrier 12
8 and spent unnecessary time, from 1540 onwards, according
9 to Major Loden's Diary of Operations getting the Mortar
10 Platoon to clear the wire off the wall to the east of
11 the church and moving the Machine-Gun Platoon into Abbey
12 Taxis.
13 The second possibility is that the change was
14 flagged as a possibility but no more at lunchtime, in
15 which case the Tribunal might think there was a failure
16 of timely appreciation of the need to go and preparation
17 for going through barrier 12 since, according to
18 Major Loden's Diary of Operations, the troops were only
19 ordered to their vehicles at 1600, but on this
20 hypothesis the activities on the wall and in Abbey Taxis
21 are not so strange.
22 A third possibility is that the change was made in
23 Colonel Wilford's mind at lunchtime, but only
24 communicated or effectively communicated to Major Loden
25 at 1600. If so the Tribunal may think it is either
1 a failure of or a breakdown in communications which was
2 avoidable.
3 The fourth possibility was that the change was only
4 made in Colonel Wilford's mind at about 1600 when the
5 difficulty of getting over or through the wall appeared
6 insuperable and only then communicated.
7 This was a controversy that existed in 1972. The
8 relevant evidence, which is that of Major Loden and
9 Colonel Wilford, is set out in our submissions.
10 Two other questions of some significance are,
11 firstly: what was the strength and voracity of the
12 rioting? Secondly: whether, as NICRA contend, the use
13 of the water cannon at barrier 14 was precipitated and
14 unwarranted in that the stewards were, prior to that
15 time, getting stone throwers under control and that
16 rioting only began after the first use of the water
17 cannon. The evidence on that score is perhaps most
18 usefully set out in the submissions of the Aitken team
19 of NICRA and ourselves.
20 At some stage rioting developed in front of Abbey
21 Taxis. The evidence is conflicting as to the stage at
22 which that happened and whether the march was in full
23 flood, coming to an end or somewhere in between. The
24 Tribunal might find convincing the submission developed
25 in the Lawton team's submissions beginning at chapter
1 6C-137 that significant stone-throwing did not occur
2 until the tail-end of the march was passing down
3 William Street because of the evidence there cited, the
4 unlikelihood of rioting developing as the main body of
5 the march with many ordinary rioters passed along, the
6 fact that soldiers of the Machine-Gun Platoon were not
7 ordered to move into place until about 1540 and do not
8 appear to have been spotted immediately. The
9 likelihood, confirmed by the evidence that they cite,
10 that rioters who had been driven back from barrier 14 or
11 barrier 12 then diverted their attention to Abbey Taxis
12 after word had spread that there were soldiers there.
13 There next arise for consideration three separate
14 but related questions. Firstly: what was the situation
15 at barriers 12 and 14 in the ten minutes leading up to
16 the time when the soldiers went in? Secondly: to what
17 extent was there separation between rioters and marchers
18 before the soldiers went in? Thirdly: how did the
19 situation appear to Colonel Wilford and
20 Brigadier McClellan?
21 To answer the second question, the extent of
22 separation, it is of course necessary to look to the
23 position beyond the immediate position at the barriers
24 and also to know how far the paratroopers were going to
25 go into the Bogside. May we have on the screen W126.
1 The position on the ground as reported to brigade can be
2 discerned by looking at the transcript of the Porter
3 tape which has set out extensively, both in our
4 submissions and those of others, the material is
5 extremely detailed and not easily summarised. It is
6 perhaps convenient however in order to illustrate the
7 issue to take the message from Lieutenant Colonel Welsh
8 in the helicopter at serial 338 at about 1554:
9 "Zero, this is 61 Yankee. General state of the
10 crowd. It now stretches between Aggro Corner which has
11 just had some more gas put on it, down to about
12 100 yards beyond the flats. People are generally
13 spreading out and the drift of people is definitely down
14 to beyond the flats and back the way they came."
15 The Tribunal may agree with the comment by the
16 Aitken team that in the light of serial 338 and its
17 reference to a crowd stretching from Aggro Corner to
18 about 100 yards beyond the flats, it was unsurprising
19 Brigadier McClellan should not immediately have
20 responded positively to Colonel Wilford's imitation for
21 orders. Further, if the evidence of Dr Stephen Bell at
22 her Majesty's Nautical Office as to the timing of the
23 EP28 photographs is correct, at the time when serial 338
24 was transmitted, 1544, the scene was as in, may we have
25 it on the screen, EP28.1, although that photograph, it
1 is right to say, could have been either as late as 1559
2 or, as early as 1549.
3 The question is whether the information coming in
4 thereafter was sufficient to indicate that separation
5 had occurred. May we have on the screen W127. The next
6 message from Lieutenant Colonel Welsh at serial 348,
7 this is Kilo 61 Yankee. "General crowd movement now is
8 down into the Lecky Road from the area of the flats. It
9 seems as though a lot of people feel they have made
10 their protest and are now returning back to their
11 homes."
12 This message, which was heavily relied on as
13 indicating separation is clear, but the Tribunal may
14 think that whilst it does indicate, as it says, the
15 general movement of the crowd and is one of a series
16 consisting of serials 320 and 329, it does not indicate
17 the spread of the crowd, that is to say where it started
18 and where it ended and how many were still around
19 between Aggro Corner and the Rossville Flats.
20 Lieutenant Colonel Steele said that serial 348, at which
21 we are now looking, and the absence of any description
22 of crowds at Aggro Corner or in the wasteground painted
23 a picture for him, I quote "that the march was over and
24 that people had moved away from behind the flats."
25 The Tribunal may think that there arises for
1 consideration, whether brigade sought or received
2 a sufficiently clear indication of separation and
3 whether it was satisfactory for Brigadier McClellan to
4 proceed on a confirmation from Colonel Welsh that
5 separation had taken place which was based on messages
6 on the Ulsternet that Brigadier McClellan could hear
7 himself and was not based on asking Colonel Welsh
8 specifically what was the position between Aggro Corner
9 and the Rossville Flats. The Tribunal will bear in mind
10 in this connection that the evidence of Colonel Welsh
11 and Brigadier McClellan to Lord Widgery was that there
12 was another message from the helicopter not recorded in
13 the brigade log, but at 1604, that the tail of the crowd
14 had passed the northern edge of the flats.
15 There is no such message on the Porter tape. What
16 there is, may we have W128, is a message at 1603 or 4
17 from 22LAD, whose log this is:
18 "Hello zero, this is 90 Alpha. There is a crowd of
19 500 on Fox's Corner being addressed from a loudspeaker
20 van. These appear to be normal civil rights people.
21 There is still a crowd of about 150 hooligans at the
22 junction Rossville Street/William Street, over."
23 Looked at from the opposite angle the Tribunal might
24 take the view that the drift of the messages coming in
25 was that people were moving away, that those messages
1 and the absence of people to the north of the
2 Rossville Flats, coupled with the fact that there was
3 a delay of time between serial 348 at 1559 and the
4 giving of the order at or before 1607, meant that
5 Brigadier McClellan could take the view that adequate
6 separation had been achieved for the operation to be
7 launched.
8 As to the position at barriers 12 and 14 when the
9 order was given, the evidence is not entirely clear and
10 the numbers will undoubtedly differ according to whether
11 you take the time before the Paras began to line up at
12 the barrier or the very moment when they came in or
13 somewhere in between. At 1550 serial 326 had reported
14 Little James Street to be clear, but it may not have
15 remained so. At 1602 there was still a hooligan element
16 in the area William Street/Little James Street and in
17 front of barrier 14, that is serials 353 to 359. At
18 1604 there was a crowd of about 150 hooligans at
19 Aggro Corner, that is serial 365.
20 There is civilian evidence from Father Mulvey and
21 Mr Porter of seeing William Street either empty or
22 almost empty at about 1600, father Mulvey looking from
23 the cathedral, and Mr Porter from his shop, but there
24 may have been a crowd at the top of Chamberlain who
25 Mr Porter would not have been able to see who may have
1 retreated there after the water cannon was used at
2 barrier 14 a second time at 1605. But there is also
3 evidence of there being as many as 100 present at
4 barrier 14 when the soldiers started to open the barrier
5 or at low as ten. We set out the respective evidence in
6 our submission.
7 As to what the actual position from Aggro Corner
8 southwards was when the Paras went in, the Tribunal may
9 think that one of the best guides comes from looking,
10 may we have EP28.45, on the one hand and EP28.5. These
11 photographs were, according to Dr Bell, taken at some
12 time between approximately 1610 and 1612 and they show
13 a sizeable body of people who self-evidently must have
14 been further north when the Paras came in.
15 The Tribunal might find it helpful to look at those
16 photographs and also the heli-tele video and the prints
17 of it, see for instance, may we have on the screen
18 EP29.25. May we scroll through, 25, 24, 23, 22 and 21,
19 which are difficult to make out, but appear to show that
20 whilst Rossville Street itself is largely empty when the
21 first two Pigs came in, nevertheless, the first Pig
22 scatters a fair number of civilians as it progresses
23 towards the back of Chamberlain Street. One of the
24 questions is: where did these people come from and were
25 they all people who had previously been rioting?
1 One of the most controversial questions that the
2 Tribunal needs to address is whether Brigadier McClellan
3 gave any order and, if so, what it was. As to that,
4 I venture to suggest that there is little room for the
5 proposition that an order was given, but not by the
6 secure means. Those who say that an order was given say
7 that it was given by the secure means. If it was given
8 otherwise, the only realistic candidate for the means of
9 transmission was the brigade net, in which case it could
10 be expected to appear on the Porter tape, which it does
11 not. So the question whether there was any order given
12 and whether there was a secure means are closely linked.
13 If no order of any given was given to 1 Para and
14 there was no secure means, it would mean the evidence of
15 Brigadier McClellan, Colonel Steele and Colonel Wilford,
16 both to Lord Widgery and this Inquiry is completely
17 false and must at all times have been known to be so.
18 It would secondly mean the brigade log contains a wholly
19 fake entry which Lieutenant Colonel Steele caused to be
20 inserted into the log knowing it was fake. Thirdly it
21 would mean the log of 1 Para contains an equally fake
22 entry, but in different and bafflingly obscure terms.
23 Fourthly it would mean that the evidence of Captain
24 INQ2033, the battalion's signal's officer and Captain
25 INQ1853, both of whom were in the Gin Palace and INQ2006
1 who said he was manning the secure net about the
2 existence of the BID 150 equipment is also false and
3 must have been known to be so.
4 INQ2033 thought he used the equipment some three or
5 four times to send sitreps although he described that as
6 a guesstimate that was perhaps inaccurate. There was
7 evidence including his own for relevant encryption cards
8 were picked up in Londonderry. INQ1853 gave clear
9 evidence as to its existence and use. There was also
10 evidence as to the existence of the secure net from
11 INQ2090. He was then a lieutenant in the 8th Brigade
12 headquarters and signal squadron and he said he thought
13 there were five of such units in use on Bloody Sunday
14 and had a clear recollection of there being a BID 150
15 system available to brigade on that day.
16 It would also mean 1 Para, having waited impatiently
17 for orders, then went in of their own accord, but no-one
18 apparently said anything on the radio complaining that
19 they had done so. It would lastly mean that a series of
20 subsequent messages recorded by Mr Porter were sent both
21 to and by brigade, recognising or reporting that 1 Para
22 have gone in without anyone at brigade raising any query
23 or any complaint. The Tribunal will wish to consider
24 whether the messages sent by Lieutenant Colonel Steele
25 after 1609 are consistent with him never having given
1 any order to go in at all.
2 May we have on the screen W47. If an order was
3 given the critical question is whether the order was
4 exactly as stated in the logbook, "orders given to
5 1 Para at 1607 hours for one sub-unit of 1 Para to do
6 scoop-up OP through barrier 14. Not to conduct running
7 battle down Rossville Street" or whether the order was
8 in substance to launch the arrest operation, to arrest
9 as many rioters as possible in the area of
10 William Street and Rossville Street with one company to
11 go through barrier 14. The controversy has arisen
12 because the terms of the order appear quite clear in the
13 log which one could expect accurately to record the
14 single most important order of the day.
15 Secondly, the order was preceded by and appears to
16 be directly responsive to serial 343, may we have W127,
17 which provides the message "he would like to deploy one
18 of his sub-units through barrier 14 around the back into
19 the area William Street/Little James Street."
20 In our submissions we set out at some length the
21 evidence both before Lord Widgery and this Tribunal from
22 those principally concerned, General McClellan, Steele,
23 and INQ1900, the deputy assistant adjutant who did not
24 give evidence in 1972, but who said he heard the brigade
25 major communicate the order to the watchkeeper, INQ901,
1 that the orders for the scoop-up operation had been
2 given and saw him making a scooping movement with his
3 hands which he demonstrated when giving evidence before
4 the Tribunal. The resolution of this question depends
5 on firstly the view that the Tribunal takes of the
6 evidence of those individuals, particularly
7 Brigadier McClellan, and the significance that the
8 Tribunal attaches to what appears in the documents.
9 Thirdly, as to whether or not it would make any sense to
10 send only one company in.
11 The message presently on the screen that
12 Colonel Wilford would like to deploy one of his
13 sub-units through barrier 14 is ambiguous. It could
14 mean he is only asking for authority to move one
15 sub-unit or he is simply telling brigade he has it in
16 mind to deploy one of his sub-units, note the plural,
17 through barrier 14, without meaning that is the only
18 sub-unit he is to deploy. May we have on the screen
19 W90. As the Tribunal knows, there is a puzzling entry
20 in the 1 Para log at 1610:
21 "Move three now through K14. Also call sign one, no
22 running battles."
23 It is possible call sign 1 could be a mistake for
24 call sign 5 or it could be correct and call sign 5 has
25 been mistakenly submitted. At any rate it refers to two
1 companies. Subsequent messages on the Ulsternet clearly
2 indicate more than one sub-unit has entered the Bogside.
3 As I said, no surprise is expressed by brigade at this
4 message. Although there are passages in
5 Brigadier McClellan's evidence which tend to suggest he
6 may have thought more than one unit had gone in because
7 there had been firing. It is also to be noted, if we
8 may go back to W123, that before 1607, if one looks for
9 instance at serial 286, 22 LAD was being asked to be
10 prepared to lift barriers 12 and 14 and, if we may look
11 at W124 at serial 294, was being asked to be prepared
12 for movement through serials 12, 14 and 16, which would
13 appear to indicate to brigade that movement from more
14 than one barrier was contemplated.
15 The Tribunal will also need to take into account
16 what is best summarised by what appears, may we have the
17 transcript of this Inquiry, Day 265,
18 page 51.Brigadier McClellan In my last questioning of
19 Brigadier McClellan, I began in effect by saying this:
20 "The first question I would like to ask, is this: do
21 you or do you not accept that the likelihood is that the
22 order was as stated in the logbook two minutes after it
23 was given, that is to say for one sub-unit to go through
24 barrier 14 and not to conduct a running battle down
25 Rossville Street?
1 "Answer: The question being: do I accept that?
2 "Question: Do you accept the likelihood that that
3 was the very order that you gave?
4 "Answer: I think that was the order that the
5 Brigade Major gave.
6 "Question: It would follow from that, would it not,
7 that that order was in fact disobeyed in two ways:
8 firstly, more than one sub-unit went through into the
9 Bogside; that is right, is it not?
10 "Answer: Yes."
11 That passage which appears clear in terms is,
12 however, only the beginning of a lengthy series of
13 questions which we have set out in full in an appendix
14 to our submissions and which needs to be read as
15 a whole. Indeed, the Tribunal is invited to re-read the
16 whole of my concluding examination of
17 Brigadier McClellan, but the gist of which appears to be
18 that Brigadier McClellan would not have regarded it as
19 inconsistent with his order if troops had come through
20 barrier 12 as one end of the pincer movement to catch
21 rioters who were being assailed by troops who had come
22 up from barrier 14 to Aggro Corner in accordance with
23 his order. This would indeed be a scoop-up operation.
24 The same passage indicates he did regard it as a breach
25 of his order, that the troops went as far as they did
1 down towards the flats. Brigadier McClellan The
2 Tribunal will have to decide whether or not, faced by
3 the points that I have been putting to him,
4 Brigadier McClellan was driven rightly to confess, as
5 Mr Arthur Harry would have it, the error of his former
6 testimony or whether that which he said at the time was
7 in substance correct, and should be preferred. In doing
8 so it will note the following passage, may we have
9 Day 265, page 48, in which, at line 17 on page 48,
10 Mr Glasgow said this:
11 "General, sorry I have taken too long let me ask you
12 this: if what was done on Bloody Sunday by 1 Para was
13 a breach of the order you believed you had given when
14 did you first come to the conclusion that your order had
15 been broken, if you did?
16 "Answer: I do not think I did until comparatively
17 recently when we went through it in great detail with
18 Mr Clarke's questioning."
19 The injunction not to conduct a running battle down
20 Rossville Street is ambiguous. It appears to have been
21 differently interpreted, sometimes by the same person at
22 different stages of his evidence. It could amount to
23 going down beyond the Rossville Flats and up to Free
24 Derry Corner. That is how, in 1972, Colonel Wilford and
25 Colonel Steele said that they interpreted it and how, in
1 his written evidence to Lord Widgery,
2 Brigadier McClellan appears to have interpreted it. It
3 could mean a limitation to staying pretty close to
4 William Street as Colonel Steele at one point in his
5 evidence to Lord Saville appears to have agreed and as
6 Brigadier McClellan in his evidence agreed was what is
7 meant, his position being that going down to
8 Rossville Flats was, "obviously in breach of the
9 geographical restriction I had placed on the operation."
10 The Tribunal may think it possible that Brigadier
11 McClellan intended and expected a quick in and out
12 operation with one company coming in from barrier 14 and
13 pinching rioters against barriers 12 and 13 or possibly
14 another company in that area. Secondly, that the
15 wording he used to Lieutenant Colonel Steele and that
16 Lieutenant Colonel Steele used to 1 Para was such as to
17 convey to 1 Para that they could start the operation
18 with one company going through barrier 14 as they had
19 previously requested. That this order signified to
20 1 Para that they could start the operation as they had
21 by then planned it, that is to say to drive-in to what
22 was at that stage an undetermined extent into the
23 Bogside, that the order did not in terms limit 1 Para to
24 using only one or two companies and that the injunction
25 not to conduct a running battle down Rossville Street
1 meant one thing to Brigadier McClellan and another to
2 Colonel Wilford.
3 The Tribunal may also feel that this sort of
4 situation, where the person giving the order means one
5 thing and the recipient another is inherently likely to
6 arise if the operation is to be launched by someone
7 other than the person who planned it, if the giver of
8 the order has not discussed the plan in any detail
9 before the day with those to whom the order has been
10 given, and thirdly he has been told very little about
11 1 Para's developing plans thereafter and the order
12 itself is imprecise.
13 In the event 1 Para went into the Bogside in
14 circumstances that, from a command and control point of
15 view, the Tribunal may have found surprising.
16 Brigadier McClellan had no idea of the detailed plan.
17 He had not known of the plan to go over the church. He
18 was not told of the change of that plan. He thought
19 that the Paras were going in on foot and would have gone
20 through barrier 14 and turned north to trap rioters
21 against barrier 12. He did not know, nor did Colonel
22 Steele, that ten vehicles were going south or that
23 soldiers would go as far south as the Kells Walk wall.
24 A portion of our general submission on Sector 1
25 deals with the reporting of Operation Forecast. The
1 Tribunal might take the view that the reporting of
2 events was far from satisfactory. May we have on the
3 screen W129. As the Tribunal will recall, at serial
4 383, 1 Para reported "Our call sign Bravo 3 has moved
5 through barrier 14 to the junction Rossville
6 Street/William Street. Our call sign Bravo 5 has moved
7 down south to the area of William Street."
8 Then a little later "Our call sign Bravo 3 has moved
9 south down Strand Road into William Street past barrier
10 14 and is at the junction of Rossville Street/William
11 Street. Our call sign Bravo 59 has moved down south
12 through the church to the area of William Street,
13 directly south of the church."
14 Although the Lawton team dispute this, it seems
15 clear this message was sent after the Pigs had gone
16 through the barrier and the information appears to be
17 simply wrong, since they had not moved through the
18 church to the area of William Street directly south of
19 it. As I have indicated already, brigade was given very
20 little idea of what was going on. It is right, however,
21 to point out that the principal shooting may have lasted
22 for as little as six minutes, from 1612 to 1618,
23 according to Brigadier McClellan's draft statement for
24 Lord Widgery at paragraph 34 and, to the extent that
25 1 Para was met with fire, it can scarcely be criticised
1 for being uninformative.
2 The 1 Para log itself is sketchy. The timings
3 cannot be relied on, being all at five-minute intervals
4 for several entries for exactly the same time. They
5 were not intended as and are no use as an historical
6 record and there is some evidence that what we have is
7 a typed-up copy of the so-called battle log compiled by
8 the officers and not the signallers' logs into which all
9 communications were entered.
10 The Tribunal will find in the latter half of our
11 general submission a summary of the reporting during the
12 course of the day, according to their respective logs by
13 1 Para, 22 LAD and one RAR. The exercise endeavours to
14 identify the earliest report of an incident, for example
15 from 11th battery of 22 LAD to the LAD operations room
16 and then the subsequent reporting to brigade. This
17 exercise, which is quite complicated and involves tying
18 in a sizeable number of references in different sources
19 indicates there were a series of shots, about 21 in all,
20 directed against the Army which are well and
21 consistently vouched in the log. For example, one shot
22 at the Embassy Ballroom at 1611; two shots at the city
23 walls, 1614; four shots at the Bogside Inn towards the
24 walls about 1617 with two shots returned and a man seen
25 to fall, et cetera.
1 There are two points that arise on this. Firstly,
2 most of the firing at the Army is unaccounted for, with
3 the exception that some of the firing must be
4 attributable to Red Mickey Doherty. The Tribunal simply
5 has no explanation of who the people who fired were.
6 Secondly, the firing by the soldiers is identifiable
7 as that of soldiers AD, Y, X, AC, AA, AB and Z, I put
8 them in that order because that appears to be the order
9 in which they fired.
10 The quality of that record, tying in as it does with
11 the contemporaneous statements of the soldier witnesses
12 to whom it relates, stands in a degree of contrast to
13 the reporting of 1 Para, which is, at least on the
14 material that we have, very limited.
15 So far as reporting in the middle of things is
16 concerned from 1 Para, according to his 1972 evidence,
17 Major Loden heard the shot that hit the church, the
18 shots of A and B or some of them and saw someone being
19 dragged away and recalled it being reported to him by
20 the platoon commander of the Machine-Gun Platoon on the
21 forward radio link that soldiers of that platoon had
22 shot at a nail bomber. For reasons that are not clear,
23 this does not seem to have been reported to battalion,
24 certainly nothing appears about it in the battalion log
25 and a fortiori, was not reported to brigade.
1 Apart from that, so far as I can tell, the
2 references to reporting whilst events were going on is
3 limited in the record that we have, as follows: may we
4 have on the screen B1,621.005, paragraph 39.
5 This is a statement of Corporal 033, who was in
6 Support Company signals detachment. He describes how he
7 sent a contact report " ... saying that we had come
8 under fire. It would have been little more than
9 'contact, wait out'" and the fire that he is talking
10 about was hearing a Thompson machine-gun. From the
11 other end, if we may have C720.3, Sergeant INQ720, in
12 the Gin Palace, records at paragraph 14 that he recalled
13 "one particular report which came into the Gin Palace,
14 sent by Lance Corporal Soldier 033 whose voice he
15 recognised, whose message was "contact, wait, over."
16 If you go to W90, at 1615, there is a reference to
17 "Gunman. Pistol. Returned fire." Thereafter the next
18 message is 1630. So, perhaps because of the exigencies
19 of the situation, we have no, so far as I am aware, no
20 other records of reporting during the critical moments.
21 What we do have, at W132, at serials 441 to 444, is
22 a report, at about 1620 to 1626, which can be summarised
23 in relation to serial 444:
24 "Hello Zero, this is 65. Sitrep boils down to the
25 fact that the two sub-units moved in, got involved in
1 a firefight, the shots appearing to have come from the
2 area of the Rossville Flats."
3 The Tribunal will obviously wish to take into
4 account that message and the previous ones when
5 evaluating the suggestion that there was no fire
6 whatever at the units of 1 Para.
7 It is apparent from what I have been saying that the
8 information that was being given to the Gin Palace and
9 by them to brigade was very limited. It did not even
10 include the fact that there were three bodies, not two
11 that were picked up by the Army from the rubble
12 barricade and not as appeared to be stated from
13 Chamberlain Street. Nor is there reporting of the
14 removal of Michael Kelly's body from the barricade or
15 the shooting of Hugh Gilmore, although it seemed likely
16 both of these were, like the deaths of those at the
17 barricade, visible from the armoured control vehicle.
18 Whether and to what extent this lack of reporting
19 can be explained by the exigencies of the engagement or
20 the need in its aftermath to confine communications to
21 operational matters such as ammunition states and
22 military casualties is in part dependent on what
23 conclusions the Tribunal reaches as to the nature of any
24 engagement there may have been. The Tribunal may think
25 there is force in the suggestion that the paucity of
1 information supplied, either at or shortly after the
2 time of the events in question is surprising. There is
3 in particular a difficulty in accounting for what
4 happened on the part of Major Loden.
5 Obviously no commander can be expected to be aware
6 of everything that goes on and shortly after his command
7 vehicle came to a halt he and his radio operators, on
8 his evidence, began to carry out arrests. But at some
9 stage he was back in his vehicle, in front of which,
10 before it turned into the lee of the flats four people
11 died at or close to the rubble barricade and two not far
12 from there, quite apart from those shot in the car park
13 of the Rossville Flats.
14 Video 48 also shows a large body of men who would
15 seem to be from the Anti-Tank Platoon going round the
16 wall at Kells Walk and moving off towards
17 Glenfada Park North at a time before Major Loden's
18 vehicle had moved. Major Loden is unable to account for
19 any of those deaths, nor does he now recall seeing the
20 movements of that body of men. It is possible that he
21 missed some of those events. It seems a little unlikely
22 that he missed all of them.
23 I turn now, if I may, to the shooting incidents in
24 Sector 1. There can now be no doubt that before the
25 Army moved into the Bogside, two events occurred.
1 Firstly, soldiers A and B had shot from the Abbey taxi
2 building, between them wounding Damien Donaghy and
3 John Johnston. Secondly, OIRA 1 had fired from
4 Columbcille Court, a shot that may have been the one
5 that hit the drainpipe of the church and after he had
6 done so, he was involved in some form of altercation as
7 he came down from Columbcille Court. In addition, there
8 is military evidence of firing at soldiers at or near
9 barriers 12 and 13 and civilian evidence of other firing
10 and of men seen with weapons.
11 The Tribunal will wish to consider, firstly whether
12 the shot that OIRA 1 fired was the shot that hit the
13 drainpipe of the church. Secondly, and in any event how
14 it came about that he was in a position to fire a shot
15 from Columbcille Court, how did the weapon come to be
16 there and why did he on his account go there to collect
17 it in the afternoon of 30th January.
18 Thirdly, it will want to consider whether, as OIRA 1
19 and OIRA 2 contend, OIRA 1 only fired his shot after
20 Damien Donaghy had been wounded and at the soldier whom
21 he thought to be responsible or alternatively whether
22 OIRA 1 fired before A or B fired.
23 Next it will consider what effect if any did the
24 firing of this shot have on events. Lastly, what
25 happened to OIRA 1 and OIRA 2 and to the weapon after
1 OIRA 1 had fired.
2 As to whether the drainpipe shot and OIRA 1 shot are
3 the same, a number of factors singularly and perhaps
4 even more so in combination, suggest that they are, but
5 in some cases there is a countervailing consideration.
6 Firstly, there is no evidence from the Army that there
7 was more than one shot that hit the church or anywhere
8 in the environ of the church. Secondly, it seems from
9 the photograph that the east side of the church could be
10 struck by a bullet fired from the place where OIRA 1 was
11 in Columbcille Court and also could be fired from the
12 Rossville Flats, in the same direction. Thirdly, OIRA 2
13 said that he believed OIRA 1's shot was possibly the one
14 that hit the side of the church. But OIRA 1's evidence
15 was that he was aiming at the line of buildings to the
16 west of the church which includes the Abbey Taxis
17 building and that he was not aware of hitting the
18 drainpipe. When he gave oral evidence he conceded the
19 possibility that his shot could have hit the drainpipe
20 but he confirmed his target was soldiers on the
21 left-hand side of the church as he looked at it.
22 Fourthly, although several of the soldiers thought
23 that the drainpipe shots came from the Rossville Flats,
24 or at any rate from that direction, the corner of
25 Columbcille Court where OIRA 1 was and the
1 Rossville Flats are not far apart. It might seem
2 unlikely that it would have been possible to distinguish
3 with any accuracy whether the shot came from the one or
4 the other.
5 As to the sequence in which the drainpipe shot and
6 the A and B shots were fired, there was a very large
7 amount of military evidence that the drainpipe shot was
8 fired, but very little evidence in volume as to whether
9 it was fired before or after the shots from A and B that
10 wounded Damien Donaghy and John Johnston. In
11 particular, there is no contemporaneous report of the
12 shot in any of the Army logs or any of the transcripts
13 of radio messages. Secondly, very few soldiers claim to
14 have heard both sets of shots. Those soldiers who say
15 they heard both sets of firing, Major Loden, Captain 200
16 and Soldier A, say, and in the former two cases with
17 some vigour, and they said so in 1972 that the drainpipe
18 shot came first. That evidence is cited by the Lawton
19 and Aitken teams in their submissions.
20 The evidence of Soldier A to this Tribunal was that
21 he either heard or was told of a shot or possibly two
22 shots before he moved off to the derelict building.
23 That evidence the Tribunal may think must be treated
24 with some caution because his recollection was over
25 30 years later. He made no reference to an earlier shot
1 in 1972 and that timing would put the shot at something
2 like 1540. Sir, I wonder whether that might be
3 a convenient moment.
4 LORD SAVILLE: Yes, we will start again at 12.50, please.
5 (12.05 pm)
6 (The Short Adjournment)
7 (12.50 pm)
8 MR CLARKE: I was coming to the civilian evidence in
9 relation to the drainpipe shot. There does not appear
10 to be any civilian who recalls hearing both the shots of
11 A and B and the civilian fire, with the possible
12 exception of Frank Hone, the relevant passage of whose
13 NICRA statement, about which he has now no recollection,
14 is cited at the Lawton team's submissions C6, 140, which
15 may indicate that the drainpipe shot followed those of
16 Soldiers A and B.
17 The Lawton team cite, at chapter C, G123, evidence
18 of a number of witnesses, of an early single isolated
19 shot, described by most of them as coming southwards
20 from a soldier on the north side of William Street which
21 caused no reaction amongst the crowd and, therefore, it
22 is suggested, could not be a shot that injured either
23 Donaghy or Johnston.
24 The Aitken team at chapter 6, paragraphs 108 and
25 following, cite further passages from evidence which
1 they suggest indicates that the drainpipe shot came
2 first. The reliance is also placed by them on the fact
3 that although there are a number of witnesses who saw or
4 heard Damien Donaghy and John Johnston shot or the
5 immediate aftermath of that, these witnesses do not
6 speak of a shot being fired in retaliation shortly
7 afterwards.
8 PIRA 1 gave evidence of the altercation that
9 occurred between OIRA 1 and OIRA 2 and Provisionals
10 after OIRA 1 had fired. His recollection was that
11 OIRA 1 defended his decision to fire by saying that the
12 Army had already shot two people. Evidence that OIRA 1
13 had fired after the Army is also provided by OIRA 7, who
14 claimed to have heard two men had been shot and then to
15 have heard a rifle shot fired from somewhere near him as
16 he stood in Columbcille Court. He said he had not heard
17 any shots before that rifle shot. His evidence was that
18 he went to a stairwell which he identified as being
19 halfway down the eastern side of the eastern-most
20 building of Columbcille Court in his statement, but
21 which in oral evidence he thought could have been at the
22 northern end of the building and witnessed an
23 altercation between OIRA 1 and OIRA 2, one armed with
24 a rifle, and a crowd.
25 The Tribunal will want to consider the submissions
1 made by the Lawton team at chapter 6G 112-118 by
2 reference to the evidence of OIRA 1, which suggests,
3 they submit, that he must have arrived at the second
4 floor of Columbcille Court when the front of the march
5 was in William Street and before Donaghy and Johnston
6 were shot. In that case, they say, he would have been
7 able to see the rioting, the two being shot and tended
8 to and being carried to Mrs Shiels's house. The
9 submission is that OIRA 1 did not, on his own evidence
10 see any of these because, they suggest, he had already
11 fired his shot before then.
12 I want to say something about the defence and
13 retaliation policy. If the OIRA policy had been that no
14 shot should be fired, except at a soldier who had fired
15 at a civilian, that policy might have lent support to
16 a conclusion that the drainpipe shot followed the firing
17 at Damien Donaghy, but the evidence shows that OIRA's
18 so-called defence and retaliation policy would "justify"
19 the shooting of British soldiers on the streets of Derry
20 just because they were there. See for instance the
21 passage from OIRA 2's evidence cited at 6G10 of the
22 Lawton team final submissions:
23 "Attacks on members of the British Armed Forces
24 could clearly be seen as part of a defence and
25 retaliation strategy just because of the very fact that
1 they happened to be present, although there was some
2 evidence that there was some form of revised form of
3 standing order on Bloody Sunday whereby Officials should
4 only open fire on the Army if they were shot at first,
5 if the Army had shot at other civilians and in any case
6 never to open fire in a crowd situation."
7 As to how OIRA 1 came to fire, the Tribunal is faced
8 with a stark conflict of evidence as to how it came
9 about that OIRA 1 fired, as he accepts that he did,
10 a shot from the wooden slats around the washing area at
11 the northeast area of Columbcille Court. He identified
12 the spot as being at third floor level, at the top of
13 the steps at the northeast corner of Columbcille Court
14 between the wooden horizontal planks that can be seen in
15 the various photographs.
16 The account given by OIRA 1 and OIRA 2 is to the
17 effect that they went to Columbcille Court in order to
18 retrieve a 303 rifle with a defective sight which they
19 previously sought to recover on Saturday, 29th. OIRA 1
20 retrieved it from a dump on the ground floor, then went
21 up to the top floor from which the shot was fired. The
22 gun was then placed back in the boot of the car.
23 The document known as PIN437 -- perhaps we could
24 have on the screen, AOIRA 1.1 -- contains a radically
25 different account to the effect that OIRA 1 and OIRA 2
1 had organised a counter-sniping position behind the
2 white planks in advance. When they learnt that two boys
3 had been shot by the Army in William Street, they
4 collected the .303 from the car in Glenfada Park.
5 OIRA 1 fired at a soldier next to the Presbyterian
6 Church from Columbcille Court, at the third time that
7 the soldier put his head up. OIRA 2 told him he had hit
8 the soldiers.
9 When they were coming down the stairway afterwards,
10 there was an altercation with PIRAS 1 to 3 in which
11 PIRA 1 tried to grab the gun. OIRA 1 stuck it in his
12 stomach and threatened to shoot him and then agreed that
13 he would not fire again and was allowed to leave in
14 peace and the rifle was returned to the boot of the car
15 in Glenfada Park North.
16 OIRA 1 has denied this incident ever happened in
17 anything like the manner described. He said there was a
18 mixed and confused reaction when he came down after
19 firing, some people wanting them to continue to fire,
20 some wanting them to get away because the Army might
21 pinpoint the area and some horrified they fired in the
22 first place.
23 He says he never spoke to Mr Barry or Mr Kemp of the
24 Sunday Telegraph. The Aitken team submit this account
25 firstly was indeed given to Mr Barry and is broadly
1 correct, save it falsely asserts the shooting took place
2 after Damien Donaghy had been shot. The Tribunal will
3 obviously wish to consider the possibility that it was
4 wholly correct.
5 In deciding where the truth lies, the Tribunal will
6 no doubt take into account firstly whatever view it has
7 as to the credibility of Mr Barry, who is the author --
8 his initials appear in the top right-hand corner of
9 PIN437 -- AOIRA 1.1.
10 Secondly, the likelihood of Mr Barry, or indeed
11 anybody else, faking the account in PIN437, or of
12 Mr Kemp faking the account that appeared in the
13 Sunday Telegraph, and of both of them getting the
14 location from which OIRA 1 fired correct although,
15 according to his evidence, OIRA 1 had never spoken to
16 either journalist.
17 Thirdly, the similarity of the two accounts, and the
18 likelihood of two journalists from different newspapers
19 fabricating either collusively or independently
20 a similar story.
21 Fourthly, the fact that OIRA 1 refers to the car in
22 which the rifle was put as being possibly a green
23 Avenger, which ties in with the evidence of Anthony
24 Martin to the Sunday Times, to the effect that he met
25 a man who said there were two rifles in a green Avenger
1 in Glenfada Park and that he wanted help to get them.
2 OIRA 7 thought that he might have been that man.
3 Fifthly, the fact that the altercation between
4 PIRA 1 and OIRA 1 was largely accepted to be true by
5 PIRA 1, although repudiated by OIRA 1. Sixthly, the
6 fact that Reg Tester, in March 1972, gave to Peter
7 Pringle and Philip Jacobsen an account of the firing by
8 OIRA 1, which was essentially similar to that which
9 appears in PIN437 and may be found in their drafts, S34
10 to 35.
11 Seventhly, whatever view it has to the credibility
12 of OIRA 1 and OIRA 2 and of the account they gave as to
13 their movements and actions.
14 Eighthly, the view that he takes of the Lawton team
15 submissions, reduced to the barest essentials those are
16 that it is implausible that OIRA 1 and 2 should have
17 failed in breach of orders to collect the rifle on the
18 evening before or the morning of the march, when fewer
19 soldiers were in the area and chosen instead to remove
20 a defective weapon from a safe dump in daylight at
21 a time when there were a lot of soldiers in the city.
22 Secondly, the explanations given as to whether and
23 why it was necessary to remove the weapon were
24 inconsistent.
25 Thirdly, a weapon would not be left with ammunition
1 unless it was intended to be used quickly from the place
2 where it was stored.
3 Fourthly, there is no reliable evidence that the
4 weapon was defective.
5 Fifthly, OIRA 1 must have been chosen because he was
6 a good shot.
7 Sixth, that there was no reason for going to the top
8 except to snipe at the army.
9 Seventh, the failure to dismantle the weapon
10 immediately shows it was always intended to be fired.
11 Those are to be contrasted with the OIRA 1
12 submissions, which, in brief summary, were: there is no
13 compelling evidence that suggest that OIRA 1 and 2
14 should have departed from the command staffs' plans not
15 to take any action and the Tribunal should therefore
16 accept that they were in Columbcille Court to recover
17 a weapon.
18 Secondly, the claim that AOIRA 1 and 2 were unable
19 to recover the weapon on Saturday evening is
20 corroborated by the shooting of two individuals, taken
21 to be Peter Robson and Peter McLaughlin on that Saturday
22 evening.
23 The submission would appear to be factually
24 incorrect. Peter McLaughlin placed the time of the
25 shooting at lunchtime and Peter Robson placed it between
1 3.00 and 4.00. The transcript of the Army log at W19
2 records two shots being fired at a bomber in
3 William Street at 1552 hours.
4 Next, that OIRA 1's recollection of the site being
5 damaged is more likely to be reliable, since he handled
6 the weapon, than that of Reg Tester, who could not
7 recall the rifle being defective.
8 Fourthly, the Columbcille Court landing was
9 unsuitable as a sniping position and so not one that
10 would have been chosen for the planned attack.
11 Lastly, the factual inaccuracies within 437, such as
12 the allegation that OIRA 1 was related to Michael Kelly,
13 indicate that the document reflects material obtained
14 from a number of different sources.
15 Turn now to the shooting of Damien Donaghy and John
16 Johnston. It is theoretically possible that these two
17 were shot by soldiers other than Soldier A and Soldier
18 B, but the Tribunal may think it overwhelmingly probable
19 that none or both of these two were responsible for
20 their injuries.
21 The issues that arise from this shooting include the
22 following: firstly, when did the shooting take place and
23 what was the position of the march at the time?
24 Secondly, to what extent had the soldiers of the
25 Machine-Gun Platoon been subject to stone-throwing or
1 worse? In particular, had someone thrown a nail bomb or
2 bombs or fired at them before the two were shot?
3 Thirdly, when they fired, did A and B believe that
4 they were under threat from a nail bomber?
5 Fourthly, were they in fact under such a threat and
6 if so, did it emanate from either Damien Donaghy or
7 John Johnston?
8 Fifthly, if they were under the mistaken belief that
9 they were under threat, were there any reasonable
10 grounds for it?
11 Sixthly, what were Damien Donaghy and John Johnston
12 doing before they were shot?
13 Sixthly(sic) was Damien Donaghy or John Johnston the
14 intended target of A or B?
15 Lastly, was there another victim in addition to the
16 two of them?
17 Damien Donaghy was shot in the front right thigh.
18 John Johnston was shot in the lateral aspect of the
19 right thigh or the right leg near the hip, as he put it,
20 and the left shoulder, although a medical report wrongly
21 says the right, and the back of his right hand. There
22 is, however, evidence from Dr McClean that the wound on
23 his thigh was to the inner aspect.
24 The Shepherd and O'Callaghan conclusion is that the
25 bullet or bullets that struck Mr Johnston may have been
1 fragmented before impact.
2 In his oral testimony, Mr O'Callaghan gave his
3 opinion that such fragmentation would be caused by
4 hitting a hard surface at an angle of more than
5 20 degrees and would become more likely if the surface
6 was rough. It would seem in the light of that evidence
7 Mr Johnston may well have been struck in several places
8 by flying fragments of a bullet or bullets that had
9 already struck a hard surface beforehand.
10 The gist of Damien Donaghy's evidence to this
11 Tribunal was that contrary to what he had previously and
12 untruthfully said in his written statement to the
13 Tribunal and to others before them, he was one of a
14 group of boys who had been throwing stones and bottles
15 at soldiers at the ground floor of Abbey Taxis, but was
16 not doing so at the time that he was shot.
17 Just before he was shot he took a few steps towards
18 a rubber bullet, one of two fired, that had ricocheted
19 off the wall not far from where he was at the northeast
20 end of the laundry wasteground, and which he intended to
21 take as a souvenir. He took about three steps towards
22 the bullet when he was shot in the right leg. Whilst on
23 the ground he heard two gunshots, possibly about 10 to
24 20 seconds apart and was then carried to the Shiels'
25 house in Columbcille Court.
1 The Tribunal may think it clear neither Damien
2 Donaghy nor John Johnston was engaged in throwing a nail
3 bomb. As to Damien Donaghy it has not been suggested
4 that he was and the description given of the nail bomber
5 by Soldier A does not resemble him. He also gave
6 evidence that his clothes be taken for examination and
7 nothing came of it.
8 As to Mr John Johnston, Lord Widgery, who heard him
9 give evidence, was satisfied that he was telling the
10 truth as he saw it when he said that stones were being
11 thrown but no firearms or bombs were being used against
12 the soldiers. It is inherently implausible that he
13 should have been engaged in unlawful activity and no-one
14 has ever suggested that he was.
15 There is a body of evidence set out at length in
16 Madden & Finucane's final submissions from chapter
17 16.5.4 onwards, some of which comes from persons of
18 particular responsibility. Patrick Carlin, for
19 instance, was an executive officer with the Customs,
20 Charles Mehan was a former RUC officer, Patrick O'Meenan
21 and Peter Mullan were teachers.
22 That evidence, reduced to the barest essentials,
23 gives the following account: youths had been throwing
24 stones at the soldiers in Abbey Taxis. The soldiers had
25 replied with rubber bullets. Before Damien Donaghy was
1 shot there was a salvo of rubber bullets and a bullet or
2 bullets ricocheted off a wall and Damien Donaghy tried
3 to retrieve one. He was then shot in the leg. When he
4 was on the laundry wasteground, either just to the south
5 of the pavement or up to a third of a way down towards
6 the south of the ground, the evidence differing as to
7 whether he was at the Nook Bar gable end in the middle
8 of the wasteground or towards the east.
9 Shortly afterwards, John Johnston was shot. He was
10 further south than Damien Donaghy. No nail bombs were
11 thrown or exploded. If they had been thrown and
12 exploded, the explosions would have been heard and
13 recognised as such. The only bangs were the sound of
14 rubber bullets. No shot was heard to precede the
15 shooting of Damien Donaghy and John Johnston.
16 As I say, the evidence differs as to where Damien
17 Donaghy was shot and it will be for the Tribunal to
18 decide. In our submission, we considered at length all
19 the civilian evidence in relation to Damien Donaghy's
20 movement and submit the most compelling civilian
21 evidence is that it was at the northwest corner that he
22 fell.
23 By way only of example -- there are a number of
24 other witnesses to the same effect -- Patrick O'Meenan,
25 whom the Tribunal may think was an impressive witness,
1 put him at the northeast gable wall of the Nook Bar at
2 the west end of the wasteground, which is the spot to
3 which A and B said that they fired and appears also to
4 be consistent with what Damien Donaghy is recorded as
5 telling the Sunday Times in 1972.
6 Exact timing of the incident is impossible, but
7 there is a body of evidence which suggests that the
8 shooting took place between 1550 and 1600. That is to
9 say, at a time consistent with the approximate timing of
10 1555 given by Major Loden in his Diary of Operations.
11 If that timing is correct, the likelihood is that
12 the majority of the march had passed the laundry
13 wasteground. But there was, according to a substantial
14 body of evidence, a considerable number of people
15 present in the vicinity of the wasteground, perhaps in
16 the hundreds, and at least 50 were close enough to have
17 seen on or other or both of the two men fall.
18 I turn to the question of what rioting there was
19 before the two were shot. There is a body of civilian
20 as well as military evidence that there was rioting in
21 the form of throwing of stones and the like directed
22 towards soldiers at the GPO sorting office, the
23 Presbyterian Church and Abbey Taxis. The inquiry has
24 had evidence from some six witnesses, including Damien
25 Donaghy himself, who stated that they themselves took
1 part in stone-throwing specifically towards the soldiers
2 in Abbey Taxis.
3 The Tribunal also have evidence from about 35 or so
4 others who appear to have seen some level of disorder.
5 It seems from this body of evidence the situation of
6 those who were rioting was fluid, with stone throwers
7 moving towards Abbey Taxis and along and across
8 William Street and going back to the wasteground to the
9 south.
10 The evidence to the size and extent of the rioting
11 is not wholly easy to interpret, because there was
12 rioting directed towards Abbey Taxis and to a soldier or
13 soldiers on the GPO roof and to soldiers near the
14 church.
15 Father McIvor gave a figure of about 50 throwing
16 stones towards the GPO, others give lesser estimates and
17 the number rioting specifically towards Abbey Taxis
18 would probably have been less than the number of rioters
19 as a whole. The civilian evidence of stone throwing
20 directed there ranges from between four and 15.
21 Soldier A put the number of those stoning at Abbey
22 Taxis as between 20 and 30. Soldier B spoke of a crowd
23 of about 50. Some of that civilian evidence confirms
24 that what soldiers in Abbey Taxis would have seen was
25 objects, such as bits of stone or concrete or small
1 pieces of building material going from the soldiers'
2 right to their left.
3 There is also a body of evidence from rioters or
4 those who witnessed rioting that some of the rioting
5 directed towards the soldiers in Abbey Taxis was going
6 on and live shots were fired. There is also evidence,
7 both from A and B and from civilians, that shortly
8 before the first live shots there was a sudden salvo of
9 rubber bullets, although Major Loden's Diary of
10 Operations only records the firing of four rubber
11 bullets by the Machine-Gun Platoon.
12 A central issue in this sector may be defined by
13 reference to the submissions of the interested parties.
14 M and F contend the soldiers of the Machine-Gun Platoon
15 were not subject to any attack by way of gunfire or nail
16 bombs but nothing done by anyone, posed or could be
17 thought to have posed a threat to those soldiers that
18 would justify shooting, that neither A nor B believed
19 they were subject to any such threat, either from Damien
20 Donaghy or Johnston, or anyone in their vicinity, and A
21 and/or B fired without any belief that either of the
22 two, or indeed anybody else, posed a threat which would
23 justify them. They then hit Damien Donaghy and
24 John Johnston but nobody else.
25 Soldiers A and B say, or have said in essence that
1 they fired at and believed that they hit a man who was
2 about to light a nail bomb after two such devices had,
3 as they thought, already been thrown.
4 The Tribunal will want to consider whether this
5 account is so definite there is no room for concluding
6 that Damien Donaghy or someone close to him was doing
7 something which A and B mistakenly could genuinely
8 believe was a threat.
9 Both soldiers A and B gave evidence to this Inquiry,
10 but Soldier B had, for reasons which may be connected
11 with surgery he had had, no useful recollection of the
12 events. Both he and A resisted the suggestion they had
13 fired in panic to keep people who were throwing what
14 might be nail bombs back. There are, the Tribunal may
15 think, only a limited number of possibilities as to what
16 occurred.
17 They include the proposition that A and B fired
18 without any justification and then made up a story about
19 a nail bomber. It was put to A and denied by him that
20 he and/or B shot Damien Donaghy and John Johnston:
21 "... quite literally because you refused to allow
22 yourself to be categorised as an Aunt Sally or a crap
23 hat."
24 McCartney and Casey submit, although they did not
25 suggest as much to A:
1 "The only rational explanation is that the shots
2 were designed to provoke a response from the IRA and
3 thereby to reinforce the justification for subsequent
4 aggressive action."
5 The second possibility is there was a nail bomber
6 whom A and B shot at but who was not Damien Donaghy or
7 John Johnston.
8 The third possibility is that A and B shot at
9 someone who may or may not have been Damien Donaghy, who
10 they mistakenly, but wrongly, believed to be a nail
11 bomber.
12 Lastly, A and B shot at someone who may or may not
13 have been Damien Donaghy, who appeared to be about to
14 throw something which might or might not have been
15 a nail bomb, after stones had already landed within the
16 building, and they were not going to take a chance.
17 There is a limit to what I can usefully say on the
18 issues at this point. There is an irreconcilable
19 divergence between the evidence of A and B and the
20 civilian evidence. The resolution of the issues to the
21 extent that that can be done must to a considerable
22 extent depend on the Tribunal's assessment of the
23 testimony of the witnesses. The significance of any of
24 what people did not see or hear and the inherent
25 probabilities.
1 The Tribunal has received detailed submissions from
2 all concerned, which include, and our submissions add to
3 this corpus, an analysis of what can be gathered from
4 the evidence the Tribunal has heard or read over
5 30 years after the event from other members of the
6 platoon who were not called to give evidence in 1972.
7 The Inquiry has received evidence from all save two
8 of the then members of the platoon. Some of that
9 evidence is unhelpful or plainly wrong. Three of the
10 soldiers said they believed they heard noises that they
11 thought could have been nail bombs. One thought he
12 heard a nail bomb hit the outside of the building after
13 A had fired and one said he heard an explosion which he
14 did not then recognise as a nail bomb but which from
15 later experience he recognised as such.
16 Three recalled some form of warning about a nail
17 bomber being given. One recalled INQ441, the sergeant
18 in charge and A and B shouting amongst themselves and
19 mention of a nail bomb. No-one recalled actually seeing
20 a nail bomb.
21 The evidence of INQ441, who unfortunately was not
22 called before Lord Widgery to this Tribunal, was that he
23 was in no position to give an order to fire at nail
24 bombers as A claimed, because he was outside the
25 building tending to the radio operator, INQ455.
1 There are, however, a few particular matters which,
2 in our submission, it would be helpful to draw
3 attention.
4 Firstly, the Tribunal might find it hard to credit
5 that two nail bombs were thrown and yet all of the
6 substantial number of witnesses in the area either never
7 heard them, never recognised what they were, or have
8 lied about their existence or had forgotten them.
9 Secondly, the 1972 evidence of the existence of nail
10 bombs seems to be confined to A and B, but that is
11 because statements appear to have been taken from them
12 and only one other member of the Machine-Gun Platoon and
13 then on a different point. None was taken from INQ441,
14 the sergeant in command. He did indeed tell the This
15 Week programme that his platoon had had nail bombs
16 thrown at them, but his evidence to this Inquiry was
17 that this was derived from what A and B had told him,
18 and not personal knowledge.
19 Next, there is some civilian evidence that
20 Damien Donaghy was among a group of youths who were
21 looking around the corner of the Nook Bar, or using it
22 at cover.
23 One witness, Monica McDaid, was recorded by
24 Eversheds, she says wrongly, as saying that the boy was
25 shot as he was chasing a rubber bullet kept looking out
1 into William Street by putting his head round the
2 corner.
3 Next, there is also some civilian evidence Damien
4 Donaghy had been throwing stones shortly before he was
5 shot, or that he was either part of a group bending over
6 to pick up stones when the first shot was fired or ready
7 to throw a stone.
8 The witnesses, however, who claim to have seen
9 Damien Donaghy's hands at the point when he was shot are
10 unanimous that he had nothing in them.
11 There is a body of civilian evidence that Damien
12 Donaghy was facing north or northwest when he was shot,
13 which would be consistent with the medical evidence that
14 the bullet entered the front of his leg.
15 There are three civilians witnesses who say they
16 were in very close proximity to him when he was shot.
17 This is perhaps to be compared with his evidence that he
18 was on his own, making his way across the laundry
19 wasteground, but there are others who describe him as
20 slightly apart from those around him.
21 Major Loden's written statement to Lord Widgery
22 records, as I have indicated, that the platoon commander
23 of the Machine-Gun Platoon told him on the radio before
24 1600 that his platoon had shot a nail bomber. If that
25 evidence is accurate, it is apparent that the fact or
1 the alleged fact that A or B or both had shot someone
2 who was said to be a nail bomber was known to the
3 platoon commander at an early stage.
4 Next, there might be an explanation for the
5 surprising fact that the shooting of a nail bomber was
6 not reported to brigade.
7 If it took place, as Major Loden says, some time
8 after 1555, then it is to be noted at 1600, according to
9 his diary, Major Loden received a warning order to
10 deploy through barrier 12. If he was to communicate on
11 the battalion net, his evidence was that he had to shout
12 down from his observation post to the west of the church
13 into the courtyard below.
14 This appeared to be the only place from which
15 communication with the battalion was possible. If
16 Major Loden was faced, within minutes of the drainpipe
17 shot and the shooting of A and B having taken place,
18 with the need to redeploy his company, including
19 presumably the signaller in the courtyard, it might not
20 perhaps be wholly surprising if reporting to the
21 Gin Palace was not at the forefront of his mind.
22 Next, a significant feature of the evidence is that
23 A and B were firing in the same direction at a single
24 target who, after they had shot, was dragged away. It
25 would be understandable for them not to have spotted
1 they had hit John Johnston. He was a little way behind
2 Damien Donaghy and to the south. Initially he did not
3 realise he had been shot himself and was able to start
4 to hobble away.
5 In their reply submissions at R678 the Lawton team
6 point out there were a number of civilian witnesses saw
7 Damien Donaghy but did not see John Johnston shot. But
8 if in addition to shooting Damien Donaghy in the front
9 of the thigh, they also between them shot another
10 unidentified individual who fell to the ground at the
11 corner and was carried away, it would seem difficult to
12 believe neither A nor B, nor either of the several
13 civilians who saw the shooting of Damien Donaghy,
14 noticed or were prepared to say they had noticed, that
15 this had happened.
16 One lastly asks what could have caused A and B to
17 fire if no-one threw a nail bomb. The fact two soldiers
18 in separate positions appeared to fire at the same
19 target or area at the same time and, according to their
20 evidence, without an awareness of the others' shots or
21 intent to shoot, could indicate that they independently
22 shared a belief that they were under attack, because
23 they both had the same perception of what was happening.
24 Equally, it could mean both saw something which
25 might be a nail bomb, and at the holder of which they
1 fired because they were not prepared to take a chance on
2 whether it was or not.
3 I have said little so far about the position of
4 John Johnston. There is much confusing evidence as to
5 where exactly he was when shot. We have expressed in
6 a tabular form in our submissions the various places
7 where witnesses say he was. In those submissions it is
8 suggested that the Tribunal might think it probable that
9 he was shot somewhere in the northeast quadrant of the
10 laundry wasteground where he was in position in line
11 with a bullet or bullets fired from Abbey Taxis in
12 a position from the northwest corner.
13 Secondly, he was shot, as he said in 1972, within
14 seconds of Damien Donaghy being struck, and as he turned
15 to look at the soldiers, and lastly that he was not an
16 intended victim.
17 There is some puzzling evidence of further firing,
18 apparently by soldiers in Sector 1. In particular,
19 evidence of two members of the BBC news crew, Cyril Cave
20 and Jim Deeney, of a shot landing somewhere in the
21 Kells Walk alleyway after they had gone to the Shiels'
22 house at which Damien Donaghy and John Johnston were.
23 We deal with this in our submissions and I do not
24 propose to deal with it further now.
25 I then come, if I may, to Sector 2. In our
1 submissions in relation to this sector, we begin by
2 examining the composition of the Mortar Platoon and the
3 allocation of the 18 members of that platoon deployed on
4 Bloody Sunday to the two APCs under the command of
5 Lieutenant N and Sergeant O.
6 We suggest that an analysis of the evidence leads to
7 the conclusion, more certain in some cases than in
8 others, that the division of the soldiers between the
9 two vehicles was as follows: in the first Pig
10 Lieutenant N, Corporal 162, Lance Corporal V and Lance
11 Corporal INQ768 and Privates Q, S, 13, 19, and INQ1918.
12 In the second Pig, Sergeant O, Corporal P,
13 Private R, Private T, Private U, Private 006, Private
14 017, Private 112, Private INQ1579.
15 In evidence to Lord Widgery's Inquiry, Sergeant O
16 said four men disembarked from his vehicle when it
17 slowed to turn off Rossville Street. Both
18 Madden & Finucane and the Lawton team submit that in
19 fact five men, Corporal P, Private R, Private U, Private
20 006 and Private 017 disembarked from the vehicle at that
21 stage.
22 We suggest that to these a sixth must be added if
23 the evidence of Private U is accepted, that a man with
24 a baton gun, whom he was protecting, jumped out with him
25 and assisted him in effecting an arrest.
1 In our submission that soldier is likely to have
2 been Private 112, who is recorded in the arrest form
3 relating to Charles Canning, as a witness to
4 Mr Canning's arrest by Private U.
5 A critical question for the Tribunal is whether the
6 soldiers came under fire as the vehicles moved in and as
7 the soldiers disembarked from the first vehicle and
8 whether it accepts there was any, and if so what, firing
9 at the soldiers at or very soon after the time of their
10 disembarkation from the first vehicle, bearing in mind
11 in particular the submission of the Lawton team that
12 Privates S and U, Lance Corporal V, Private 19,
13 Corporal 162 and Lance Corporal INQ768 probably all
14 heard the same firing.
15 We next consider the evidence as to the arrests and
16 other incidents that took place on or around the
17 wasteground after the soldiers had begun to disembark
18 from their vehicles. The relevant power of arrest lay
19 under the Special Powers Act, Regulation 11, which
20 empowered a member of Her Majesty's Forces on duty to:
21 "... arrest without warrant any person whom he
22 suspected of acting or of having acted or of being about
23 to act in a manner prejudicial to the preservation of
24 the peace or the maintenance of order."
25 As I have said, if the Londonderry Justices case was
1 correctly decided, the regulation was invalid as the law
2 stood on 30th January and subsequently validated with
3 retrospective effect by enactment of the Northern
4 Ireland Act.
5 Independently of those considerations, in the case
6 of In Re McElduff in 1972 Northern Ireland Report,
7 page 1, it was held that an honest suspicion, even
8 though not reasonable, was enough for the purposes of
9 Regulation 11. But it was also held that for an arrest
10 under that regulation to be valid it was necessary for
11 the arrested person to be informed at the time of his
12 arrest or at the very earliest opportunity thereafter
13 under what power he had been arrested and the general
14 nature of the suspicion leading to his arrest.
15 The brigade operation order for Operation Forecast
16 directed that if arrests were made the words "I arrest
17 you for having committed acts prejudicial to the peace"
18 should be used, which would only have partially
19 satisfied the requirements set out in McElduff since it
20 does not satisfy the power invoked.
21 It is by no means clear that even this inadequate
22 formula was used on the day. For example, CSM Lewis
23 said in evidence that he did not recall that the
24 soldiers were required to give any explanation at all to
25 the person being arrested, but just to grasp him and
1 take him as quickly as possible to the holding area.
2 Many, if not all, of the purported arrests made on
3 Bloody Sunday may have been unlawful on the ground that
4 the McElduff requirements were not observed. We deal in
5 our submissions at considerable length with the evidence
6 of the several arrests that took place in this sector,
7 but I propose not to speak of them now since the
8 submissions will stand for themselves when people read
9 them.
10 I come, then, to the shots fired by Lieutenant N
11 from Eden Place. In his RMP statement, Lieutenant N
12 said when he disembarked from his vehicle, several
13 people ran past throwing stones and bottles. He and two
14 other soldiers, now known to be Private O19 and INQ1918,
15 ran after them towards Chamberlain Street and as they
16 approached the junction of Eden Place and
17 Chamberlain Street, they turned to face him.
18 In all, his evidence was that there was a crowd of
19 about 100 people who began to advance, throwing stones
20 and bottles. In order to disperse them, he fired one
21 round high into the east wall of 14 Chamberlain Street
22 and two rounds high into the north wall of 13
23 Chamberlain Street. These shots caused no injuries and
24 the crowd dispersed.
25 In a further RMP statement he said that he fired his
1 first round into the north wall of 13
2 Chamberlain Street; he thought the weapon had not
3 reloaded itself and so he cocked it again, ejecting what
4 he assumed at the time was an empty case, but appeared
5 from a subsequent ammunition count to have been a live
6 round.
7 He then fired a second round into the north wall of
8 13 Chamberlain Street and, after a short pause, a third
9 round into the east wall of 14 Chamberlain Street.
10 Jeffrey Morris said in his statement to the
11 Widgery Inquiry -- may we have on the screen EP2.4 --
12 that shortly after he had taken the photograph EP2.4,
13 the soldier in the foreground, who is shown standing on
14 the north side of Eden Place where it meets the
15 wasteground, went into a crouching position and fired
16 two rounds up the alley. We suggest there is no reason
17 to doubt the evidence of Mr Morris, that this photograph
18 was taken just before the shots were fired.
19 The photograph shows Private INQ1918 detaining
20 Duncan Clark, which is consistent with Lieutenant N's
21 evidence that after he had fired his shots to disperse
22 the crowd he looked at his signaller and saw him
23 standing by a civilian whom he had detained. It
24 appears, therefore, the shots were fired after Mr Clarke
25 had been apprehended, and before he was taken away to
1 Lieutenant N's vehicle.
2 We invite the Tribunal to consider whether the
3 firing of these shots were permissible under the Yellow
4 Card and we offer some analysis in our submissions as to
5 that issue. As to the factual position the Tribunal
6 will have to decide whether or not it accepts
7 Lieutenant N's evidence about the circumstances in which
8 he opened fire.
9 We review in our submissions the evidence of
10 Lieutenant N and Private 19 and Private INQ1918. In
11 relation to Private 19, we suggest it will be necessary
12 to consider Praxis interview notes. May we have on the
13 screen O29.1. There are a series of notes, of which
14 this is the third. We invite the Tribunal to consider
15 whether or not these three sets of notes relate to O19.
16 In the third set of notes, which is the one presently on
17 the screen, what may be O19 is recorded as saying:
18 "N, he was nervous, in and out of the Pig. We were
19 telling him stories of sorting the IRA out. Bigger
20 price on an officer's head. The officer started firing
21 first.
22 "Question: Are you sure the officer started firing
23 first?
24 "Answer: I was right by him, cases were flying
25 right by my head. Lost it, hadn't he. I ran back to
1 the Pig -- we all did to get out weapons -- get to
2 cover. He must have seen something. Well, you don't
3 hang about when the shooting starts. I did not see
4 anything, no targets. I only heard the officer firing.
5 Didn't see any targets. Didn't do any firing. Didn't
6 fire a bullet. The world collapsed around us.
7 Especially for the officers. Lots of careers ruined
8 that day."
9 If the Tribunal concludes, though Private O19 has
10 denied it, these notes were derived from an interview
11 from him, it may consider that they disclose his true
12 opinion of Lieutenant N's firing was that he had "lost
13 it".
14 Private 19 denied he had used that expression,
15 although he said there had been chitchat after the event
16 to the effect that Lieutenant N had panicked. The
17 criticism of Lieutenant N in the notes appears to be
18 based partly on the fact that the speaker had seen no
19 targets. It could be argued that that criticism may be
20 potentially unfair since the speaker may have overlooked
21 the fact that the shots were not fired at human targets
22 but only as a deterrent.
23 Private 19 was clearly aware of Lieutenant N's
24 purpose in firing the shots, which he explained in his
25 own RMP statement, and if the Tribunal finds that
1 Private O19 nevertheless considered privately that
2 Lieutenant O19 had "lost it", it may consider that his
3 opinion is of some relevance, though in no sense
4 conclusive.
5 May we have on the screen, please, P274. We
6 consider in our submissions the evidence of Gilles
7 Peress, who said in his statement to the Widgery Inquiry
8 that he had taken the photograph which now appears on
9 the screen as he crossed the junction of
10 Chamberlain Street and Eden Place, holding up his camera
11 and saying "press". As he did so, a soldier kneeling at
12 the corner of the buildings on Eden Place, who we
13 suggest must have been Lieutenant N, fired at him from
14 the hip. In his oral evidence, Day 212, he said -- may
15 we have on the screen M65.69 -- the bullet struck at the
16 point he marked on that photograph.
17 Since this corresponds almost exactly with the spot
18 marked by Lieutenant N, the Tribunal may think that it
19 is likely to be accurate and should be preferred to the
20 different descriptions given by Mr Peress in his written
21 statements.
22 If so, the shot was fired above head height and as
23 frightening no doubt it was, there is no reason to
24 suppose that it was aimed at Mr Peress. In his oral
25 evidence to Lord Widgery, Mr Peress effectively accepted
1 this when he was asked how he knew the soldier fired at
2 him and replied:
3 "I was the only one and where I was and where he was
4 and where the bullet is I see no other target. I do not
5 say he shot to kill me, but he took a very fair chance
6 to frighten me."
7 Mr Peress said in his oral evidence to Lord Widgery
8 there were no other people within sight or range of the
9 soldier when he fired. When he gave evidence to this
10 Inquiry he said, consistently with his statement to
11 Lord Widgery, that he took P274 before the soldier fired
12 in his direction. He said that when he came down
13 Chamberlain Street and took the photograph, there was
14 a group of no more of about ten people to his left.
15 It appears from his description that these people
16 were either on Chamberlain Street or the lower part of
17 Harvey Street. He could not remember what, if anything,
18 they were doing. He agreed the photograph might show
19 one or more objects in the air that had been thrown at
20 the soldiers, but said he had no recollection that he
21 could attach to the photograph and recalled nothing
22 specific about the two civilians in the foreground.
23 In their submissions, the Lawton team argue that
24 contrary to Mr Peress's recollection, P274 was probably
25 taken after Lieutenant N had fired his warning shots and
1 the photograph does not discredit Lieutenant N's
2 evidence that he faced towards a hostile crowd advancing
3 towards him. In our submissions we seek to analyse that
4 evidence, the evidence that may assist the Tribunal in
5 determining whether or not that contention is
6 well-founded and invite the Tribunal when it has reached
7 its conclusions as to the circumstances in which
8 Lieutenant N opened fire, to consider whether it was
9 necessary for him to open fire in order to protect
10 himself and his men and whether any actual perceived
11 danger could have been averted by any alternative course
12 of action.
13 We then refer to the passages in the submissions of
14 the interested parties that address the question whether
15 Lieutenant N's shots at Eden Place were the first to be
16 fired after the deployment of his platoon and the theory
17 that they may have prompted other soldiers to open fire.
18 The Lawton team rely upon the evidence of
19 Private O19 that he had heard rifle fire from the
20 direction of the flats before Lieutenant N opened fire.
21 We point out that whether or not the Tribunal accepts
22 that evidence may depend in part upon the view that it
23 forms concerning the Praxis interview notes, since if
24 they are derived of an interview from 019, they imply
25 his real view was that Lieutenant N fired first.
1 We deal also with the case of Alana Burke. The
2 evidence shows that the second Mortar Platoon struck her
3 after she had run into the entrance of the car park to
4 the flats, hitting her on the right side of her back and
5 her right leg. She said this happened -- may we have on
6 the screen, at the spot marked at AB101.9, with an
7 arrow.
8 Miss Burke sustained injuries to her pelvis, right
9 leg and back from which she took six months to recover
10 and which have had continuing serious medical
11 consequences. The driver of the vehicle that hit her
12 was Private INQ1579. The essential question we suggest
13 to the Tribunal is whether Miss Burke was run down
14 deliberately or otherwise, as a result of fault on the
15 part of the driver, or by simple accident.
16 In relation to that we draw attention to her
17 statement and that of the driver and that of Frank
18 Campbell. In her statement on 16th February 1972, she
19 had said this:
20 "I glanced backwards and saw an armoured car coming
21 into the car park. It was going fast and stopped a few
22 yards away from me. Some soldiers got out and I saw one
23 of them strike an elderly man on the face with the butt
24 of his rifle. The soldier got back into the Saracen
25 again and it moved forwards towards me. It struck me on
1 the right side of my back and my right leg."
2 Another statement of hers in 1972 is to similar
3 effect, but does not in terms associate the soldier who
4 struck the elderly man with the vehicle that came into
5 the car park of the flats. Nor does it identify that
6 vehicle with the one that subsequently hit Miss Burke.
7 The possibility that Sergeant O's vehicle hit
8 Miss Burke only after it had already come to a halt and
9 while it was being moved forward again after the
10 incident with the elderly man is not supported elsewhere
11 in the evidence, but we suggest that it deserves at any
12 rate consideration, since it was found in the first
13 statement made by Miss Burke after the event and it
14 enabled the elderly man to be identified, at least
15 tentatively, as William John Doherty.
16 Unless Miss Burke was hit during a second movement
17 of the vehicle, it is difficult to explain how she could
18 have seen a soldier engaged with an elderly man before
19 she herself was hit. It might be thought that her
20 description of the vehicle stopping and soldiers
21 disembarking before it moved forward again related to
22 the stopping of Sergeant O's vehicle on
23 Rossville Street, but both of her contemporaneous
24 statements say clearly that it happened in the car park.
25 We address also the case of Thomas Harkin. It
1 appears Sergeant O's vehicle knocked him to the ground
2 in the car park of the flats. We review the evidence of
3 a number of the witnesses about the incident, including
4 Mr Harkin and his friend James Quinn. We suggest
5 although the evidence is unsatisfactory in certain
6 respects, it is tolerably clear Mr Harkin was knocked
7 over and injured, albeit not very seriously, and that a
8 soldier jumped out of the vehicle and ran towards him.
9 It appears probable the soldier raised his rifle and
10 either delivered a blow intended for Mr Quinn which hit
11 Mr Harkin, or intended to hit Mr Harkin, but was
12 prevented from doing so by Mr Quinn. We suggest that
13 a number of questions arise, on which may in fact be
14 difficult for the Tribunal to reach firm conclusions.
15 Firstly, whether the running-down was deliberate. If
16 not, was it the fault either of the driver or of
17 Mr Harkin himself.
18 Secondly, what was the exact nature of the incident
19 that occurred after the soldier jumped out of the
20 vehicle and towards Mr Harkin.
21 Lastly, was there any justification for the use or
22 attempted use of force against Mr Harkin or Mr Quinn.
23 I turn now to the shooting incidents and observe,
24 with the exception of Alana Burke, who was, of course,
25 not shown, the principal main casualties in Sector two
1 were Jack Duddy, Margaret Deery, Michael Bridge,
2 Michael Bradley and Patrick McDaid.
3 If Dr Shepherd and Mr O'Callaghan are correct in
4 their opinion that Mr McDaid's injury was not caused by
5 a lead bullet, there are four known casualties
6 attributable to gunshot wounds in this sector.
7 On the evidence of the soldiers, they fired 32 shots
8 in Sector 2. There is no evidence that either the three
9 shots fired overhead by Lieutenant N at Eden Place or
10 two shots fired up into Block 1 of the Rossville Flats
11 by Private T caused injury to anyone, with the possible
12 exception of Patrick Brolly whose case I consider later.
13 It is clear that those shots could not have been
14 responsible for any of the principal main casualties who
15 were all at ground floor when they were killed or
16 injured.
17 If those shots are left out of the count, and on the
18 assumption that all of Private S's shots were fired at
19 a single target, we say that 27 shots fired by six
20 soldiers at nine targets fall to be considered as
21 potentially responsible for the casualties in this
22 sector.
23 On the assumption that Sergeant O did not hit his
24 third gunman and Private R did not his gunman but that
25 otherwise the soldiers hit the targets at whom they say
1 that they fired, those shots should have resulted in
2 three nail bombers, three gunmen and one petrol bomber
3 being killed or injured. However, there is no clear
4 match between any of the targets described by the
5 soldiers and any of the known casualties.
6 In relation to each of the alleged engagements, we
7 suggest that the Tribunal will have to consider,
8 firstly, whether the soldiers' account is, either in its
9 entirety or in particular respects, but especially as to
10 the existence and actions of his alleged target, (a)
11 accurate, (b) honest but mistaken, or (c) untruthful.
12 Secondly, whether, despite the absence of a clear
13 match with the target described by the soldier, the
14 shots fired do in fact account for one of the known
15 casualties.
16 Thirdly, and alternatively, whether it is possible
17 either that the shots fired hit some other person whose
18 injury or death on Bloody Sunday has somehow failed to
19 come to light in the intervening years, and despite the
20 efforts of this Inquiry or (b), the shots fired hit
21 nobody, despite the evidence of the soldiers in relation
22 to most of the engagements that they believed they had
23 hit their intended targets.
24 Lastly, whether the firing was permissible under the
25 Yellow Card or justified under common law.
1 We say that in relation to each of the known
2 casualties attributable to gunshot wounds, the Tribunal
3 has to consider whether or not it is satisfied that
4 a soldier fired the relevant shot and if so, (a) whether
5 it is possible to identify the soldier or alternatively
6 to identify a group of soldiers, of whom one must have
7 fired the relevant shot, (b) whether the soldier who
8 fired the relevant shot intended to hit the person who
9 was in fact injured or killed, (c) whether the person
10 who was hit either was or appeared to be posing any and
11 if so, what threat to the soldiers at the time of the
12 shooting, and (d) whether the soldier who fired the
13 relevant shot believed that he was under any threat at
14 the time the shooting that justified him in opening fire
15 and if so, what threat and from who?
16 If a soldier was not responsible, who else may have
17 been? It is to be observed that the Lawton team
18 represents Lieutenant N, Sergeant O, Private Q,
19 Private R, Private S and Corporal V, who are, I think,
20 all the firers in Sector 2, with the exception of T.
21 They have nowhere suggested that any other soldier was
22 responsible for any of the casualties from gunfire in
23 Sector 2. According to their submissions, firstly, it
24 is impossible to determine who shot Michael Bradley and
25 not certain, though more likely than not, that a soldier
1 did so.
2 Secondly, it is impossible to determine who shot
3 Michael Bridge, but it is accepted that a soldier did
4 so.
5 Thirdly, it is impossible to determine who shot
6 Margaret Deery and not even possible reasonably to
7 conclude that a soldier did so.
8 Fourthly, it is impossible to determine who shot
9 Jack Duddy, but it is accepted that a soldier did.
10 Fifthly, they submit Lieutenant N did not shoot
11 Michael Bridge or Margaret Deery.
12 Sixthly, Sergeant O did not shoot any of the known
13 casualties.
14 Seventhly, Private Q did not shoot any of the known
15 casualties.
16 Eighthly, Private R did not shoot Jack Duddy.
17 Ninthly, it is very unlikely that Private S shot any
18 of the known casualties.
19 Tenthly, Lance Corporal V did not shoot Jack Duddy
20 or Margaret Deery.
21 We invite you to consider the implications of these
22 submissions. It is accepted that a soldier shot
23 Mr Duddy, but the Lawton team invites the Tribunal to
24 conclude that neither Sergeant O, nor Private Q, nor
25 Private R, nor Lance Corporal V was responsible and that
1 Private S is very unlikely to have been responsible.
2 One wonders, then, whether the Tribunal is to
3 conclude by a process of elimination that Lieutenant N
4 shot Mr Duddy, or that another soldier did so and has
5 failed to admit that he opened fire.
6 The question also arises as to whether a similar
7 process of elimination leads to the conclusion that
8 either Private R or Lance Corporal V must have shot
9 Mr Bridge.
10 If the Tribunal are satisfied that Mrs Deery and Mr
11 Bradley were also injured by Army gunfire the
12 difficulties become more acute, given that the Lawton
13 team seeks to exclude at least Lieutenant N, Sergeant O,
14 Private Q, Private S and Lance Corporal V as candidates
15 for the shooting of Mrs Deery and at least Sergeant O,
16 Private Q and Private S as candidates for the shooting
17 of Mr Bradley.
18 We make some comments in our submissions about the
19 sequence in which the casualties occur, to which I do
20 not propose to make further reference now. We deal with
21 the shooting of Jack Duddy. We note that according to
22 Dr Shepherd and Mr O'Callaghan's report, the bullet that
23 killed him entered the outer side of the right shoulder
24 on a track from right to left and probably slightly
25 backwards but was deflected first by the scapula and
1 then by the spine, before leaving the body through the
2 left upper chest.
3 We reviewed the evidence as to where he fell and
4 invite the Tribunal to conclude that he fell forwards on
5 to his face as he ran in a generally southerly direction
6 across the car park, probably somewhere around the
7 centre of the row of seven parking bays closest to Block
8 1 of the flats, and that his body was then dragged
9 a short distance further on, and turned over so as to
10 arrive in the position we see in the photograph EP25.6.
11 We discuss in our submissions the evidence as to the
12 state of the crowd at the time that he was shot, which
13 may have a bearing on the Tribunal's conclusions as to
14 whether anyone in his vicinity may have posed or appear
15 to pose a threat to the soldiers and as to whether
16 Mr Duddy may have been hit by a bullet fired at someone
17 else and as to whether the person who shot, hit Mr
18 Duddy, may have failed to see that he had done so.
19 We also refer to evidence as to the relationship in
20 time between the shooting of Mr Duddy and the arrest of
21 William John Doherty and submit that whilst there are
22 inevitable variations in witness accounts, the
23 preponderance of the evidence suggests the shooting of
24 Mr Duddy occurred after the arrest of Mr Doherty had
25 begun and probably just after Mr Glenn's attempts to
1 intervene in that arrest and before Mr Doherty was taken
2 away to Lieutenant N's Pig.
3 We argue later there is also evidence to suggest the
4 shooting of Mrs Deery happened during the arrest of
5 Mr Doherty. If so, whichever came first, the Tribunal
6 may think the shootings of Mrs Deery and Mr Duddy are
7 likely to have happened within a very short time of one
8 another.
9 We then take up the submission of the Lawton team in
10 which they argue it is probable Mr Duddy was:
11 "... accidentally hit at a time when he was among or
12 close to a hostile crowd that were throwing objects at
13 the soldiers and when a soldier aimed at another
14 person."
15 The Tribunal will have to consider whether this is
16 so, having regard to its conclusions as to where and
17 when Mr Duddy fell, and as to the nature, extent and
18 location of riotous activity in the car park.
19 We make a number of observations about this
20 submission and point out, even if the hypothesis is
21 assumed to be correct, when Mr Duddy was shot, a hostile
22 crowd around him was throwing objects at the soldiers.
23 It does not necessarily follow the soldier who fired the
24 shot was justified in doing so.
25 The Tribunal will have to (inaudible) target at whom
1 he fired was posing such a threat to him or others as
2 would have justified opening fire and also whether he
3 could have failed to appreciate he had hit someone other
4 than his intended target.
5 We turn to the question of who shot Mr Duddy. We
6 say there is no reason to believe anyone other than
7 a soldier shot Mr Duddy. Indeed, in their submissions
8 the Lawton team accept that a soldier must have shot
9 him. We make the point that the possibility cannot be
10 altogether excluded that a soldier who has never
11 admitted opening fire was responsible for the shooting.
12 But there is no particular reason to believe that to be
13 case, nor is there any evidence upon which any
14 individual soldier could be identified as a likely
15 additional firer.
16 On the other hand, no soldier who has admitted
17 firing has described an incident which can clearly be
18 recognised as the shooting of Mr Duddy. We consider the
19 evidence of various civilian witness who claim to have
20 seen which soldier fired the shot that killed him and
21 examine the likelihood that particular soldiers fired
22 the fatal shot and suggest certain considerations that
23 may influence the Tribunal's conclusions.
24 We turn next to the wounding of Margaret Deery.
25 Mr Fenson, the surgeon at Altnagelvin, reported that she
1 was admitted with a gunshot wound in the thigh
2 consistent with a small entrance wound at the front and
3 a very large exit wound at the back. The report of the
4 consultant neurologist at Belfast City Hospital confirms
5 she was injured in the left thigh and gives details of
6 the complications she suffered after her admission to
7 Altnagelvin.
8 Upon a review of the evidence as to the location at
9 which she was shot, we suggest that the preponderance of
10 the reliable evidence suggests that she was somewhere
11 not far from the corner of the backyard of 36
12 Chamberlain Street, probably a short distance from the
13 corner along the back of the houses.
14 In their submissions the Lawton team say Mrs Deery
15 managed to name three different people as being the man
16 next to her when she was shot and that this is
17 particularly strange in view of the fact that she told
18 the Insight journalists she did not know who this man
19 was. We suggest, in our submissions, that this
20 criticism is misconceived, for a number of reasons which
21 we there set out.
22 We also say that although the following two issues
23 cannot entirely be separated, the Tribunal may find it
24 helpful to consider what conclusions it can reach first
25 as to whether a soldier as opposed to a paramilitary
1 gunman shot Mrs Deery and then as to which individual
2 soldiers could have been responsible.
3 So far as the first issue is concerned, if a soldier
4 fired the shot that hit Mrs Deery, the following
5 possibilities exist. Firstly, that he shot her on
6 purpose without any belief that she posed a threat and
7 then lied to cover up what he had done.
8 Secondly, he shot her on purpose, in the belief,
9 albeit mistaken, that she posed a threat to him. This
10 appears unlikely, since there is no evidence that
11 Mrs Deery was acting in a manner that could have
12 appeared threatening and no soldier has admitted firing
13 at a woman.
14 Lastly, that the soldier fired a shot at someone
15 else, that the bullet hit Mrs Deery, either directly or
16 as a ricochet.
17 Mrs Deery's own account clearly suggests she saw
18 a soldier and that she believed this soldier had fired
19 the shot that hit her. The Tribunal may indeed find it
20 hard to believe that a paramilitary gunman would have
21 shot Mrs Deery on purpose, but might wish to consider
22 the possibility that she was hit by a shot fired by
23 a paramilitary gunman that was intended for a soldier.
24 Whether this possibility is realistic depends upon
25 other factors: how close Mrs Deery was to the soldiers
1 at the time of her shooting and upon the Tribunal's
2 conclusion as to the conclusions, if any, of
3 paramilitary gunmen in the area of the flats.
4 Even if the Tribunal is unable to be sure that the
5 soldier described by Mrs Deery fired the shot that hit
6 her, it may think that her statement showed that she was
7 facing towards the soldiers when she was shot. If so,
8 and if the Tribunal accepts that the entrance wound was
9 in the front of her thigh, the Tribunal may have some
10 difficulty in envisaging how a paramilitary gunman could
11 have shot her whilst intending to hit a soldier.
12 OIRA 4 has admitted that after Mr Duddy had been
13 shot he fired two or possibly three shots with a .32
14 automatic pistol from the corner of the backyard of 36
15 Chamberlain Street towards what was presumably
16 Sergeant O's Pig. His evidence was that he is the man
17 seen in the photograph at the side wall of the backyard
18 of 36 Chamberlain Street.
19 The photograph may be taken to show that as he
20 approached the corner, there were no civilians in the
21 immediate vicinity, which suggests by this time
22 Mrs Deery had already been shot and carried away. For
23 that reason, also because Mrs Deery appears to have been
24 shot from the front as she was facing the soldiers, the
25 Tribunal may think it improbable that any of the shots
1 from OIRA 4 accidentally hit Mrs Deery.
2 We consider in our submissions the identity of the
3 soldier who could have been responsible for shooting
4 Mrs Deery and suggest factors that may influence the
5 Tribunal's conclusions.
6 In relation to Michael Bridge, we note Mr Bennett,
7 the surgeon at Altnagelvin, reported that Mr Bridge had
8 been wounded in a left thigh, with the entry wound in
9 the anterior part of the lateral side, that is to the
10 outside of the thigh, and the exit wound in the
11 posterior part of the same area.
12 May we have on the screen P740. We deal with
13 photographs P740 and 741, which were taken by the
14 amateur photographer Sam Gillespie. Questions arise as
15 to whether the man on the right of P740 is Mr Bridge and
16 as to whether P741, in which Mr Bridge certainly
17 appears, was taken before or after he was shot.
18 As to that question, we make these observations: if
19 Mr Gillespie is right that he took P741 immediately
20 after Mr Bridge had been shot, it appears that he must
21 have reacted to the shot more quickly than Mr Bridge,
22 who shows no obvious signs of distress in that
23 photograph.
24 In their submissions in reply, the Lawton team set
25 out their reasons for doubting Mr Gillespie's evidence
1 on this point. Whilst the interpretation of the
2 photograph is of course a matter for the Tribunal, the
3 submissions of the Lawton team to say to the probable
4 physical reaction of Mr Bridge upon being hit in the
5 left thigh are not based on any expert evidence and the
6 Tribunal may think some caution is necessary in this
7 regard.
8 If the Tribunal accepts Mr Gillespie's evidence as
9 to the moment at which P741 was taken, the photograph
10 would place Mr Bridge, when he was shot, a short
11 distance southeast of the third parking bay in the row
12 of seven closest to Block 1 of the Rossville Flats,
13 counting from the end close to the wasteground.
14 If the Tribunal concludes he was shot after P741 was
15 taken, it is possible that at the time of the shooting
16 he had moved further towards the soldiers. We suggest
17 the Tribunal will have to consider whether, prior to the
18 shooting, Mr Bridge was behaving in a way that caused or
19 may have caused the soldier who shot him to believe that
20 he posed a threat and if so, what kind of threat.
21 Specifically, the Tribunal will have to consider
22 whether Mr Bridge threw or appeared to be about to throw
23 one or more stones or pieces of brick, and if so,
24 whether any such object could possibly have been
25 mistaken for a nail bomb or similar device. We discuss
1 the evidence on that question. We note in their
2 submissions the Lawton team invite the Tribunal, having
3 rejected Mr Bridge's denial that he had anything in his
4 hand as he moved towards the soldiers to:
5 "... consider why he should maintain that deception
6 unless it is that he is aware of the fact that he and
7 those around him were presenting a very much more lethal
8 threat to the soldiers than has been admitted."
9 As to this submission, we make a number of points.
10 Firstly, the reference to a threat very much more lethal
11 than has been admitted means presumably a threat from
12 either firearms or bombs. But at Day 93, page 70, the
13 Lawton team expressly disclaimed any suggestion that Mr
14 Bridge himself was armed with a nail bomb or firearm and
15 no such suggestion has been advanced elsewhere in their
16 submissions.
17 Secondly, it is not obvious why Mr Bridge would have
18 sought falsely to deny that he threw or had in his hand
19 a stone or brick in order to cover up the existence of
20 a threat from firearms or bombs being used by anyone.
21 The Tribunal may wish to ask itself why such a false
22 denial would be likely to achieve that purpose.
23 Lastly, the expression "presenting a very much more
24 lethal threat" may perhaps be intended to mean only that
25 the impression of such a threat was given to the
1 soldiers. If so, the submission leads the Tribunal back
2 to the question whether any actions of Mr Bridge could
3 have induced from the soldier who shot him a mistaken
4 belief that he posed such a threat.
5 We consider in our submissions the civilian evidence
6 as to the position of the soldier who shot Mr Bridge.
7 There is plainly no consensus on this question. Some
8 witnesses, notably Bishop Daly and Mr Bridge himself in
9 1972, placed the soldier near the northeast corner of
10 Block 1.
11 Others, notably William Harley, placed him on the
12 near side of Sergeant O's vehicle. Others, notably
13 Francis Dunne, placed him near the corner of the
14 backyard of 36 Chamberlain Street. The Tribunal will no
15 doubt wish to consider whether it finds the evidence of
16 any one of these three broad groups of witnesses more
17 convincing than that of the others and how much weight
18 it can attach to this evidence in seeking to identify
19 the soldier who fired the relevant shot.
20 Even if the Tribunal concludes that the evidence of
21 these witnesses is unreliable as the identity of the
22 firer, it may find it of some value as an indication of
23 where soldiers were deployed at the time of the
24 shooting. If there was a soldier at the near-side front
25 wheel of Sergeant O's vehicle at the moment when
1 Mr Bridge was shot, then some time must have separated
2 that moment from the taking of P741.
3 We suggest that if the soldier who shot Mr Bridge
4 was in any of the positions described in the civilian
5 evidence, which is however not the only possibility, in
6 view of Lieutenant N's evidence as to the firing of his
7 fourth shot, it appears unlikely that the distance
8 between the soldier and Mr Bridge at the time of firing
9 was more than about 30 yards, it may have been much
10 less.
11 Mr Bridge was shot in the thigh and, at least in the
12 situation at the time of the shooting, was, as depicted
13 in P741, there was no-one standing immediately beside
14 him.
15 That might lead the Tribunal to consider whether or
16 not it is possible the shot was intended to hit someone
17 other than Mr Bridge; upon the assumption that the shot
18 was intended to hit him, whether or not it was an aimed
19 shot; if it was an aimed shot, whether it was intended
20 to kill or to injure; and whether or not it is possible
21 that the soldier who shot Mr Bridge could have failed to
22 see that he had done so.
23 We consider in our submissions the identity of the
24 soldier and suggest a number of considerations for the
25 Tribunal to take into account.
1 In relation to Michael Bradley, the report of
2 Mr Fenson said Mr Bradley had sustained gunshot wounds
3 in both forearms and in the chest, consisting of small
4 entrance and exit wounds in the left forearm,
5 accompanied by comminuted fracture of the radius, large
6 entrance and exit wounds in the right forearm
7 accompanied by severe damage to the muscles and nerves,
8 and a severe comminated fracture of the radius and
9 entrance and exit wounds in the front of the chest,
10 accompanied by soft tissue damage only.
11 In a letter of 22nd March 1972, Mr Fenson expressed
12 the opinion that a bullet had struck the left forearm
13 first and passed across the chest and entered into
14 Bradley's right forearm, to which it caused much more
15 severe damage, probably because by that time it was
16 spinning: Dr Shepherd and Mr O'Callaghan stated with
17 regard to Mr Bradley's injuries:
18 "It is not possible to determine if the injuries to
19 the arms were caused by one or more than one projectile
20 or if they originated from left to right. No comment
21 can be made concerning the nature of the projectile or
22 projectiles. The injuries to the chest may have been
23 caused by fragments of bone, by fragments of one bullet,
24 or several bullets, or some other object or objects."
25 It is understandable Dr Shepherd and Mr O'Callaghan
1 should be cautious in drawing conclusions from the
2 medical records alone. The Tribunal has before it
3 a body of civilian evidence on the basis of which it may
4 perhaps be satisfied that there is no other reasonable
5 explanation of Mr Bradley's injuries than that he was
6 shot and that since that he appears to have sustained
7 all his injuries at once, it is likely, though not
8 certain, that a single bullet hit him.
9 It is a matter for the Tribunal whether it accepts
10 the opinion of Mr Fenton, who had the benefit of having
11 examined the wounds, that the bullet was travelling from
12 left to right, or whether it prefers, having regard to
13 the evidence of Dr Shepherd and Mr O'Callaghan, to reach
14 no conclusion on this issue.
15 We review in our submission the evidence of
16 Mr Bradley as to the circumstances of the shooting and
17 say the totality of his evidence suggests that he fell
18 somewhere between the northwestern part of the low wall
19 in front of Block 2 of the flats and the place where the
20 body of Mr Duddy lay.
21 We refer also to the evidence of a number of
22 civilian witnesses who have placed him rather further to
23 the southeast than his own evidence indicates. We
24 suggest, for reasons which we explain, it was unlikely
25 Mr Bradley was more than a short distance to the
1 southeast of the northwestern end of the wall when he
2 was hit.
3 We note that although it does not appear to be
4 controversial that Mr Bradley was shot after Mr Bridge
5 there is a paucity of evidence directly relating to
6 incidents. The most reliable indication is probably the
7 NICRA statement of Mr Derek Tucker at AD16.1, which
8 describes the shooting of a man in the middle of the car
9 park of the flats, evidently Mr Bridge, and then
10 describes the shooting of a man who had been crouching
11 at a low wall, evidently Mr Bradley.
12 If as appears likely the statement narrates the
13 events in the order in which they occurred, Mr Bridge
14 was shot before Mr Bradley.
15 Upon the assumption that a soldier shot Mr Bradley,
16 the Tribunal will have to consider whether, prior to the
17 shooting, Mr Bradley was behaving in a way that caused
18 the soldier to believe that he posed a threat and what
19 kind of threat, and specifically if Mr Bradley threw or
20 appeared to be about to throw one or more stones or
21 pieces of brick, and if so, whether any such object
22 could possibly be mistaken for a nail bomb or similar
23 device. We refer to the commissions and evidence on
24 that issue.
25 We note that Mr Bradley does not claim to know who
1 shot him, but merely recalls that he saw two soldiers
2 near Sergeant O's APC and that no clear indication
3 emerges from the evidence of other civilian witnesses at
4 as to the location from which the shot or shots that hit
5 Mr Bradley was or were fired.
6 The first question for the Tribunal is whether it is
7 satisfied that a soldier or soldiers shot Mr Bradley.
8 The Lawton team say this is by no means certain, but
9 accept the evidence taken as a whole makes it more
10 likely than not.
11 In view of the location in which Mr Bradley fell,
12 the Tribunal may find it difficult to envisage a
13 plausible explanation for a paramilitary gunman opening
14 fire in his direction. If the Tribunal concludes that
15 a soldier must have shot Mr Bradley, the question arises
16 whether it is possible to identify him and, as in
17 previous cases we refer in our submission to a number of
18 factors for the Tribunal's consideration.
19 I turn then to Patsy McDaid. In relation to
20 Patrick McDaid, the medical evidence is that he
21 sustained a laceration on the upper part of the left
22 scapula which was described as "a glancing wound which
23 had been fired as the patient was ducking down and did
24 not indicate a direct hit from behind."
25 The opinion of Dr Shepherd and Mr O'Callaghan is
1 that he had not been struck by a lead bullet and they
2 observed that objects could cause a slicing wound of
3 this kind would include an old penny or one of plates of
4 a U2 battery. In his oral evidence to the Tribunal,
5 Dr Shepherd said he thought it would be fair to say that
6 he and Mr O'Callaghan were confident that the wound had
7 not been caused by a lead bullet.
8 So far as the circumstances in which Mr McDaid was
9 injured is concerned, we suggest, despite his current
10 lack of recollection of feeling the blow, his numerous
11 accounts provide ample evidence, contrary to the
12 submissions of the Lawton team, both of where he was and
13 of what he was doing when he was hit. There seems no
14 reason to doubt his contemporaneous recollection that
15 something struck him in the back of his shoulder as he
16 was bending to dive for cover and his evidence as
17 a whole clearly indicates this happened as he was
18 preparing or beginning to jump over the low wall in the
19 southern corner of the car park of the Rossville Flats
20 either at or beside the steps which are there.
21 There is no evidence that Mr McDaid was behaving at
22 any material time in a way that presented or could
23 reasonably have appeared to present a threat to the
24 soldiers. We suggest, for reasons which we explain, the
25 Tribunal may feel satisfied that EP25.7, showed
1 Mr McDaid lying face down on the ground very shortly
2 after he had been injured. This assists in determining
3 the stage at which he was injured. According to
4 Mr Peress's statement to the Widgery Inquiry, the body
5 seen in the previous photograph, EP25.6, had been
6 removed by the time Mr Peress took EP27 and EP25.8 which
7 suggests Mr McDaid was injured not only after the
8 shooting of Mr Bridge, but also after the shooting of
9 Mr Bradley, since both were shot while the body of
10 Mr Duddy was still lying in the car park of the flats.
11 The Tribunal will have to consider what conclusions
12 it can reach as to the nature of the projectile that
13 caused Mr McDaid's injury. With regard to this the
14 Lawton team submit Mr McDaid may have been hit by
15 a malfunctioning nail bomb. They say he was not hit by
16 a~7.62 millimetre round fired by a soldier and there is:
17 "... circumstantial evidence from a number of
18 different sources that suggest the most likely cause of
19 his injury was by being hit as part of such of a bomb."
20 Madden & Finucane submit it was:
21 "... overwhelmingly likely that he was wounded by a
22 projectile fired from a rubber bullet gun which had
23 probably been doctored."
24 They say it was most likely that Private 013 fired
25 the projectile, or at least that he is the prime
1 contender for having done so.
2 A further possibility, of which we say the Tribunal
3 should not entirely lose sight, was that Mr McDaid was
4 in fact hit by a fragment of a live round or a piece of
5 debris sent flying when a live round made contact with
6 some other object.
7 As to the first of those possibilities, the
8 malfunctioning nail bomb, we note that the evidence
9 relied upon by the Lawton team is, as they acknowledge,
10 circumstantial. No witness who was near Mr McDaid when
11 he was injured has given evidence that an explosion
12 occurred anywhere around him.
13 As to the second, the projectile from a rubber
14 bullet gun, we note that no witness who was near
15 Mr McDaid when he was injured has given evidence of
16 seeing a baton round hit him or of seeing a baton round
17 on the ground after he had been hit.
18 On the evidence of the four soldiers of the Mortar
19 Platoon who were equipped with baton guns Private 17
20 never went to a location from which he could have fired
21 a baton round into the car park of the flats. Private
22 19 did not think that he fired any baton rounds into the
23 car park. Private 13 and Private 112 both fired
24 a number of baton rounds into the car park, but neither
25 said he fired them towards the passage between Blocks 2
1 and 3, and Private 112 said that he doubted that he
2 would have done so.
3 We say this affords a basis upon which the Tribunal
4 could conclude that if Mr McDaid was hit by a modified
5 baton round the soldier most likely to have fired it was
6 Private 13 or, less probably, Private 112. But it does
7 not begin to prove Mr McDaid was in fact injured in that
8 way.
9 As to the third possibility, we note Dr Shepherd and
10 Mr O'Callaghan came to the conclusion that the --
11 LORD SAVILLE: Mr Clarke, I think we will take a short break
12 for the stenographers now.
13 (2.10 pm)
14 (A short break)
15 (2.20 pm)
16 MR CLARKE: Could we have on the screen AB90.3, please.
17 I come now to the position of Patrick Brolly, who made
18 a statement to this Inquiry on 24th April 1999, but was
19 unable, by reason of ill health, to give oral evidence
20 and died in January 2002. In his statement he said that
21 as the Army was coming into the Bogside he made his way
22 to Kathleen Cunningham's flat in Block 2 of the
23 Rossville Flats, located at about point B on the plan,
24 which is now on the screen. From the window of that
25 flat he said that he saw Father Daly administering the
1 last rites to Mr Duddy, turned away from the window and
2 was hit by a bullet that came through the window and
3 skimmed the left side of his head just above the
4 forehead. He fell to the ground, was knocked out for
5 a while and was taken to Altnagelvin, in the same
6 ambulance as Alana Burke and Barney McGuigan, but was
7 discharged later in the day.
8 In our submissions we review the evidence of his
9 widow, Celine Brolly, his daughter Marie Cregan and his
10 sister Annie Curran and suggest three connected
11 questions arise. Firstly, was Mr Brolly in fact in
12 Block 1 or Block 2 of the flats when he was injured?
13 Secondly, was the projectile that hit him a baton
14 round or a live round?
15 Thirdly, who fired the baton round or bullet that
16 hit him?
17 So far as the first question is concerned, the
18 evidence of Mr & Mrs Brolly to the Inquiry was that
19 Mr Brolly was in Block 2, whereas the evidence of
20 Mrs Creggan and Mrs Curran was he was in block 1. For
21 reasons we explain in our submissions, we suggest
22 Mr Brolly was in Block 1 when he was injured, and that
23 the evidence of Mrs Curran should be preferred to that
24 of Mr & Mrs Brolly on this point.
25 As to the second question, the evidence of Mr & Mrs
1 Brolly and Mrs Creggan appears to establish that Mr &
2 Mrs Brolly initially believed Mr Brolly had been injured
3 by a baton round or alternatively by glass sent flying
4 when a baton round smashed the window, but the
5 subsequent discovery of a lead bullet embedded in
6 a wardrobe changed their minds. There is nothing to
7 contradict the evidence that a lead bullet was found in
8 the wardrobe; and although Mrs Curran could not say
9 whether her brother had been hit by a live round of a
10 baton round, the Tribunal may attach significance to her
11 evidence that attempts to find the bullet immediately
12 after the incident were unsuccessful. Had a baton round
13 been fired into the room, it might perhaps have been
14 suspected that it would have been more easily located.
15 As to the third question, if a baton round was the
16 cause of Mr Brolly's injury, three of the four soldiers
17 of the Mortar Platoon equipped with baton guns, Private
18 13, Private 19 and Private 112, would have been in
19 a position to fire it. Private 17 may be left out of
20 the count since on his evidence he never went to
21 a location from which he could have fired a baton round
22 either into the southeast side of Block 1 or the
23 northeast side of Block 2.
24 Of the other three soldiers, only Private 13 has
25 said he fired baton rounds into the windows of the
1 flats. In his statement to the Inquiry he said he did
2 so in order to "keep people away from the windows to
3 prevent them shooting at us" and he could not recall at
4 which windows he had fired. For this reason the
5 Tribunal might think he is the most likely of the three
6 to have been responsible.
7 However, the Tribunal may consider it more probable
8 that a live round caused Mr Brolly's injury. No soldier
9 has admitted firing a live round into the northeast side
10 of Block 2. If the Tribunal were to conclude that
11 a live round fired by a soldier had hit Mr Brolly in
12 that block, this would entail one of the soldiers had
13 not given a full account of his firing, but there could
14 be no evidence on which the Tribunal could determine the
15 identity of that soldier.
16 The position may be different if the Tribunal
17 concludes that a live round fired by a soldier hit
18 Mr Brolly in Block 1. Upon that hypothesis we say (for
19 reasons which we explain in more detail in our written
20 submissions), it would be open for the Tribunal to draw
21 the further conclusion that this is likely to be one of
22 the two live rounds (probably the first) fired by
23 Private T. The only alternative (for which there is no
24 evidence) is that another soldier fired the relevant
25 shot and failed to admit that he has done so.
1 Finally in this sector we deal with the injury
2 sustained by Pius McCarron, who did not make a statement
3 in 1972 and was unable by reason of serious illness to
4 give evidence in any form to this Inquiry.
5 In their submissions the Lawton team set out the
6 evidence of Patrick Clarke, to the effect that he found
7 Mr McCarron lying in the entrance either to the passage
8 between Blocks 1 and 2 of the flats, or to the passage
9 between Blocks 2 and 3, and that he helped him to
10 Joseph Place, where Mr McCarron told him he had been hit
11 on the head "by a piece of masonry from a ricochet".
12 This account is described by the Lawton team as
13 "inherently implausible" for reasons that are not
14 explained, although attention to drawn to the fact that
15 in his evidence to the Inquiry Mr Clarke said that he
16 saw a piece of masonry lying next to Mr McCarron in the
17 passage, whereas in his NICRA statement he did not
18 mention this and said that he had been unable when first
19 attending to Mr McCarron to determine what was wrong
20 with him.
21 In our submissions we set out the evidence of
22 Mr Clarke and suggest the most likely explanation of the
23 differences in his accounts is the imperfection of
24 memory after the passage of the years and that his NICRA
25 statement is generally likely to be more reliable than
1 his evidence to this Inquiry. We suggest it is an open
2 question whether Mr Clarke saw a piece of masonry beside
3 Mr McCarron and omitted to mention it in his NICRA
4 statement, or whether he has acquired a false memory of
5 having seen a piece of masonry by the time he made his
6 statement to this Inquiry.
7 We note that the Lawton team refer six times in
8 their submissions to Mr McCarron having been knocked
9 "unconscious". This is used to cast doubt on
10 Mr McCarron's own explanations of what happened to him,
11 on the basis of a submission that "it is, of course,
12 unusual for people who are knocked unconscious to be
13 able to recall the cause." It is then pointed out that
14 Mr McCarron did not go to Altnagelvin. But it is
15 notable that nowhere in his evidence has Mr Clarke said
16 that Mr McCarron was knocked unconscious. It is true
17 that it appears from Mr Clarke's NICRA statement
18 Mr McCarron did not explain what had happened to him
19 until after he had reached Joseph Place, but that is as
20 consistent with him being dazed, shocked or distressed
21 as it is with him being unconscious.
22 It is also true that in his statement to this
23 Inquiry Mr Clarke said at first he thought Mr McCarron
24 had been shot dead, but it is clear this initial
25 impression did not last for long, since on his account
1 Mr Clarke found no bullet wound, but instead saw the
2 piece of masonry and the gash on Mr McCarron's head.
3 We also invite the Tribunal to consider the evidence
4 of Eamonn Baker and James Eugene Deeney, who described
5 the strike of bullets on the high retaining wall in
6 front of block 3 at the time when Mr McCarron fell.
7 We observe that Sergeant O, Private Q and Private R
8 fired, on their evidence, six live rounds in the
9 direction of the passage between Blocks 2 and 3 of the
10 Rossville Flats. If their trajectory photographs are
11 accurately marked, these shots, unless they hit an
12 intermediate target, would have hit the high retaining
13 wall in front of Block 3 in the very place indicated by
14 Mr Baker and Mr Deeney.
15 The Tribunal may think only one of these shots could
16 easily have dislodged masonry that hit Mr McCarron
17 and/or caused dust to fall into his eyes. While the
18 details of the accounts given by Mr Baker, Mr Clarke and
19 Mr Deeney are not wholly consistent with one another,
20 their evidence as a whole may satisfy the Tribunal that
21 whatever happened to Mr McCarron was attributable to
22 falling masonry. We say it is not clear that he was
23 seriously injured or knocked unconscious.
24 The Lawton team, however, submit that a "far more
25 likely explanation" is that Mr McCarron was "knocked
1 unconscious by a blast from a bomb of some description".
2 Yet neither Mr Baker nor Mr Deeney, who were both close
3 to Mr McCarron at the time, appears to have heard any
4 explosion, let alone suffered any similar consequences
5 as a result of the blast, and we respectfully suggest
6 the proposition for which the Lawton team contend is
7 speculation, and speculation which is incompatible with
8 the evidence of those two, if the Tribunal accepts it.
9 I turn then, if I may, to Sector 3. We begin in our
10 submissions by examining the composition of the
11 Composite Platoon and the Anti-Tank platoon and the
12 allocation of members of those platoons to their
13 respective vehicles, into which I do not propose to go
14 further now.
15 We refer to the submissions of the interested
16 parties that deal with the arrival of the Army vehicles
17 in Rossville Street and the subsequent deployment of the
18 soldiers and what is shown in various photos and the
19 film from ABC, video 48. We suggest, for reasons
20 explained in the written submissions, that the ABC film
21 is likely to show Private 112 firing a baton round on
22 disembarkation from Sergeant O's vehicle when it stopped
23 in Rossville Street.
24 May we have on the screen, please, P1117. We analyse
25 in our submissions the principal photographs that are
1 relevant in these context, namely, Ciaran Donnelly's
2 sequence of photographs, and Liam Mailey's sequence. We
3 suggest, for reasons which we explain, that the arrest
4 of William Dillon on the wasteground was in progress at
5 the time when P1117 and P1118 were taken and hence that
6 any foray from the barricade provoked by or simultaneous
7 with his arrest would have occurred whilst Corporal P
8 and Private 017 were alongside the ramp to the south of
9 Kells Walk, although the foray would not necessarily
10 have been directed at them as opposed to the soldiers
11 involved in the arrest.
12 We also considered the evidence of three soldiers
13 who acknowledged that they fired baton rounds towards
14 the rubble barricade. These are Private 17, Lance
15 Corporal 18 and Private 112. We suggest that the
16 Tribunal will wish to evaluate the evidence of these
17 soldiers when reaching conclusions as to the nature and
18 extent of the rioting that took place in the area of the
19 barricade and will wish to consider how far it accepts
20 the evidence of the soldiers about the seriousness of
21 the threat that they faced and its assessment of their
22 evidence is likely also to influence any view that it
23 forms as to whether the firing of baton rounds was
24 justified.
25 We deal also with the injury to Seamus Liddy. He
1 was interviewed by Peter Pringle on 18th May 1972.
2 According to the Sunday Times note of the interview,
3 Mr Liddy ran into Glenfada Park when the Army entered
4 the Bogside. The note continues, and I quote:
5 "There was a group standing by the gable and he went
6 over to it. He could see a soldier across near the
7 barricade, standing at the bottom of the
8 Rossville Flats. The soldier fired a rubber bullet
9 which hit Liddy in the chest chose to his heart. He is
10 not a strong man, he is 43 and it hurt him badly. He
11 was helped by his brother Barry and Father Bradley. The
12 next thing he saw was a group bending over the body of
13 Michael Kelly ..."
14 In his interview with Kathleen Keville, Mr Liddy
15 made no reference to this incident, claiming instead the
16 Army had detained him in William Street while he was on
17 his way to work. We make the suggestion he was likely
18 concerned at the time of the interview not to admit he
19 had been among the crowd in Glenfada Park or in the area
20 of the rubble barricade. He himself is now dead and did
21 not make a statement to this Inquiry.
22 The evidence of other witnesses confirms that
23 Mr Liddy received an injury from a baton round and we
24 suggest that this evidence establishes that he was hit
25 in the chest, probably when he was somewhere on the west
1 side of Rossville Street near the entrances to
2 Glenfada Park North. It is clear he was in some pain
3 after being struck and it appears on the evidence of
4 John O'Kane that he was bleeding. There is no evidence
5 that he was seriously injured or that he required
6 hospital treatment. After being injured he was
7 arrested. He told Ms Keville he was then assaulted,
8 both before and after his arrival at Fort George.
9 Nevertheless, as Mr Pringle's note records, he was
10 able to present himself for work the next morning.
11 The papers relating to the arrest of Mr Liddy
12 include a statement of Corporal E, in which he says that
13 he saw Mr Liddy throwing stones at the Security Forces
14 and arrested him. It appears from the report to the
15 Director of Public Prosecutions, dated 2nd June 1972,
16 Corporal E made a further statement, which is not before
17 the Tribunal, and which was described as being in
18 complete variance with the statement of Mr Liddy, in
19 which he claimed he saw Mr Liddy throw a missile, chased
20 him and caught him. If that was true, it can only have
21 happened after Mr Liddy had been injured, since
22 Corporal E made arrests only after he had entered
23 Glenfada Park North with other members of the Anti-Tank
24 Platoon, which in turn happened only after
25 Lance Corporal F had fired the shot that hit Mr Kelly.
1 Thus Corporal E's statement does not show Mr Liddy was
2 throwing stones before he was injured, nor is there
3 other evidence that he was doing so.
4 As to the identity of the soldier who fired the
5 baton round that hit Mr Liddy, we consider the
6 possibilities but suggest there is no evidence that any
7 of the soldiers with baton guns was aiming specifically
8 at Mr Liddy. In his oral evidence to this Inquiry at
9 Day 358/59 to 60, Private 017 said that he aimed his
10 baton rounds generally into the crowd and not at anyone
11 in particular.
12 Mary Breslin (formerly Mary Smith) said in her
13 statement to this Inquiry she was watching events from
14 the larger of the two windows of the sitting room of her
15 mother's flat at 2 Kells Walk. This was the
16 southernmost window on the first floor on the east side
17 of the block. After the soldiers entered
18 Rossville Street, a foreign photographer arrived in the
19 flat and went to the smaller, more northerly window of
20 the same room. Someone in the flat warned that
21 a soldier was pointing a gun up at the flat. Miss Smith
22 herd a bang and was hit on the left side of her face and
23 in her left eye by flying glass. She did not think
24 anyone had been doing anything at either window to
25 attract attention. Miss Smith was admitted to hospital
1 and underwent an operation. She lost sight in her left
2 eye for a week or so. Mrs Breslin did not give oral
3 evidence.
4 We review, however, the evidence of other civilian
5 witnesses who were present when this incident occurred
6 and Corporal 039 and Private M of the Composite Platoon.
7 We suggest, despite some inconsistencies in the
8 evidence, the Tribunal may think that it is clear that
9 Corporal 039 fired the baton that caused Miss Smith to
10 be injured by flying glass. It appears that
11 a photographer, whose identity has not been established,
12 was taking photographs or trying to do so before the
13 baton round was fired, but there is no suggestion that
14 his camera was mistaken for a weapon. The evidence of
15 Kathleen Kelly, Brian Power and Corporal 039 himself
16 indicates that the baton round was fired from somewhere
17 on the west side of Rossville Street not far from the
18 window and Damien Friel's evidence to a different effect
19 appears to be mistaken.
20 Mr Power and Mr Friel appear independently to recall
21 that a more senior soldier, described by Mr Power as an
22 officer, by Mr Friel as a sergeant, had pointed out the
23 window of the flat to the soldier who fired the baton
24 round. If this is true, the identity of that officer or
25 non-commissioned officer remains unknown. Corporal 039
1 has never suggested he fired other than on his own
2 initiative.
3 We say that the principal question for the Tribunal
4 to resolve is whether the firing of this baton round was
5 justified. In particular, the Tribunal will have to
6 decide whether it accepts the evidence given by Corporal
7 039 in 1972 that two women had been throwing missiles
8 from the window before he fired (although, according to
9 his statement to the Widgery Inquiry, one of them began
10 to close the window when he took aim), or whether it
11 prefers the evidence of those that were in the flat, who
12 said that no missiles were being thrown.
13 I turn to the position of Joseph Lynn and his arrest
14 and the disputed question of firing in the derelict
15 building north of Kells Walk. In the light of the
16 evidence of Mr Lynn, Lance Corporal 229 and Private L,
17 we say that the following issues arise.
18 The first is who arrested Mr Lynn?
19 The second is whether the arrest of Mr Lynn was
20 justified on the grounds that he had been seen throwing
21 stones at the Security Forces or on any other ground?
22 Thirdly, the question arises as to whether a soldier
23 opened fire in the derelict building prior to the arrest
24 of Mr Lynn. If so, which soldier? How many rounds did
25 he fire? Were the shot(s) aimed? What was their
1 purpose? Were they justified?
2 As to the first issue, who arrested him, there are
3 strong reasons to believe both Lance Corporal 229 and
4 Private L took part in the arrest of Mr Lynn. All three
5 witnesses describe an arrest in the same building of
6 a man who had taken cover above ground level by
7 a soldier or soldiers who shouted warnings or orders to
8 him to come down. So far as is known, no other person
9 was arrested in that building.
10 Each soldier said in 1972 that another was involved
11 and Lance Corporal 229 said the other soldier was
12 Private L. Lance Corporal 229 identified Mr Lynn at
13 Fort George as the man whom he had arrested. Doubts
14 arise only because of Mr Lynn's evidence that just one
15 soldier was involved in his arrest and that this soldier
16 was different from and taller than Lance Corporal 229.
17 In his oral evidence Mr Lynn said he was as sure as he
18 could be this soldier was white, although his face was
19 blackened. Mr Lynn was about five foot 11 inches tall
20 and on his evidence the soldier who arrested him was
21 about the same height. If this evidence is accurate, it
22 would show the soldier who arrested Mr Lynn was not
23 Lance Corporal 229, who was five foot eight inches tall.
24 However, it would also exclude Private L, who was not
25 white, did not wear camouflage paint, and was only five
1 foot seven inches tall.
2 The implication in Mr Lynn's evidence, if accurate,
3 is there a third soldier (whose identity is unknown)
4 effected his arrest, and that the incidents described by
5 Lance Corporal 229 and Corporal L were either invented
6 (for reasons that are not apparent) or related to the
7 arrest of someone else (despite the many points of
8 similarity to the circumstances of his own arrest). The
9 Tribunal may think the more plausible explanation is
10 that Mr Lynn was mistaken both in his belief the soldier
11 who arrested him was alone and as to the height of that
12 soldier.
13 As to the second issue, the justification for the
14 arrest, the justification given for the arrest by Lance
15 Corporal 229 at the time was that he had seen Mr Lynn
16 throwing stones. This proforma statement is the only
17 evidence that Mr Lynn was seen engaging in such
18 activity. In his statement to this Inquiry, Lance
19 Corporal 229 said that he no longer recalled whether he
20 had seen Mr Lynn throwing stones or whether someone told
21 him this is what Mr Lynn had been doing.
22 In his oral evidence, he said he was sure he had not
23 seen Mr Lynn doing anything wrong. When he said why he
24 chased after Mr Lynn, Lance Corporal 229 said he had
25 "probably been told to go and get him", although he did
1 not remember being told this. At Day 341/33 he said
2 that it was also possible that he had simply gone after
3 anyone whom he could catch.
4 Mr Lynn has denied that he threw any stones in his
5 statement to this Inquiry and his oral evidence. As
6 noted by the Aitken team, Lance Corporal D said in his
7 RMP statement that after disembarking from his vehicle,
8 he was given an arrested youth to look after, who told
9 him that his name was Finn, and that he had "become
10 mixed in the riot accidentally." The description given
11 by Lance Corporal D suggests this was in fact Mr Lynn.
12 In his statement to this Inquiry, Lance Corporal 229
13 said that people had been throwing stones when the
14 soldiers arrived in the area and that Mr Lynn may have
15 been one of them. The Tribunal may wish to consider
16 whether Lance Corporal 229 could have held a genuine
17 suspicion that Mr Lynn had been throwing stones, even
18 though he did not recognise him as someone who had been
19 rioting before he entered the building. Such
20 a submission, even if not well-founded, might in
21 principle have justified an arrest, but the fact remains
22 the justification given by Lance Corporal 229 at the
23 time was that he had seen Mr Lynn throwing stones.
24 As to the third issue, the opening of fire, Mr Lynn
25 and Corporal 229, albeit in the case of the latter only
1 in his statement to this Inquiry, have both said that
2 a soldier opened fire in the derelict building prior to
3 Mr Lynn's arrest and Corporal 229 identified that
4 soldier as Private L. In his RMP statement Captain 200
5 said that when the Composite Platoon returned to
6 Clarence Avenue he immediately ordered an ammunition
7 check and conducted preliminary questioning of those who
8 had fired their weapons.
9 In relation to Private L he recorded the following:
10 "1 x 7.62 in rafters of ruin 43281696 at possible
11 sniper in roof -- deliberate miss after two warnings to
12 come down. Man jumped down from roof (15 feet) and was
13 arrested. Roof not searched for weapons."
14 The grid reference corresponds to the building
15 immediately north of Kells Walk. In his oral evidence
16 to this Inquiry, Captain 200 confirmed that this
17 information could only have come from Private L. This
18 appears to provide contemporaneous corroboration for the
19 evidence of Lance Corporal 229, that Private L fired one
20 shot in the derelict building before the arrest of
21 Mr Lynn.
22 In his oral evidence to this Inquiry, Private L
23 maintained that he did not fire a shot into the rafters
24 of derelict building and was unable to explain how
25 Captain 200 recalled he had done so. He denied that he
1 had decided to pretend that he did not fire the shot
2 after having realised that it was unjustifiable. The
3 Tribunal will have to decide what it makes of
4 Private L's evidence on this matter.
5 If the Tribunal finds, in reliance on Captain 2000's
6 RMP statement, that Private L initially admitted he had
7 opened fire in the derelict building, it may think it
8 unlikely he would have claimed to have fired only one
9 shot in that location if in fact he had fired two. It
10 does not appear that it would have served any useful
11 purpose to conceal one shot while admitting the other.
12 The Tribunal may think this is a reason for preferring
13 the evidence of Lance Corporal 229, that Private L fired
14 one shot, to the evidence of Mr Lynn that the soldier
15 who arrested him fired two.
16 Lance Corporal 229 said in his statement to this
17 Inquiry that Private L came into the building carrying
18 his rifle pointing upwards. He shouted to Mr Lynn to
19 come down and fired at the same time. The shot, he
20 said, was not an aimed shot and it was not aimed at
21 Mr Lynn. This appears to mean not just that the shot
22 was not aimed at any person, but that it was not aimed
23 at all. It does not appear that any shot that may have
24 been fired was intended to hit Mr Lynn.
25 In his statement to this Inquiry, Lance Corporal 229
1 said that Private L fired as a warning. This is
2 consistent with the description of the shot in
3 Captain 200's RMP statement of a deliberate miss.
4 Although Mr Lynn said he felt something pass through his
5 hair when the soldier fired, he did not suggest that the
6 soldier had attempted to kill him. In giving evidence,
7 he was asked whether the soldier could have missed if he
8 had been shooting to kill and said "at that range he
9 would probably took me off at the waist."
10 The Yellow Card required that a soldier should fire
11 only aimed shots and should not fire more rounds than
12 absolutely necessary. Private L agreed, on Day 381,
13 there had been no need to fire at a man in the rafters
14 of a derelict building and later on the same day that
15 a deliberate miss would have been a breach of the Yellow
16 Card. Lance Corporal 229 said at Day 341/35 that he did
17 not believe Mr Lynn presented any form of threat and
18 that if Mr Lynn had not come down from the rafters he
19 would have gone up himself and brought him down. The
20 Tribunal may therefore be satisfied that if Private L
21 opened fire in the derelict building prior to Mr Lynn's
22 arrest, the firing was unjustified.
23 I turn then to the shooting incidents and observe
24 seven known casualties attributable to gunshot wounds in
25 sector three: Michael Kelly, Hugh Gilmore, Michael
1 McDaid, William Nash, John Young, Kevin McElhinney and
2 Alexander Nash.
3 We set out in our submissions a summary of the live
4 rounds that were fired in this sector according to the
5 evidence given by the soldiers. On that evidence,
6 soldiers fired 39 shots in Sector 3, although the
7 absence of any contemporaneous record of Private
8 Longstaff's shot or Private INQ449's shot may raise
9 a question as to whether they were in fact fired.
10 There is no evidence that either of two shots fired,
11 according to the evidence that he gave in 1972, by
12 Private L up into the derelict building in Abbey Street,
13 or the three shots fired overhead by Corporal P in
14 Rossville Street caused injury to anyone. It is clear
15 those shots could not have been responsible for any of
16 the known casualties who were all at ground level when
17 they were killed or injured.
18 As to the remaining 34 shots, we say that
19 a distinction may conveniently be drawn between those
20 fired at targets above ground level and those fired at
21 targets at ground level. According to the evidence of
22 the soldiers, 17 shots were fired by seven soldiers at
23 seven targets above ground level in Block 1 of the
24 Rossville Flats, predominantly at a late stage.
25 It is clear that these shots could not have been
1 responsible for any of the known casualties. With
2 regard to those shots, we make certain observations. In
3 particular, we say, for reasons which are set out in the
4 written submissions, it seems probable that the seven
5 shots fired, on the soldiers' evidence by
6 Lance Corporal F at his first and second gunmen and by
7 Private G at his gunman, were all in fact fired at the
8 window of 12 Garvan Place.
9 It is at least clearly implicit, in the evidence
10 of JOhn McCrudden, Margaret Fetherston, Fulvio Grimaldi
11 and Susan North, that there was no gunman in 12
12 Garvan Place and that the only object held out of the
13 window was Mr Grimaldi's camera. If the Tribunal
14 accepts that evidence, it may conclude
15 Lance Corporal F's first two gunmen did not exist,
16 neither did Private G's.
17 Private Longstaff said in his Eversheds statement he
18 fired at the parapet at the top of Block 1 of the flats
19 because he believed that a shot had been fired in his
20 direction from the roof. He confirmed in his oral
21 evidence he did not see the person who had fired the
22 shot, but said he was "pretty positive where the shot
23 had come from." Whatever the Tribunal makes of this
24 evidence, it may find it difficult to see how, without
25 a sighting, he could have been in a position to know
1 that the gunman was on the roof.
2 The Tribunal might think, therefore, that his
3 evidence provides no sound basis for concluding that
4 there was in fact a gunman on the roof of Block 1.
5 If the targets described by Lance Corporal F and
6 Private G on the second floor of Block 1 of the flats
7 and Private Longstaff on the roof are disregarded, three
8 targets in Block 1 remain to be explained. These are
9 Private C's second gunman, at whom Lance Corporal D and
10 apparently Private INQ449 also fired, Corporal E's
11 gunman and Lance Corporal F's third gunman. Of these
12 soldiers, only Private C and Lance Corporal D came to
13 have hit their target: if they did so, the identity of
14 the casualty is unknown. Those are the 17 shots fired
15 at elevated targets.
16 According to the evidence of the soldiers, another
17 17 shots were fired by eight soldiers at nine targets at
18 ground level in this sector. It seems highly probable
19 (on their evidence) that all the shots fired over the
20 rubble barricade by Sergeant K, Private L and Private M
21 were aimed at one or other of two men, but it is not
22 entirely clear whether Sergeant K and Private L aimed at
23 the same man or different men or to which of the two men
24 at whom Private M fired their respective targets
25 correspond.
1 The bullet recovered from the body of Michael Kelly
2 was matched to the rifle of Lance Corporal F. It
3 follows that unless Lance Corporal F fired more shots in
4 this sector than he has admitted the shot that killed
5 Mr Kelly must have been the shot Lance Corporal F fired,
6 on his evidence, at a man throwing a nail bomb from the
7 south side of the rubble barricade. If the Tribunal is
8 satisfied Mr Kelly was not a nail bomber, then
9 Lance Corporal F's evidence that he fired at a nail
10 bomber and that he hit his intended target must, in at
11 least one of those respects, be either mistaken or
12 untruthful, unless the bullet hit the nail bomber before
13 it hit Mr Kelly.
14 On the assumption that Lance Corporal J did not hit
15 either of his nail bombers, as he thought was the case,
16 and that Private U did not hit the man behind his
17 gunman, but that otherwise the soldiers hit the targets
18 at whom they say that they fired, and if
19 Lance Corporal F's nail bomber is disregarded on the
20 ground that this shot must have hit Mr Kelly, these
21 shots should have resulted in five gunmen and one nail
22 bomber being killed or injured.
23 Once again, however, there is no clear match between
24 any of the targets described by the soldiers and any of
25 the known casualties. In seeking to account for the
1 seven known casualties in this sector, the Tribunal will
2 have to consider not only the shots acknowledged to have
3 been fired by soldiers at targets at ground level, but
4 also the possibility that one or more of the casualties
5 was attributable either to additional military gunfire
6 that has not been acknowledged, or to firing by
7 paramilitary gunmen.
8 Furthermore, if the Tribunal finds implausible
9 Private H's evidence to the Widgery Inquiry that he
10 fired 19 shots at a man who had fired a rifle from one
11 of the windows of 57 Glenfada Park, it will have to
12 consider whether some or all of those shots may have
13 been fired at Rossville Street, and if so, whether or
14 not they caused any deaths or injuries.
15 This analysis leaves out of account the following
16 additional shots of which the Tribunal has heard
17 evidence. Firstly, as I mentioned in connection with
18 the arrest of Joseph Lynn, Corporal 229 gave evidence
19 that Private L fired a shot in the derelict building
20 immediately north of Kells Walk prior to Mr Lynn's
21 arrest. While the Tribunal may reject Private L's
22 denial that he fired this shot and may find that it was
23 fired without justification, it is clear that the shot
24 did not cause any death or injury.
25 Private L, in his statement to the Inquiry, said
1 that Corporal INQ1671 fired a shot from a position at
2 the north end of Rossville Street at a man trying to
3 pull a pistol or revolver out of his belt near the
4 junction of Pilot Row and Rossville Street and
5 apparently killed him instantly. Corporal INQ1671 is
6 now dead and there is no evidence from him before the
7 Tribunal. The absence of his name from the nominal roll
8 suggests that he was not even present on Bloody Sunday.
9 We suggest that no reliance can safely be placed on
10 Private L's account of the incident and it also
11 certainly did not happen.
12 I come then to Michael Kelly. In relation to
13 Mr Kelly, we refer the Tribunal to the report of
14 Dr Shepherd and Mr O'Callaghan, which records that the
15 bullet entered the left side of the abdomen on a track
16 slightly from left to right and downwards. The bullet
17 probably struck Mr Kelly with its nose pointing upwards
18 and to the right and the base pointing downwards, which
19 indicates that the bullet was unstable. So far as the
20 cause of instability is concerned, when he gave evidence
21 Dr Shepherd said that it was most likely that the bullet
22 had struck an object or person before it struck
23 Mr Kelly. It could have bounced off a hard object or
24 passed off a soft object such as part of a human body
25 but the "relatively pristine" state of the bullet showed
1 it had not passed through a hard object and suggested
2 that any contact with such an object had been very
3 shallow.
4 Mr O'Callaghan in his evidence said that while no
5 damage to the bullet was apparent in the photograph that
6 shows it, it was not possible safely to draw from the
7 X-ray (which showed the bullet lodged in the sacrum) the
8 conclusion that the bullet was undamaged. If a bullet
9 had struck a hard object, it is likely that some damage
10 would have resulted, although not necessarily visible to
11 the naked eye if the contact was slight.
12 Dr Martin examined the bullet microscopically in
13 1972. He did not report that the bullet was damaged.
14 The Tribunal may think that he would at least have
15 reported any damage that he thought significant, but it
16 is not clear whether, for example, he would have
17 regarded the slight deformity as significant.
18 Professor Simpson told the Widgery Inquiry that he
19 did not think the bullet was a ricochet or that it had
20 struck bone before it entered into Kelly's body,
21 although his view appears to have been based on the
22 degree of enlargement of the entrance wound rather than
23 on the absence of damage to the bullet. He thought it
24 possible the bullet had been slightly deflected on
25 passing through soft tissue or clothing before it hit
1 Mr Kelly.
2 It is obviously for the Tribunal to decide what
3 conclusions, if any, can be drawn from this evidence as
4 to the cause of the bullet's instability.
5 We then refer in our submissions to the evidence of
6 Dr Martin and Dr Lloyd regarding firearm discharge
7 residue and invite the Tribunal to conclude that the
8 results obtained by Dr Martin should not be relied upon
9 as any evidence that Mr Kelly or anyone close to him
10 when he was shot was handling or using a firearm.
11 From a comparison of the rifling marks on the bullet
12 recovered from the body of Mr Kelly with test bullets
13 fired from the rifle submitted to his department,
14 Dr Martin satisfied himself that the bullet that hit
15 Mr Kelly was fired from the rifle whose number is that
16 of Lance Corporal F. In his statement to the
17 Widgery Inquiry, Lance Corporal F said after he had
18 taken cover at the south end of Kells Walk he saw a man
19 who was attempting to throw a fizzing nail bomb from
20 behind the rubble barricade, fired one aimed shot at him
21 and he fell. The nail bomb did not explode.
22 Lance Corporal F did not see what happened to it. This
23 was the first shot that he fired and the only shot that
24 he fired at is a target at ground level in
25 Rossville Street.
1 If the trajectory of this shot is accurately marked
2 on his photograph, P7, it was directed at the exact
3 location in which Mr Kelly can be seen lying on the
4 ground in the photograph taken after that had happened.
5 We suggest that in these circumstances, whether or
6 not Dr Martin's approach to the exercise of bullet
7 comparison could have been more rigorous, as
8 Mr Callaghan suggested in his oral evidence, there can
9 be no real doubt that Lance Corporal F fired the bullet
10 that killed Mr Kelly. Issues that remain are whether
11 the shot was aimed at Mr Kelly or at someone else,
12 whether the bullet hit anyone else before it hit
13 Mr Kelly, whether anyone standing near Mr Kelly had been
14 attempting to throw a nail bomb, and whether Mr Kelly or
15 anyone near him had been behaving in any way that caused
16 or could have caused Lance Corporal F to mistake him for
17 a nail bomber.
18 The only activity known to have occurred in the area
19 of the rubble barricade that would appear capable of
20 having induced in Lance Corporal F a mistaken belief
21 that the man at whom he fired was holding a nail bomb is
22 the throwing of stones. However, as the Lawton team
23 recognise in their submissions, Lance Corporal F's
24 evidence that the object that he saw in the man's hand
25 was fizzing tells against the hypothesis that he mistook
1 a stone for a nail bomb. Nevertheless, it is in
2 principle possible, though it is for the Tribunal to
3 decide whether it is likely, that Lance Corporal F fired
4 in the mistaken belief that the man was holding a nail
5 bomb and either was mistaken also in his belief that the
6 object was fizzing or invented that detail after the
7 event in an attempt to make his account sound more
8 credible.
9 In these circumstances, although stone throwing
10 (where recognised as such) is not relied upon by the
11 soldiers as justification for opening fire, it is
12 relevant for the Tribunal to consider whether Mr Kelly
13 (or anyone standing close to him) was throwing stones
14 before he was shot. We refer in our submissions to the
15 relevant submissions of the interested parties to that
16 question and suggest that in particular it will be
17 necessary for the Tribunal to decide whether or not the
18 evidence of Danny Craig, and Patrick Norris, both of
19 whom said Mr Kelly was about to throw a stone when he
20 was shot, is reliable.
21 With regard to the possibility that an unidentified
22 person standing in front of Mr Kelly was also shot who
23 could have been the nail bomber at whom Lance Corporal F
24 said that he aimed and fired, we say this: insofar as
25 the Lawton team rely upon the evidence of civilian
1 witnesses to establish that someone else was shot at the
2 same time as Mr Kelly, the Tribunal will have to
3 consider whether the evidence of those witnesses in fact
4 describes an additional casualty or whether it is more
5 likely, even if in some respects confused or mistaken,
6 to relate to one of the other known casualties or to
7 someone who had not been injured or even to Mr Kelly
8 himself.
9 Secondly, the hypothesis that there was an
10 additional casualty requires the Tribunal to consider
11 how such a casualty could have been removed or removed
12 himself from the scene and whether there is any
13 convincing evidence of a body other than that of
14 Mr Kelly being carried away through Glenfada Park North.
15 Thirdly, it is also necessary to consider how and
16 why the fact that someone else had been shot in the
17 presence of numerous witnesses and presumably unless the
18 injury was trivial, required either medical treatment or
19 burial, could have failed to come to light at an earlier
20 stage. While a desire not to reveal the activities of
21 nail bomber might provide a motive for some witnesses to
22 remain silent, those who saw the casualty would not
23 necessarily have known what he had ben doing before he
24 was shot; nor will the Tribunal lightly assume that all
25 witnesses, including priests and journalists, will have
1 been prepared to conceal the truth.
2 Lastly, on the evidence of the experts, contact with
3 the soft tissue of another person's body before it hit
4 Mr Kelly is a possible cause of the bullet's
5 instability, but not the only possible cause. If the
6 Tribunal is not persuaded that the bullet killed or
7 injured anyone other than Mr Kelly, it may think that
8 the possibility that the bullet had been deflected on
9 contact with the outer clothing of another person before
10 it hit Mr Kelly deserves consideration.
11 I turn then to the case of Hugh Gilmore, who had two
12 wounds on his left forearm and wounds on the left and
13 right side of his chest. There are differing views held
14 on the one hand by Dr Carson, who considered Mr Gilmore
15 was struck which a single bullet passing from left to
16 the right, and on the other by Dr Shepherd and
17 Mr O'Callaghan, who considered that he was struck by two
18 bullets, one of which struck the right side of chest and
19 the other of which struck the left forearm. In their
20 view, the bullet that caused the chest wound must have
21 come from a point to the right of the chest, but due to
22 the flexibility of the forearm, there was no way of
23 indicating from where the shot caused the damage to
24 Mr Gilmore's arm originated.
25 It is unclear where Mr Gilmore was when he was hit.
1 At the time of his death he was lying at the southern
2 gable of Block 1 of the flats, but he was probably shot
3 either at the rubble barricade or while running south in
4 front of Block 1. May we have on the screen P662. It
5 is the well-known photograph which shows him running
6 past Block 1, perhaps already having been shot, although
7 the photograph is in no way conclusive in that respect.
8 We then set out in our submissions at some length
9 the evidence of the principal witnesses to Mr Gilmore's
10 shooting. We suggest that the photographic sequence and
11 the related evidence of Robert White and Liam Mailey
12 suggest that he was shot shortly after Mr Kelly, at
13 a time when the Anti-Tank platoon had recently moved
14 into place at the Kells Walk wall. There is nothing in
15 the photograph to indicate that the other casualties at
16 the rubble barricade had necessarily fallen before
17 Mr Gilmore was fatally wounded.
18 In addition, no civilian witness has given clear
19 evidence of having seen the other casualties before
20 seeing Mr Gilmore shot. It is therefore likely, we
21 suggest, that Mr Gilmore was shot before, or at
22 approximately the same time as Michael McDaid,
23 William Nash and John Young. Several witnesses,
24 including Eamonn Melaugh, Frankie Mellon and Sean
25 McDermott, have indicated prior to seeing Mr Gilmore
1 shot, they had become aware of a youth (presumably
2 Mr Dillon) being arrested on the wasteground which led
3 to a group of people surging north towards the arresting
4 group. If Mr Gilmore was in this group this might
5 explain references to his presence north of the rubble
6 barricade, for example in Geraldine Richmond's evidence
7 to the Widgery Inquiry.
8 Much of the contemporaneous civilian evidence, for
9 example that of Mr Melaugh, Mr Mellon, Mr McDermott and
10 James Greene, but not of Ms Richmond, suggest Mr Gilmore
11 was shot whilst standing at or near the rubble
12 barricade, possibly facing north. However, the same
13 witnesses, except Mr Green, have given evidence to this
14 Inquiry that Mr Gilmore was running south when shot. If
15 that is right, it is possible that he turned prior to
16 being hit. Mr Mellon told this Inquiry he had seen him
17 looking north over his shoulder at some points as he
18 ran. However, Mr Mellon and other similar witnesses
19 have implied in their evidence that at the time he was
20 hit Mr Gilmore was running in and facing a southerly
21 direction. Geraldine McBride said in terms to this
22 Inquiry this was so.
23 Most of the witnesses whom we have been considering
24 have said Mr Gilmore was at or south of the barricade
25 when he was struck. But Ms Richmond in 1972 and
1 Mr Melaugh in his evidence to this Inquiry have said mor
2 implied Mr Gilmore was to the north of the barricade
3 when struck nor when first struck. The Tribunal will
4 have to consider which is the most reliable evidence as
5 to Mr Gilmore's position and movements when he was hit.
6 There is no evidence that he was armed. The
7 question whether he was throwing stones is clearly
8 related to the question of whether he was running south
9 or standing facing north. Although several civilian
10 witnesses said they had seen Mr Gilmore throwing stones
11 prior to his being shot, only Mr Green speculatively in
12 his oral evidence, contrary to his written statement,
13 has suggested Mr Gilmore had a stone in his hand when he
14 was shot. Other witnesses who have said Mr Gilmore was
15 standing at or near the rubble barricade when he was
16 shot, have agreed that he had nothing in his hand.
17 In our submissions we make some observations as to
18 the likelihood that particular soldiers were
19 responsible. We suggest the Tribunal may find it
20 difficult or impossible on the soldiers' evidence
21 satisfactorily to explain the shooting of Mr Gilmore,
22 all the more so if Dr Shepherd and Mr O'Callaghan's view
23 prevails, that two bullets hit the deceased.
24 However, if assumptions as to the accuracy of the
25 soldiers' evidence are discarded and the Tribunal either
1 rejects the evidence of some of the soldiers as to the
2 direction and timing of admitted shots, or concludes
3 other shots have been fired in this sector that have not
4 been acknowledged, clearly other possibilities arise.
5 We suggest that the nature of Mr Gilmore's injuries
6 may assist in determining whether the fatal shot is more
7 likely to have been fired from the east or the west side
8 of Rossville Street, but only if the Tribunal is able to
9 decide both whether the bullet entered the left or the
10 right side of the chest and in which direction
11 Mr Gilmore was facing when it was fired.
12 I turn now to the cases of Michael McDaid,
13 William Nash and John Young, who were all shot dead at
14 or very close to the rubble barricade. Whilst there are
15 no photographs before the Tribunal which show the bodies
16 of any of these three casualties lying where they fell,
17 we say, and suggest that the man seen in the ABC film at
18 video 48 raising his arm behind the western section of
19 the rubble barricade is almost certainly Alexander Nash,
20 who said in his oral evidence to the Widgery Inquiry
21 that he saw his son William lying dead "just in the
22 middle of the wee barricade," ran out to him and put his
23 hand up before being shot himself. He saw two other
24 bodies as well. He said that the three bodies were
25 lying together with his son in the middle, within one or
1 two feet of one another with their heads on stones and
2 their feet on the ground.
3 He confirmed that the other two bodies of those were
4 Mr McDaid and Mr Young. We suggest in combination with
5 the ABC footage, this suggests that all three casualties
6 fell somewhere behind the western section of the rubble
7 barricade.
8 In relation to the entry and exit wounds, the
9 reports of Dr Shepherd and Mr O'Callaghan are not,
10 I think, controversial. They find that a bullet struck
11 Mr McDaid in his left cheek and penetrated his neck and
12 right chest before exiting at the back.
13 A bullet struck Mr Nash on the right side of his
14 chest. The track of the bullet was downwards and from
15 front to back. Injuries to the right forehead, jaw,
16 neck and shin were consistent with minor blunt trauma,
17 due to a collision or fall.
18 Finally, a bullet struck Mr Young in the left cheek,
19 traversed the neck and exited through the back. The
20 path of the bullet, past the base of the skull and the
21 vertebrae of the neck and upper chest, suggesting
22 strongly that Mr Young's head was tipped backwards when
23 he was shot. Injuries to the cheeks, chin and hands
24 were consistent with a collapse or other causes of minor
25 blunt trauma.
1 Again, in the evidence of Dr Martin and Dr Lloyd,
2 regarding firearm residue, we invite the Tribunal to
3 conclude the results obtained by Dr Martin should not be
4 relied upon as evidence that any of the three deceased,
5 or anyone close to them when they were shot, was
6 handling or using a firearm.
7 As to timing, there is evidence to show that
8 Mr McDaid, Mr Nash and Mr Young were shot after Mr Kelly
9 had been shot and his body carried towards the gable end
10 of the east block of Glenfada Park North. The Tribunal
11 will no doubt wish to consider the extent to which the
12 photographic evidence assists in establishing the
13 timings of the shootings of McDaid, Nash and Young in
14 relation to the movement of Mr Kelly's body.
15 May we have on the screen EP23.10, Liam Mailey's
16 photograph, of which this is one in the series. It
17 shows the crowd around Mr Kelly's body near the gable
18 end in Glenfada Park North. If we turn to EP23.11, the
19 body appears to lifted and moved after EP23.11 was taken
20 and before EP23.12 was taken.
21 If we go back, please, to EP23.11, Mr Mailey said
22 that the youths we can see on the right-hand side of the
23 photograph pointing to the east were trying to draw
24 attention to a hysterical youth. On his interpretation
25 Father Bradley was shown in EP23.12, going to comfort
1 the youth (who was wearing coloured jeans, and is shown
2 slightly to the right of centre) and who was identified
3 by Denis McLaughlin as being himself.
4 But in his oral evidence Father Bradley said to the
5 Inquiry that he thought EP23.12, at which we are now
6 looking, shows him moving to the corner of the gable end
7 after he had been told that someone had been shot at the
8 rubble barricade. He believed he was called back to
9 assist the hysterical man after he had seen the bodies
10 at the barricade and that he moved between the two
11 positions on a number of occasions.
12 Professor O'Keefe also thought he had seen bodies on
13 the barricade by the time that EP23.12 was taken. The
14 movement of the group carrying Mr Kelly's body suggests
15 Ciaran Donnelly took EP27.11 shortly after Mr Mailey had
16 taken EP23.12. A question arises as to whether or not
17 the man seen in profile in this photograph, with his
18 back to the south gable wall of the east block of
19 Glenfada Park North, has been correctly identified as
20 Mr Nash. If so, it shows that he at least had still not
21 been shot by the time the body of Mr Kelly had been
22 carried around the southwest corner of the east block of
23 Glenfada North.
24 As is recognised in the submissions of the
25 interested parties, there is much confusion,
1 understandably, in the civilian evidence as to the
2 movements of Mr McDaid, Mr Nash and Mr Young immediately
3 prior to the time when they were shot, as to their
4 position and orientation when they fell and as to the
5 sequence in which they fell. There is also conflicting
6 evidence as to whether any of them had been throwing
7 stones. The Tribunal will have, in our submission, to
8 consider to what extent it is possible to reach
9 conclusions about these matters.
10 We make, in our submission, some observations in
11 relation to the identity of the soldiers who could have
12 been responsible for shooting these casualties. We
13 suggest that the Tribunal may think that if the evidence
14 of the soldiers is assumed to be approximately accurate
15 as to the direction and timing of their fire and
16 complete as to the number of shots fired, the shots most
17 likely to have caused the deaths of Mr McDaid, Mr Nash
18 and Mr Young are the four shots fired by Corporal P at
19 an alleged gunman. The shot fired by Lance Corporal J
20 at his first alleged nail bomber is also a possibility.
21 However, as in the case of Mr Gilmore, if these
22 assumptions as to the accuracy of the soldiers' evidence
23 are discarded and the Tribunal either rejects the
24 evidence of some of the soldiers as to the direction and
25 timing of their admitted shots or concludes that other
1 shots were fired in this sector, for example by
2 Lance Corporal F or Private H that have not been
3 acknowledged, then other possibilities will obviously
4 arise.
5 I turn then to the case of Alexander Nash.
6 Mr Bennett described Mr Nash's wound,
7 Mr Alexander Nash's wound as a through and through
8 gunshot wound to the left arm and "a graze (?? from
9 a rubber bullet) on the left side of his chest."
10 Mr Bennett said that the bullet passed from right to
11 left, adding that "as there is relatively little muscle
12 destruction this was probably a low rather than a high
13 velocity missile".
14 Dr Shepherd and Mr O'Callaghan said in their report
15 to this Inquiry that on the evidence available no
16 comment could be made concerning the nature of the
17 projectile that hit Mr Nash's arm. In the absence of
18 a more detailed description of the chest injury, they
19 were unable to comment on the suggestion that it had
20 been caused by a baton round, or on whether the injury
21 was caused by the same projectile as struck Mr Nash's
22 arm.
23 In our submissions we summarise the evidence of
24 Mr Nash to the Widgery Inquiry and that of a number of
25 other relevant witnesses and suggest that the evidence
1 of Father O'Keefe, Father Bradley and others suggest
2 that Mr Nash ran to the rubble barricade very shortly
3 after his son had been shot, at a time when members of
4 the Anti-Tank Platoon would still have been at the walls
5 at the south end of Kells Walk.
6 As we have seen, the ABC film suggests that he was
7 behind the western section of the rubble barricade when
8 he was shot. There is no evidence that Mr Nash was
9 carrying a weapon or throwing stones when he was shot or
10 before that time.
11 In his RMP statement, Captain 021 said that he saw
12 an old man fall behind the rubble barricade after having
13 been struck by a baton round. When the shooting stopped
14 the old man rose to a sitting position and waved to the
15 soldiers to come forward to him. Eventually they did
16 so, and a Pig stopped just beyond the barricade. The
17 old man went off in the direction of the Glenfada Flats.
18 In a statement that he apparently made to the
19 Widgery Inquiry, although he expressed reservations
20 about this in his statement to this Inquiry, Captain 021
21 said that the baton round was one of a number fired by
22 soldiers on the west side of Rossville Street, and that
23 it hit the old man on the cheek and was deflected on to
24 his shoulder.
25 The old man was wearing a grey peaked cap and grey
1 jacket. In his statement to this Inquiry, Captain 021
2 said that he did not now remember the old man. Although
3 there is no evidence that Mr Nash was hit in the cheek
4 or shoulder, the Tribunal may think there is
5 a sufficient correlation between Captain 021's evidence
6 and the known facts concerning Mr Nash, to suggest it is
7 highly probable that he was hit by a baton round.
8 If so, it appears likely that the baton round caused
9 the injury to the left side of the chest, as suggested
10 by Mr Bennett. If the Tribunal also finds reliable
11 Captain 021's evidence that the baton round was fired
12 from the west side of Rossville Street, this would
13 suggest, on our analysis, that the evidence of the
14 soldiers who fired baton rounds towards the barricade,
15 that it was probably fired by either Private 17 or Lance
16 Corporal 18.
17 The question arises whether a soldier or
18 a paramilitary gunman fired the shot that hit Mr Nash in
19 the left arm. As to the former possibility, we point
20 out that none of the descriptions given by the soldiers
21 of the targets at whom they fired matches Mr Nash. And
22 we say that if a soldier shot Mr Nash it is unlikely
23 that the Tribunal will be able to identify him. The
24 four shots fired, on his evidence, by Corporal P at an
25 alleged gunman and the shots fired, on his evidence, by
1 Lance Corporal J at an alleged nail bomber are the only
2 shots, other than the shots fired by Lance Corporal F
3 that appear to have killed Mr Kelly, that on the
4 soldiers' evidence, were fired at targets in the
5 approximate position in which Mr Nash is likely to have
6 been located.
7 However, as in the previous cases, if assumptions as
8 to the accuracy and completeness of the soldiers'
9 evidence are discarded, it is possible that other
10 soldiers could have fired the shot that hit Mr Nash.
11 The possibility that a paramilitary gunman may have
12 shot Mr Nash arises principally from the evidence of
13 Private U and Kieran Gill. In summary, the evidence of
14 Private U was that at some point, having fired his shot,
15 he saw on older man who was assisting a youth lying
16 wounded on the rubble barricade. The youth appeared to
17 be alive, but had a bloodstain on his shirt. Private U
18 then either saw the doors of the southwestern entrance
19 to the Rossville Flats open, or he saw an arm holding a
20 pistol emerge from doors that were already open. He did
21 not fire as he could not be sure that he would not hit
22 people who were to the south of the doors. Instead he
23 warned his colleagues on the western side of
24 Rossville Street of the potential danger. He saw the
25 pistol jerk, and thought that a bullet from it struck
1 the ground between the doors of the flat and the men on
2 the barricade, and then ricocheted into the older man's
3 right arm. The man with the pistol fired another shot.
4 Private U saw the youth's head jerk, and he then slumped
5 into the older man's arms. He did not move again. The
6 old man then called on Private U to assist him. Private
7 U sought permission from CSM Lewis, who told him that he
8 was waiting for a vehicle. The old man then stood up
9 and moved off. Private U told the Royal Military Police
10 that he later saw a television interview with the older
11 man in which he said the Army had injured him and killed
12 his son.
13 We refer also to the evidence of Mr Gill, who became
14 involved with the Insight team as a local stringer as
15 they worked on their article on Bloody Sunday. He gave
16 evidence that in the course of this work he and
17 Peter Pringle developed a theory about Mr Nash being
18 shot by a low velocity weapon. Mr Gill received
19 information from a Provisional IRA source that a member
20 of the Official IRA had fired a revolver on
21 Bloody Sunday. According to him, he and Mr Pringle
22 door-stepped the Official IRA volunteer at his home,
23 probably during the period in which the Widgery Inquiry
24 was sitting.
25 Mr Gill said something like "so you shot Mr Nash!"
1 The man looked horrified and admitted that he had fired
2 three or four shots with a revolver around a door of the
3 flats. Mr Gill and Mr Pringle said to him that he might
4 have shot Mr Nash in the arm. The Tribunal will note
5 that on Mr Gill's account the suggestion that the
6 Official IRA volunteer had shot Mr Nash came from
7 Mr Gill and the Official IRA volunteer made no admission
8 to that effect.
9 We respectfully remind the Tribunal that Mr Gill
10 said in a supplementary statement that he approached the
11 Official IRA volunteer on 1st May 2002. The man said he
12 had no recollection of the conversation described by
13 Mr Gill in his first statement and denied he had fired
14 a revolver from the door of the flats on Bloody Sunday.
15 We also observe it is clear that Mr Pringle knew of
16 the theory that Mr Nash had been shot by a paramilitary
17 gunman but not that he knew of it from a source other
18 than the evidence given to the Widgery Inquiry, and we
19 refer to his evidence in support of that proposition.
20 When Mr Pringle gave oral evidence, Mr Gill had not
21 yet made his first witness statement, and so Mr Gill's
22 account was not put to Mr Pringle. However, in written
23 comments provided to the Inquiry in May 2003, Mr Pringle
24 said that he had "no recollection of the incident
25 Mr Gill relates" and could find no reference in his
1 notebooks to "such a meeting with the Provisionals or
2 the Officials."
3 The Tribunal will also recall that OIRA 1 said in
4 his oral evidence to this Inquiry that he was the man
5 whom Mr Gill had approached about this matter in 2002,
6 but he denied Mr Gill had spoken to him in 1972, to
7 suggest that he had fired a shot from the doorway that
8 may have struck Mr Nash. He also denied he had been
9 involved in any such incident. His evidence was that
10 throughout the main incidents of Bloody Sunday, he was
11 in areas to the west of Rossville Street.
12 If his evidence, which in this respect is consistent
13 with the disputed note, PIN437, is accurate, he would
14 not have been in or near the Rossville Flats when
15 Mr Nash was shot. It is for the Tribunal to consider
16 how this conflict of evidence is to be resolved, if it
17 can be, and to determine, if it can, whether Mr Nash was
18 shot by a soldier or by a paramilitary gunman.
19 I come then to the case of Kevin McElhinney.
20 According to the report of Mr Shepherd and
21 Dr O'Callaghan, in his case the bullet entered the left
22 buttock, on a track from right to left and upwards, was
23 deflected by the pelvis onto a nearly vertical track.
24 It then exited and re-entered the body on the left side
25 of the chest and finally exited beneath the left
1 shoulder. This track could have been achieved if Mr
2 McElhinney had been bending over on all four and the
3 shot was direct from behind and to his right. Professor
4 Marshal differed from Dr Shepherd and Mr O'Callaghan
5 over the behaviour of the bullet once it entered the
6 body, but the resolution of that issue will not assist
7 in determining who shot Mr McElhinney.
8 We refer in our submissions to the evidence of
9 Dr Martin and Dr Lloyd with regard to firearm residues
10 and in this case, as in others, invite the Tribunal to
11 conclude the results obtained cannot be relied upon as
12 evidence that Mr McElhinney, or anyone close to him when
13 he was shot, was handling or using a firearm.
14 There was evidence from Daniel (Alex) Morrison, who
15 said that he and Mr McElhinney had been throwing stones
16 from the rubble barricade. However, we observe that
17 there is a considerable amount of evidence to suggest
18 that Mr McElhinney was fatally wounded while crawling
19 towards the southwestern door of Block 1 of the
20 Rossville Flats, and if that is so, the question whether
21 or not he had previously been throwing stones at the
22 barricade appears irrelevant to the question whether or
23 not there is any justification for his shooting since no
24 possibility could have arisen of a stone in his hand at
25 the time of the shooting being mistaken for a lethal
1 weapon.
2 May we have on the screen P673.3. So far as
3 photographic evidence is concerned, Mr McElhinney is
4 said to be the figure shown standing on the eastern
5 section of the rubble barricade in P673.3, of which
6 there is a better version elsewhere. This
7 identification is open to doubt. Mr McElhinney was
8 wearing a brown striped suit and the individual standing
9 on the barricade in this photograph appears to have been
10 wearing trousers that were darker than his jacket.
11 May we have on the screen EP27.11. It is also
12 suggested Mr McElhinney is the figure shown crouching or
13 kneeling in the background in the extreme right-hand
14 edge of EP27.11. If correct, this might have
15 implications for the time of his shooting, but there is
16 no evidence to confirm the identification and the
17 Tribunal might think the image is insufficiently clear
18 for any certain identification to be possible.
19 We refer in our submission to the evidence of some
20 of the principal witnesses who described a man who was
21 or may have been Mr McElhinney crawling or running
22 towards the doors of Block 1, or falling or being
23 dragged into the entrance into Block 1 after being shot.
24 We have a number of observations in relation to that
25 evidence. There are issues as to whether the man
1 described in the evidence of civilian witnesses has been
2 correctly identified as Mr McElhinney and they are
3 discussed extensively in the submissions of the
4 interested parties.
5 Subject to issues as to identification, there is
6 a general consensus among the civilian witnesses that
7 Mr McElhinney was shot as he approached the southern
8 entrance to Block 1 of the flats. It appears probable
9 he had come from the rubble barricade and that he
10 crawled for at least part of the distance. All the
11 witnesses who saw him as he crawled to the door of the
12 flats have said that he was unarmed. No civilian
13 witness has said that he was carrying anything at the
14 moment when he was shot.
15 Some of the witnesses refer to seeing a body being
16 dragged into the flats, whereas others describe a youth
17 falling or crashing through the doors. Some witnesses
18 saw only one person moving from the barricade to the
19 flats, whereas others saw two. Gerard Grieve, Patrick
20 O'Hagan and Liam Mailey have all given evidence at some
21 stage that up to five people had run into the flats
22 before the person who was shot.
23 There are some discussions Mr McElhinney was shot
24 twice. Professor O'Keefe and Barry Liddy both thought
25 that when they saw the youth crawling towards the flats
1 he was already injured in his leg. Helen Johnston saw
2 the youth jerk twice, once when equidistant between the
3 barricade and the doorway, and the second time when at
4 the entrance to the flats. Clifford Peter Lancaster
5 also saw the youth jerk twice. If he jerked, it does
6 not necessarily follow that he had been shot.
7 We suggest there is no evidence that indicates
8 anyone other than a soldier shot Mr McElhinney. As to
9 the identity of the soldiers who could have been
10 responsible for shooting him, three soldiers of the
11 Composite Platoon have given evidence that they fired
12 from Kells Walk at one or other of two men who were
13 crawling in front of Block 1 of the flats towards the
14 doors at the southwest corner of that block.
15 Sergeant K fired one shot, private L, according to
16 the evidence he gave in 1972, fired two, and Private M
17 fired two shots. It appears reasonable to conclude that
18 these three soldiers were describing the same two men.
19 These are the only shots described by the soldiers
20 that could (on their evidence) account for a man being
21 hit on the eastern pavement of Rossville Street as he
22 approached the entrance to Block 1 of the flats from the
23 north.
24 They are the only shots described by the soldiers
25 that could (on their evidence) account for a man being
1 hit from behind or when crawling.
2 The broad possibilities therefore for the Tribunal
3 to consider are firstly that one of Sergeant K,
4 Private L and Private M fired the shot that hit
5 Mr McElhinney and that he was one of the two crawling
6 men described by them. Despite their evidence that one
7 or both of the crawling men was handling a weapon.
8 Secondly, one of Sergeant K, Private L and Private M
9 fired the shot that hit Mr McElhinney, but that he was
10 not one of the two crawling men described by them,
11 despite their evidence that they did not hit anyone
12 other than the two crawling men.
13 Thirdly, that none of the shots fired by Sergeant K,
14 Private L and Private M hit Mr McElhinney, despite the
15 absence of other military evidence that could account
16 for his shooting.
17 We consider in our submissions the evidence of the
18 soldiers of the Composite Platoon as to the clothing
19 worn by the two crawling men but suggest there is
20 insufficient consistency and clarity in the evidence to
21 enable the Tribunal to determine with any confidence
22 which, if either, of these men, was Mr McElhinney.
23 Finally, we summarise the evidence of Sergeant K,
24 Private L and Private M as to which of the three hit his
25 intended target or targets. Should the Tribunal
1 determine it is likely that one of those three shot
2 Mr McElhinney, it will have also to consider whether
3 that evidence enables it to reach any conclusion as to
4 which of the three soldiers is most likely to have fired
5 the fatal shot.
6 That brings me to Sector 4. The Tribunal is faced
7 with an acute difficulty in dealing with the events of
8 Glenfada North and Abbey Park. The difficulty is the
9 familiar one, that evidence of the soldiers concerned
10 scarcely connects with that of the civilians on the
11 critical question as to how it came about that four
12 people were killed and five wounded -- assuming that
13 Danny Gillespie was wounded -- in those two places.
14 The accounts given by those who fired in
15 Glenfada Park are that they were met by gunmen and nail
16 bombers and a petrol bomber and in the case of Soldier
17 H, a sniper at a window. On their evidence the soldiers
18 fired at these paramilitaries and were justified in
19 doing so; some of the evidence is of a full-scale riot.
20 The evidence of a substantial number of civilians is
21 that there was panic and pandemonium as the soldiers
22 came in and, indeed, before (since firing had been
23 taking place in Rossville Street) people were being
24 killed and Michael Kelly's body was brought in from the
25 barricade. But no civilian gives evidence of someone
1 throwing or making to throw a bomb, whether petrol or
2 nail, or holding a rifle in the vicinity of those who
3 were killed and wounded.
4 I am told it might be appropriate to have a break.
5 LORD SAVILLE: How much longer do you want to go on this
6 afternoon, how is your progress generally?
7 MR CLARKE: I would like to go on for another 20 minutes.
8 (3.35 pm)
9 (A short break)
10 (3.45 pm)
11 MR CLARKE: The effect of what I have just been saying is
12 that it is not possible to take a body of civilian
13 evidence and a body of military evidence and conclude
14 that they are referring, however imperfectly, to the
15 same incident. G, for instance, claims to have fired
16 three shots at riflemen in the southwest corner and shot
17 at least one of them. Several people were shot in the
18 southwest corner, but no civilian says that there was
19 a rifleman there at the time when the shooting took
20 place.
21 It is possible, of course, to say that G is
22 a candidate for the soldier who shot one or more of
23 those who died or who were wounded in that corner, but
24 beyond that, it is not easy to go.
25 Quite apart from the incongruence between the
1 accounts of what occurred, there is a problem which
2 I indicated in opening and which remains in relation to
3 the number of shots. 29 shots were fired, on their
4 account, by members of the Anti-Tank Platoon in
5 Glenfada Park; 22 of those were fired by H; 19 at
6 a window, on his account to Lord Widgery, at the south
7 of Glenfada Park.
8 If the Tribunal were to reject his evidence as to 18
9 of the 19 shots in the sense that it were to conclude,
10 either that they were not fired in Glenfada Park at all,
11 or not in the manner in which he described, there are 18
12 shots wholly unaccounted for, either by H or by anyone
13 else. It is not even certain that these 18 shots must
14 have been fired by H.
15 If, of course, the Tribunal accepts that these
16 bullets were fired in Glenfada Park North, the position
17 is different. If one omits the 19 shots, one of which
18 went into a window at number 57 on H's account, there
19 are ten shots left. These have to accommodate the
20 deaths of four people in the open air and the wounding
21 of five or four in Glenfada Park or Abbey Park. This is
22 numerically possible, but on the evidence of the firers,
23 they claimed no more than six hits in the open air.
24 May we please have on the screen CS6.273. This is
25 a version of a table that I prepared in opening and
1 appears also cited in the Lawton team's submissions, by
2 reference to what I said.
3 One will see from it that there are 29 shots, but
4 the number of hits claimed is seven. But one of those,
5 on H's evidence, would be a shot of a man behind the
6 window. We know that one bullet went into the bedroom
7 at number 57. As I say, there are nine victims in the
8 open air but there are only six claimed hits in the open
9 air, making a shortfall of at least three.
10 It is, of course, possible the same bullet killed
11 William McKinney and wounded Joseph Mahon. It is
12 possible that Danny Gillespie was wounded by a bullet
13 that hit somebody else, or not wounded at all. It is
14 possible that the same bullet hit Joseph Friel and
15 Michael Quinn, although the Tribunal may think that is
16 somewhat implausible. But the bullet that hit
17 Mr O'Donnell on the east side could not have hit any of
18 the other known dead and wounded.
19 So it would be just possible in this way to make up
20 the numbers so as to reach a figure of nine hits. The
21 difficulty with such a calculation is that the
22 arithmetic assumes that each hit strikes not only
23 a different primary victim, but also in three cases
24 a secondary victim, unless Gillespie was not wounded at
25 all.
1 But Jim Wray was, without doubt, shot twice. This
2 might be solved if Gillespie was not a victim at all and
3 there was a different shoot-through, for instance, if
4 Gerard McKinney and Gerard Donaghy were shot by the same
5 bullet. But the Tribunal may think that this series of
6 shoot-throughs or two people being shot by the same
7 bullet becomes increasingly implausible.
8 Soldier G raised the possibility that a bullet went
9 through one person and into another in relation to the
10 two gunmen whom he saw in the southwest corner.
11 Soldier F accepted, in his evidence to this Inquiry,
12 that one of his rounds may have hit Joe Mahon and
13 William McKinney. However, none of the soldiers have
14 stated they saw any civilian (other than the target at
15 which they fired) react as if they had been hit and
16 there is much in their contemporary evidence that is
17 inconsistent with this premise.
18 Soldiers E and G both explicitly stated there was no
19 civilian other than their target in their line of sight.
20 Soldier F told Lord Widgery that there were only three
21 people, the group on which he and Soldier G fired, in
22 the car park when he arrived, and between the time when
23 he fired and the arrests that he made he only saw some
24 ambulance people in the courtyard.
25 Soldier H's evidence leaves the possibility of
1 a shoot-through casualty more open, except in relation
2 to his first shot which, on his Widgery account, went
3 into a wall. He has not however given evidence that
4 indicated that he saw someone (other than his intended
5 target) hit by his shots.
6 Even with such double-counting and shots hitting
7 more than one person, there is a problem. It is now
8 clear that Gerard Donaghy and Gerard McKinney were shot
9 in Abbey Park, the Tribunal may think. That required at
10 least one, if not two, bullets.
11 One, the bullet that landed in Gerard Donaghy's hip,
12 came from G. If two were fired it seems highly likely
13 that G may have fired the second. If so, either his
14 account of firing three bullets in all in Glenfada Park
15 is wrong because he only fired one or, at the highest,
16 two if he only fired one in Abbey Park, or he fired more
17 bullets than he accounted for.
18 Further, there is considerable evidence of a further
19 shot being fired in Abbey Park towards Evelyn Lafferty
20 (Evelyn Mahon as she became). If that is so the
21 position on the arithmetic is made worse. If there were
22 additional casualties in Glenfada Park, the situation
23 becomes worse still. As the Tribunal will find, if it
24 comes to tabulate the hits and attempts to allocate them
25 to known victims and any unknown ones, the numbers do
1 not appear to work.
2 The next problem is that the evidence of the
3 soldiers does not readily appear to accommodate the
4 known dead and wounded. Mr O'Donnell was shot on the
5 east side in circumstances where the only person who
6 said that he fired on that said was E, on whose account
7 no-one in Mr O'Donnell's position was shot. Those who
8 were shot in the southwest: Mr Wray, Mr Quinn, Mr Friel,
9 possibly Mr Gillespie, or the south: Mr Mahon and
10 William McKinney could have been shot by any of F, G and
11 H, in the sense that their evidence was of firing in
12 those directions, but it may not be possible to say who
13 shot whom.
14 Then there is what may appear to the Tribunal
15 a remarkable circumstance, that all those persons
16 identified as being shot dead or wounded, have not been
17 suggested to have been themselves engaged in unlawful
18 activities, and yet in each of these nine or eight
19 cases, the soldiers who came into Glenfada Park and
20 Abbey Park appear to have missed their intended target,
21 despite the short distances over which their shots must
22 have travelled. Indeed, the soldiers appear to have
23 missed all their actual targets unless there are unknown
24 casualties who have never come to light. But if there
25 were unknown casualties, the problem with the bullet
1 count increases proportionately.
2 Lastly, there is the problem of the entry point of
3 the bullets. Leaving aside Mr Gillespie, those hit in
4 the southwest of Glenfada Park North were either hit in
5 the back (in the case of Jim Wray and William McKinney);
6 in the right hip (Joe Mahon); the right cheek,
7 (Michael Quinn); or across the chest from right to left
8 (in the case of Joe Friel).
9 The wounds of Mr Friel and Mr Quinn are consistent
10 with them having been shot from behind and to the right,
11 but none of these are positions that tally readily with
12 the description of the positioning of those at whom the
13 soldiers fired. This is of course another way of saying
14 that if the soldiers' targets were as described, they
15 appear to have missed them with the shots in question.
16 The Tribunal was invited to find, by the Lawton
17 team, that it is simply not in a position to form firm
18 conclusions as to the exact events which occurred, but
19 that there is cogent evidence that there were
20 individuals in Glenfada Park North who were armed with
21 rifles and nail bombs who were reasonably perceived as
22 a threat and who were probably close to those who were
23 injured or killed, and that there were additional
24 casualties to the known dead and wounded.
25 The extent to which the latter is or may be the case
1 is considered in a section of our submissions which is
2 entitled: "Report on Paramilitary Activities in Sector
3 4." To the extent of course that the Tribunal finds the
4 evidence so confusing that it cannot form any firm
5 conclusion, it should, and will no doubt, say so. In the
6 light of the considerations that I have mentioned, the
7 Tribunal may think it appropriate to ask itself
8 initially two questions.
9 Firstly, to what extent can we rely upon the
10 testimony of the soldiers in this sector? Secondly, to
11 what extent are we persuaded that there was any relevant
12 paramilitary activity going on at the time when the
13 Paras came in?
14 These are of course broad questions which have no
15 doubt to be answered by looking at specific issues and
16 specific evidence. Even if, for instance, the Tribunal
17 was of the opinion that a full and truthful account had
18 not been given by all of the soldiers of what had
19 occurred, it would not necessarily follow that all of
20 their evidence was to be rejected.
21 As to the first question, the Tribunal might take
22 the view that the matters to which I referred, together
23 with the discrepancies in the statements of the
24 soldiers -- both as between themselves and other
25 soldiers and as between earlier and later statements of
1 the same individual -- the lies (if it were to find them
2 to be such, that may have been told by any of the
3 soldiers) are of such significance that it could
4 conclude that a positively untruthful account has been
5 given by the soldiers concerned, or some of them, and
6 that this has been so because the true facts are that
7 there was shooting without justification, which not
8 merely bordered on the reckless but crossed that border.
9 Or it might take the view that the inconsistencies in
10 the soldiers' evidence, the want of explanation, the
11 incongruence of the civilian military accounts and the
12 factors to which I have referred, are explicable by the
13 pandemonium, noise and confusion arising in the very
14 short period of time within which the relevant shootings
15 occurred.
16 As to the second question, if the Tribunal is
17 persuaded that there was a level of paramilitary
18 activity as described by the soldiers and in the
19 evidence upon which they rely, it would follow that the
20 picture that the Tribunal has been given on the civilian
21 evidence, taken as a whole, of events in
22 Glenfada Park North is misleading. Such a conclusion
23 would of course potentially alter (in a radical way) the
24 view that the Tribunal takes of events in that sector.
25 For if there were in fact -- as the tenor of the
1 soldiers' evidence is -- riflemen and nail bombers, or
2 what seemed to be such, it would be natural for the
3 soldiers to engage with them and, indeed, they would in
4 effect pose the question: why else should they have
5 fired.
6 In our submissions we have compiled individual
7 reports on the individual shootings in an attempt made
8 with a view to assisting the Tribunal to indicate who
9 are the likely or possible candidates responsible for
10 shooting the individuals concerned. It has, however, to
11 be said at once that the exercise may be one of only
12 limited value because there are so few common points in
13 the evidence of the civilians and the soldiers. In many
14 cases little more can be done than to identify aspects
15 of the soldiers' evidence which make a particular
16 soldier a more or less likely candidate than another,
17 for example, because the place where the victim fell and
18 to which the firer said that he shot are similar, or
19 because of the place at which the firer said that he was
20 when he shot, or because of the order in which events
21 appear to have taken place.
22 If, however, there has been a fundamental failure by
23 the soldiers to explain what occurred, the exercise may
24 be futile. To take one example, if 18 shots were wholly
25 unaccounted for but were shot in Glenfada Park North,
1 these could themselves be referable to all the deaths
2 and woundings and it would be useless to attempt to
3 relate those deaths and woundings to any other. Even if
4 those are left out of consideration, if the account
5 given by the soldiers of what they did is fundamentally
6 flawed, there may be little to be gained by trying to
7 see what characteristics relating to those who died or
8 were wounded, such as where they fell or at what time in
9 the passage of events they fell, bear some relationship
10 to the account given when that account is ex hypothesi
11 inaccurate.
12 In each of the individual reports compiled we
13 indicate that if the Tribunal takes the view that there
14 was paramilitary activity broadly as described by the
15 soldiers, this will obviously affect the conclusion that
16 the Tribunal may reach or not be able to reach. It is
17 not possible to be much more definitive than that in
18 a submission such as this because the significance of
19 such activity, if any, will depend on what exactly it is
20 that the Tribunal is persuaded occurred.
21 Sir, I wonder if that would be a convenient moment
22 to break.
23 LORD SAVILLE: We will come back to it at 9.30 tomorrow
24 morning, please.
25 (4.00 pm)
1 (Proceedings adjourned until 9.30 am on Tuesday,
2 23rd November 2004)
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