1 Monday, 27th September 1999
2 THE CHAIRMAN: We have a number of matters to discuss at
3 this hearing of the Bloody Sunday inquiry. We have sent
4 round to all interested parties a timetable which is for
5 guidance only because we may have to adjust it as we go
6 along and further items may have to be added.
7 However, I think it is still appropriate to start
8 by asking counsel to the Tribunal to give us a report of
9 our progress to date.
10 MR CLARKE: Gentlemen, I and I have no doubt many others had
11 hoped that today would mark the beginning of the
12 Inquiry's full public hearings into the events of 30th
13 January of 1972 rather than a further preliminary
14 hearing. As everyone knows that has not proved possible
15 and following representations both from Madden &
16 Finucane on behalf of the interested parties whom they
17 represent, and Mr Lawton on behalf of the soldiers whom
18 he represents that in the circumstances the September
19 date was no longer feasible, the Tribunal has fixed the
20 beginning of the full hearing at the end of March of
21 next year.
22 One of the principal reasons why it has not been
23 possible to begin the full hearings this autumn is the
24 sheer size of the material that the Inquiry has gathered
25 and continues to gather and the need to allow the
1 interested parties time to read and digest it.
2 Another is the time that has been spent upon the
3 successful challenge to the Tribunal's decision in
4 relation to the anonymity of the soldiers. The
5 documentation that the Tribunal has received now runs to
6 approximately 60,000 pages. It has been obtained from
7 any and every source that the Tribunal and its staff
8 have been able so far to identify as likely to have
9 material that contains information as to what happened
10 on Bloody Sunday.
11 Those sources include the Public Records Offices
12 of England and Wales and Northern Ireland which contain,
13 amongst other things, most of the records of the Widgery
14 Tribunal, the Treasury Solicitor, the Ministry of
15 Defence, the Cabinet Office, the papers of the
16 Northern Ireland Cabinet and the Director of Public
17 Prosecutions for Northern Ireland, the Forensic Science
18 Agency of Northern Ireland, the Governor of
19 Northern Ireland, Altnagelvin Hospital, the RUC,
20 including the Special Branch, the Foreign and
21 Commonwealth Office and the Security Service.
22 In addition individual witnesses have produced
23 material to the enquiry which, where relevant, is or
24 will be exhibited to their witness statements. The
25 Inquiry has also endeavoured to discover any civilian
1 statement that has been made in relation to Bloody
2 Sunday, whether it be to the Northern Ireland Civil
3 Rights Association, to journalists, to the police, to
4 the television camera, or to anyone else.
5 The Inquiry has also tried to obtain as many
6 photographs of Bloody Sunday as are available to be
7 found, and wherever possible to secure negatives. As a
8 result it has amassed over 5,000 photographic images.
9 These vary in quality and utility and are often
10 repetitious of the same subject matter, but they form a
11 valuable and sometimes vital resource for an
12 understanding of the events of that day.
13 Some photographs, although not contemporaneous,
14 have also been obtained for the purpose of showing the
15 geography of the City on 30th January of 1972. The
16 organisations from which they have been obtained are too
17 numerous to enumerate but they include many newspapers,
18 the Public Records Offices, the RUC, several freelance
19 photographers, the Parachute Regiment Museum, the
20 architects of the Rossville flats and many others.
21 We are continuing in our efforts to discover
22 photographs (if they still exist) taken by the military
23 on Bloody Sunday. The material which we have so far
24 discovered under this head is slim in the extreme.
25 In addition the Tribunal has obtained more than 36
1 hours of videotape material, currently on 33
2 videotapes. These contain everything that the Tribunal
3 staff has so far been able to find containing either
4 so-called "actuality" footage of the day or evidence by
5 those who were present of what they did or what they
6 saw. These tapes include material from ITN, the BBC,
7 the helicopter footage of the entry of the army into the
8 Bogside, as well as cine film taken from Mr Rodgers,
9 Mr Porter and William McKinney. This material has been
10 obtained from a variety of sources, including the
11 National Film and Television Archive, the BBC, ITN,
12 Channel 4, the University of Ulster, Praxis, Ulster
13 Television, RTE, PBS and Messers Madden & Finucane.
14 The Tribunal currently possesses 22 audio tapes
15 with more than 13 hours of recorded sound. This
16 includes radio programmes, and the actuality sound
17 recorded by the BBC, Mr William Rukeyser, David Capper
18 and Susan North. These materials have been provided to
19 the Inquiry either by those individuals or by the
20 National Film and Television Archive, the BBC Sound
21 Archive, the Treasury Solicitor's Office, RTE, Mr Carr
22 of the Guildhall press and Mr Simon Heyworth.
23 The Tribunal has also endeavoured to secure as
24 full a hand as possible of relevant press cuttings
25 relating to Bloody Sunday. These vary in usefulness,
1 depending in part on how soon they were written after
2 the event and whether or not they reveal the existence
3 and content of firsthand testimony.
4 The purpose of conducting what has been in effect
5 a huge trawl for documentary evidence is to ensure, so
6 far as possible, that nothing of value to the search for
7 truth is overlooked. In order to ensure that a complete
8 search has been made, and all relevant documents
9 produced, the Tribunal has asked the relevant Government
10 Departments and the interested parties and their
11 solicitors, to confirm in writing that they have
12 produced to the Inquiry all relevant material in their
13 possession, other than that for which a claimed
14 privilege is made. Confirmation to that effect has been
15 received from Messers Madden & Finucane, MacDermott and
16 McGurk, McCartney and Casey, Desmond Doherty and Co and
17 Brendan Kearney Kelly and Co. I take the form of
18 confirmation that those solicitors have given to relate
19 both to themselves and their clients. Confirmation has
20 also been received from the Cabinet Office in respect of
21 the Northern Ireland Office, the Home Office, the
22 Treasury Solicitor's Department, the Legal Secretary as
23 to the Law Offices Department, the Secret Intelligence
24 Service and the Government Communication Headquarters.
25 In addition confirmation has been received from the RUC
1 and also from Miss Jacqueline Duff in respect of Soldier
2 H. Confirmation has not yet been received from the
3 Ministry of Defence or from Mr Anthony Lawton in respect
4 of the soldiers whom he represents or from the MOD.
5 The process of discovering documents has been both
6 laborious and time consuming. In the nature of things
7 it is not easy to trace, in 1998 and 1999 files,
8 documents or photographs created, written or taken in
9 1972. In some cases many tens or even hundreds of hours
10 have had to be spent locating and then sifting through
11 or cross referring to old files, some consigned to
12 storage in several different places. I should like to
13 place on record the Inquiry's appreciation of the
14 assistance that has been rendered to it by several
15 Government Departments, including in particular the two
16 Public Records Offices, the Ministry of Defence, the
17 Cabinet Office, and the Treasury Solicitor's Department
18 and also the RUC and its Special Branch.
19 The search for relevant documents is never over,
20 but I hope that we have now reached a position where the
21 bulk of the documentation that exists has been gathered
22 in and that we can turn to the production of core
23 bundles for use at the hearing itself. That said, if
24 anyone believes that they have material that the
25 Tribunal may not have received that relates to Bloody
1 Sunday I would ask them to contact the Tribunal
2 Secretariat in order that such material can be
3 inspected. It should not be assumed that the Tribunal
4 has everything that is of relevance, it is usually easy
5 to see whether or not it has something already, and the
6 Tribunal staff will be happy to check whether that is so
7 or not.
8 The most important evidence, however, remains that
9 of individual men and women who were either present on
10 the day or have relevant evidence to give about what
11 took place. The answer to the question, "What did
12 happen?" cannot be found in documents alone. Far from
13 it. The documents before the day do not tell one what
14 happened on the day. The documents after the day
15 reflect in large measure the controversy that has raged
16 ever since. The photographs, although important and
17 useful, are by no means comprehensive, many of the
18 critical events are not recorded on film, whether still
19 or moving. Many of the journalists were there after and
20 not at the moment when people were killed and wounded.
21 It is in the testimony of those who were there that the
22 truth is largely to be found.
23 Eversheds, the enquiries solicitors have
24 identified somewhere around 1500 civilians whose names
25 appear in the documents or who have been referred to as
1 participating in Bloody Sunday in one form or another.
2 Not all of them are still alive, some of the names maybe
3 duplicates, some have not been traceable, some have no
4 helpful evidence to give. As of last week Eversheds had
5 interviewed 683 people in this category, of whom 551 had
6 returned their signed statements so there are still over
7 a hundred statements awaiting signature. The Tribunal
8 has made it plain that it would be necessary to set a
9 date by which statements of civilian witnesses who wish
10 to give evidence should be given and fix that date as
11 the 30th September. As the figures which I have
12 mentioned show, by far the bulk of those who have been
13 interviewed have indeed signed their statements and I
14 should like to thank the solicitors who have represented
15 those witnesses for the considerable assistance that
16 they have rendered to the Inquiry in getting the
17 statements amended where needed and signed. I urge
18 those who have not so far signed their statement to do
19 so immediately.
20 The work of assisting those who have evidence to
21 give in the statement taking process taking the
22 statements, recording them in draft and producing
23 statements in final form has been very time consuming.
24 Some idea of the magnitude of the task can be guaged by
25 the fact that not many statements have involved any less
1 than five hours of Eversheds' time to produce, and many
2 have taken several days. These are hours well spent:
3 experience has shown how much information can be
4 gathered by the careful taking of statements and the
5 recording of the witnesses testimony in clear and
6 sequential form will, I believe, greatly assist the
7 Tribunal at the time of the full hearings.
8 The work of taking statements from soldiers (in
9 the main, of course, ex-soldiers) is not so far
10 advanced. This is because the taking of the soldiers'
11 statements has followed the taking of civilian
12 statements and also because of the logistical difficulty
13 involved in tracing those who were present on Bloody
14 Sunday, discovering whether they have relevant evidence
15 to give, and then taking a statement from them. As we
16 have found, and contrary to some popular belief, it is
17 not possible to discover with ease what soldiers were
18 present at, or took part in the events of 30th January
19 1972, or who were involved in the preparations
20 beforehand.
21 The Ministry of Defence was not able to provide
22 the Inquiry with a list of soldiers who were in this
23 City on that day. They were able to provide us with the
24 list of all those who were in each of the relevant
25 Regiments then. But with the exception of Support
1 Company, and one other company of the Parachute Regiment
2 they have not been able to break the membership of those
3 Regiments down into those companies that were in this
4 City on 30th January 1972. This has made it necessary
5 to contact everyone who was in the relevant regiment in
6 order to see whether he was in fact in Londonderry on
7 the day. Many, of course, were not. The list provided
8 by the Ministry of Defence, together with names referred
9 to by others, numbers 3381 men. Of this total it
10 originally appeared just under 2500 were soldiers whom
11 it would be appropriate to attempt to trace, although
12 this number was reduced somewhat subsequently. This
13 tracing was done by ascertaining from a number of
14 different sources the last known address of the soldier
15 in question, and then writing to him enclosing a
16 questionnaire asking whether he was in Londonderry on
17 30th January 1972 and eliciting by a series of questions
18 whether he might have relevant evidence to give.
19 As can be well appreciated the fact that most of
20 the soldiers are no longer in service, many having left
21 several years ago, has made them difficult to trace.
22 Secondly, the impossibility of knowing in most cases in
23 advance of a reply to the Inquiry's questionnaire who
24 was present on Bloody Sunday has greatly increased the
25 number of potential witnesses with whom it has been
1 necessary to communicate.
2 Thirdly, the process of tracing on the basis of
3 information as to the last known address (which
4 information itself has been of varying quality and age)
5 has been difficult, sometimes very difficult --
6 particularly in the case of those who have moved several
7 times. Further, some soldiers have been unwilling to
8 co-operate and have not returned the Inquiry's
9 questionnaires, but I should stress that the vast
10 majority of ex-soldiers have been both courteous and
11 willing to help. A number of ex-soldiers, particularly
12 those whom we have not so far been able to trace, have
13 last known addresses abroad in countries as diverse as
14 Guyana, Cyprus, Fiji, Quatar, South Africa, Germany, the
15 United States and Papua New Guinea.
16 Sometimes the search has not been fruitful. For
17 example, the Inquiry has traced some 391 members of the
18 First Royal Anglian Regiment who were members of that
19 regiment on 30th January 1972, and are still alive. 193
20 of these, some 49 per cent, either were not present on
21 the day or have no information of any help to the
22 Inquiry.
23 So far (that is to say by the end of last week)
24 the Inquiry have traced 1878 soldiers. 157 of these are
25 Widgery soldiers, that is to say soldiers whose evidence
1 was given to Lord Widgery in some form. We asked
2 Eversheds to take states from 579 soldiers with a
3 possibility of taking statements from a further 329, if
4 it transpired that their evidence might be relevant and
5 useful. We decided not to take statements from 816
6 soldiers (because there was no relevant evidence that
7 they could give). 150 of the traced soldiers have died,
8 the, two soldiers have, and two soldiers will have their
9 statements taken by members of the Inquiry's staff. We
10 are still attempting to trace 268 soldiers of whom 8 are
11 Widgery soldiers. That 268 figure may itself be too
12 high, since some of the individuals within it may in
13 fact be the same as those who have already been traced.
14 Another 69 out of this 268, another 69 are ex-members of
15 the first Batallion of the Parachute Regiment. The
16 effect of this is that we have traced something like 87%
17 of the soldiers that we ended up trying to trace.
18 All of the lettered soldiers have been traced.
19 Three, that is to say letters E, G and T are dead. L
20 and X are abroad. As I say, all but eight of the
21 Widgery soldiers have been traced.
22 Those soldiers who might have relevant evidence to
23 give and who have been identified and traced have been,
24 or will be, interviewed and their statements taken down
25 and recorded, according to the same procedure as has
1 been adopted in respect of the evidence of the civilian
2 witnesses. Those witnesses receive legal assistance if
3 they wish it, in like manner as the civilian witnesses
4 from a solicitor of their choice. The purpose of
5 producing a draft and then a final statement then
6 follows the same course as with civilian witnesses.
7 That has been and continues to be, an equally time
8 consuming process. As of last week Eversheds had seen
9 456 soldiers or ex-soldiers of whom 68 had signed their
10 statements and 86 had sent back amendments, so there are
11 a considerable number of traced soldiers who still need
12 to be interviewed.
13 At the same time interviews have been taking place
14 with some 50 RUC or ex-RUC officers, and 18 of them have
15 signed their statements, 17 statements are in the course
16 of amendment. Further, the Inquiry has endeavoured to
17 discover which of the journalists and photographers who
18 were not on Bloody Sunday have relevant evidence to
19 give, and to interview and take statements where
20 appropriate.
21 Substantial progress has been made in relation to
22 expert evidence. The Tribunal's experts reports will
23 include the following:
24 Firstly, the report of Dr Shepherd and Mr Kevin
25 O'Callaghan on Pathology and Ballistics issues, which is
1 a report, together with a large quantity of accompanying
2 photographs.
3 Secondly, the report of Mr John Lloyd on issues
4 relating to Firearms and Explosives residues.
5 Thirdly, the report of Mr Davies and Mr Lower of
6 ISVR Consultancy, on the ability of listeners to
7 differentiate between or identify different weapon
8 sounds.
9 Fourthly, the report of Mr Christopher Mills of
10 Network International on the analysis and interpretation
11 of certain audio and video recordings. The purpose of
12 this report is to provide the Tribunal with the most
13 accurate version of the recordings that the Tribunal
14 has.
15 Fifthly, the report of Mr Robert Butler of Network
16 International on the enhancement and reproduction of
17 certain video and photographic material.
18 Sixthly, a further report of Dr Shepherd on the
19 injuries of the known wounded.
20 Seventh, a further report by Mr O'Callaghan on a
21 number of specific issues such as the ability of
22 soldiers C and D to have fired from the spot from which
23 they said that they fired at the target at which they
24 said that they shot, and whether a particular photograph
25 does or does not show a man with a gun in his hand.
1 Eighthly, number of further reports from ISVR
2 Consultancy which will include:
3 A main overview report
4 A report on the sound recordings made by ISVR for
5 the Inquiry
6 A report comparing the recordings of gunshots and
7 other noises on the actuality footage to the new
8 reference recordings made for the Inquiry by them.
9 Ninthly, the reports of Professors Arthur and Bew
10 on the background to the events of 30th January 1972.
11 The first four reports that I have mentioned have
12 been circulated to the interested parties and the fifth
13 will be available on Wednesday of this week. The other
14 reports will be circulated when they are available in
15 their final and signed formed. This is in accordance
16 with the Tribunal's stated position that it will publish
17 all the material that is submitted to it, unless
18 satisfied that there is some compelling reason why this
19 should not be done. The reports that have been provided
20 to the interested parties and those that will be
21 provided hereafter are being circulated in advance of
22 the hearing, as are other documents that the Tribunal
23 has received in order that all those concerned may have
24 sufficient time to consider and digest them, and for no
25 other reason.
1 I should make plain that these reports, like the
2 other material circulated and to be circulated in
3 advance of the full hearings, are an important part, but
4 only a part of the very large amount of evidence that
5 the Tribunal will receive and that it is upon the
6 totality of their evidence that the Tribunal will come
7 to its conclusions.
8 There have already been circulated two reports
9 from counsel to the Tribunal. The first was a review of
10 the evidence before Lord Widgery, the second was a
11 comparison of the differing statements of the lettered
12 soldiers. There will shortly be circulated counsel's
13 report number 3 will be a synthesis and comparison of
14 the evidence given by the Widgery soldiers to the
15 Military Police or to Lord Widgery, insofar as it
16 relates to the 107 live rounds accepted as having been
17 fired on Bloody Sunday.
18 The mass of documentation to which I have referred
19 requires to be assembled in some useful format and
20 analysed. To that end I have it in mind that there
21 should be a series of bundles, either in hard copy or
22 electronic form. My present plans are that those
23 bundles should include the following:
24 Firstly, bundle A. This will include in
25 alphabetical order the evidence of civilian witnesses
1 that the Inquiry has, paginated by individual witness,
2 each of whom will have a unique indicator number. Thus
3 the indicator for the first witness -- call him Adam --
4 will be AA1, and his evidence will be paginated
5 AA1/1-10. In this way new evidence, including
6 transcripts of Adam's evidence to this Inquiry, can be
7 added to the bundle without disturbing the integrity of
8 the pagination. The next witness will be AA2 and the
9 documents relating to him will be AA2/1 to whatever is
10 the last figure of his testimony.
11 The evidence included in bundle A will be any
12 evidence that that witness has given or statement that
13 he or she has made, whether it be confined to a NICRA
14 statement, or whether it comprises a NICRA statement, a
15 statement to the Widgery Tribunal, a transcript of all
16 the evidence given to Lord Widgery, statements given to
17 the Press, a statement given to this Tribunal, an
18 article written by the witness or, indeed, anything
19 else.
20 At present it is estimated that this bundle will
21 be the equivalent of at least 21 lever arch files,
22 possibly more. Not all the names in the bundle will
23 have statements included in the bundle. Some of the
24 names are names of those who gave NICRA statements, some
25 are those whose names Eversheds came across or names who
1 are suggested to the Inquiry, some have died, some
2 cannot be traced, so a statement will not be available
3 necessarily from all of them. The inclusion of all
4 these names in the list with unique indicators should
5 mean if any statement does subsequently come to light it
6 can be added to the bundle at an appropriate place and
7 the sequence with unique indicators can hopefully follow
8 the alphabetical list of names without leaving new
9 indicators with suffixes of AA/1A.
10 Secondly, bundle B. This bundle will be
11 distributed next week contains the evidence of the
12 Widgery soldiers. That is to say those soldiers whose
13 evidence was before Lord Widgery either in the form of a
14 written statement or both in that form and by way of
15 oral evidence. The bundle contains all the known
16 evidence of the soldiers in question, including where
17 relevant his statement to the Military Police or
18 statements, his statement to the Widgery Tribunal, his
19 oral evidence, if any, and any other statement that he
20 may have given. It is paginated sequentially. It is
21 paginated in that form and not with separate pagination
22 for each individual soldiers because that is how it was
23 originally created, and because that is the number that
24 was used and referred to in counsel's report. To adopt
25 any other system would make the page references wrong in
1 every case. When statements taken by Eversheds are
2 produced they will be added to the bundle with
3 appropriate suffixes given to the numbers.
4 The production and subsequent distribution of this
5 bundle has been significantly delayed because of the
6 need to anonymise names not in the public domain.
7 Thirdly, there will be a bundle of statements of
8 non Widgery soldiers, that is to say those who did not
9 give evidence to Lord Widgery in any shape or form.
10 Fourthly, there will be a bundle of statements of
11 RUC or ex-RUC members.
12 Fifthly, there will be a bundle of journalist and
13 photographers statements.
14 Sixthly, there will be a bundle of statements from
15 priests.
16 Seventhly, there will be a bundle of statements
17 from politicians and officials.
18 Eightly, there will be a bundle of miscellaneous
19 statements.
20 Ninthly, there will be the experts' reports.
21 These will be bundle E and the accompanying photographs
22 will be Bundle F.
23 It may be that there will be some duplication as
24 between bundles in that the same statement is included
25 in more than one Buddle, although we shall try to avoid
1 that if possible.
2 The number of witnesses who have made some form of
3 statement and who are likely to feature in the above
4 bundles is in the order of 1500. Some, of course,
5 cannot be called, either because they have died or
6 because they cannot be traced. I should make plain that
7 the Tribunal will regard the statement of any witness
8 that it has before it as evidence, although the
9 importance that it attaches to any such statement will
10 obviously differ according to the circumstances.
11 But it is neither necessary nor appropriate for
12 every witness who has given a written statement to give
13 evidence orally as well. Not least because in some,
14 perhaps in many cases, the witness will have nothing to
15 add or that he or she can reasonably be expected to add
16 to what he has already said. In such cases I do not
17 believe that the Inquiry will be assisted by the oral
18 repetition of what is already in a written statement.
19 What I propose should happen is that over the next
20 few months there will be published lists of those whom
21 the Inquiry's counsel proposed should be called and
22 those whom they propose should not be called. If any of
23 the interested parties is of the view that someone who
24 we have suggested should not be called to give oral
25 evidence should in fact be called they should
1 communicate that fact to the Tribunal Secretariat giving
2 brief reasons for their view. If we agree with it the
3 witness will be called, if possible, if not the matter
4 will be referred to the Tribunal for a decision.
5 I should emphasise that a decision that someone
6 need not be called to give oral evidence is not a
7 judgment as to the utility or worth of his or her
8 evidence. It is a judgment merely as to whether it is
9 appropriate for him or her to be asked to give not only
10 a written but also oral evidence. Whether that is
11 appropriate will depend upon a number of factors,
12 including the importance of the evidence, whether it is
13 unclear or inconsistent with other evidence, whether it
14 is or is likely to be subject to challenge, et cetera.
15 I intend to err upon the side of caution, that is
16 to say in favour of calling someone in the case of
17 doubt. There is, however, a need to keep the number of
18 witnesses giving oral as well as written evidence within
19 sensible bounds and to avoid so overloading the
20 proceedings that the wood is missed for the proverbial
21 trees. I recognise, of course, that there is an element
22 of subjectivity in this approach, hence the need for an
23 opportunity to express a different view and an avenue of
24 appeal.
25 I should, however, make it clear that those who
1 are almost certain to be asked to give evidence orally
2 are those few people who declined to sign their draft
3 statements since they will have thereby withheld from
4 the Tribunal what is the usual method of authentication
5 of what they have to say and there will shortly come a
6 time when in default of a signed statement the Tribunal
7 will have to circulate the latest draft of the witness'
8 evidence as being the most reliable record in existence
9 of what his evidence is.
10 I intend that these lists should be issued from
11 time to time with an aimed cut-off date for the
12 provision of any representations in relation to the
13 calling of civilian witnesses of 30th December of this
14 year, and in relation to the calling of military
15 witnesses of 29th February of the year 2000. It will,
16 accordingly, be necessary for those representing the
17 interested parties when reading the statements to note
18 whether or not they think that the witness whose
19 statement they are reading should be called to give oral
20 evidence in addition to his or her written statement in
21 order that timely representations may be made in the
22 case of a difference of view. These representations
23 can, of course, be made from time to time so soon as it
24 becomes apparent that a difference of view as to whether
25 someone should be called exists.
1 In general I propose it that the written statement
2 of any witness should be regarded as his evidence
3 without more ado so that when he gives evidence orally
4 it is unnecessary to take him through the whole contents
5 of his statements as if it was a mere proof. He can
6 simply be asked questions where his evidence needs
7 explanation, exposition, challenge or Inquiry. There
8 will, however, be exception to that general rule. The
9 evidence of some witnesses may be so important or
10 controversial it may be appropriate or necessary to take
11 a different course.
12 It is to be hoped that all those who have relevant
13 evidence that they wish to give to the Tribunal have
14 come forward. If there are some who have not they
15 should do so the immediately since the Tribunal's
16 deadline in respect of civilian witnesses is shortly to
17 expire. Further if the interested parties become aware
18 of an important witness whose evidence is not included
19 in bundle A or any other bundle, they are invited to
20 communicate, if they have not already done so, with the
21 Tribunal with appropriate details.
22 When the full hearings of the Inquiry are underway
23 my plan at present is to adopt an order of witnesses
24 under which, broadly speaking, the civilian witnesses
25 will be called in the order of the sectors to which
1 their evidence principally relates. Thus we shall begin
2 with the witnesses whose evidence is most significant in
3 relation to sector 1, then those whose evidence is most
4 significant in relation to sector 2 and so on. It is
5 neither possible or sensible to wholly compartmentalise
6 the evidence into sectors for the simple reason, amongst
7 others, that many witnesses give evidence of events in
8 several sectors.
9 It will, when the time comes, be necessary
10 therefore for the Inquiry's staff to marshal the
11 witnesses so that they are available to give evidence at
12 the appropriate time and without avoidable disruption to
13 the proceedings. Since, however, the time involved in
14 the examination of witnesses is uncertain and may
15 concertina out or in an unpredictable fashion, it may
16 not be possible to say when exactly a witness will be
17 called. It will be necessary to have some kind of
18 warned list in relation to future witnesses, which will
19 alter from day-to-day as the Inquiry proceeds so that
20 the Tribunal, the witnesses and counsel will be able to
21 prepare appropriately. We shall do our best to give
22 adequate and accurate notice of when, or at any rate
23 within what period people will be asked to give
24 evidence, but in the nature of things some people will,
25 I fear, be kept waiting and others may be asked to come
1 at short notice.
2 The Tribunal has all the powers of the High Court
3 in relation to enforcing the attendance of witnesses.
4 It is to be hoped that most witnesses will attend
5 voluntarily in order to assist the Tribunal to discover
6 the truth of what occurred, but should it be necessary
7 to do so in order to find the truth the Tribunal will
8 make use of the powers given to it by Parliament for
9 that purpose.
10 I have so far spoken only of bundles of statements
11 of evidence or the like. It will also be necessary to
12 have core bundles of documents other than statements of
13 evidence.
14 I have in mind that those bundles should include
15 firstly the intelligence core bundles. These three
16 bundles have already been distributed. They consist of
17 a series of planning and intelligence documents at the
18 very highest level of Government, both in London and
19 Belfast and of Army documents at a similarly high
20 level. But for this Inquiry they would not in the
21 ordinary course have been made public for some time.
22 Almost all of them were secret when written. These
23 bundles show, if proof were needed, that the Inquiry has
24 had access to material at the highest official levels.
25 Secondly, the autopsy bundle, that is to say the
1 details of the autopsies of those who died.
2 Thirdly, the wounded bundle, that is to say a
3 bundle containing details of the injuries to the
4 wounded.
5 Fourthly, the Audio and Video transcript bundles;
6 these are transcripts of salient passages in the
7 inquiries' video and audio tapes.
8 Fifthly, the Audio Index and the Video Index.
9 These are, as their name implies, indicies of the audio
10 and video material indicating the content by reference
11 to the appropriate counter setting.
12 Sixthly, the EP documents, these are the so-called
13 exhibited documents before Lord Widgery.
14 Seventhly, the EP photographs, that is to say the
15 photographs that were before Lord Widgery's Inquiry.
16 Eightly, a bundle of morgue photographs. These
17 include, but are not limited, to the photographs in this
18 category in the EP bundle. It has become apparent in
19 the course of our enquiries that the EP bundle does not
20 contain photograph in this category.
21 Ninthly, a bundle of trajectory photographs, that
22 is to say the photographs upon which the lettered
23 soldiers marked the trajectory of their shots.
24 Tenthly, a bundle of photographs indicating the
25 geography of the area at the time.
1 Next a bundle of core photographs. The Inquiry's
2 staff have gone through the very sizable number of the
3 photographs the Inquiry possesses with a view of
4 acquiring a number of photographs that the Inquiry
5 possess with a view to creating a core bundle of the
6 most important photographs, including the following
7 categories;, general photographs of the March, pictures
8 of Aggro Corner, i.e. the junction between Rossville
9 Street and William Street, barrier 12, the rioting at
10 Barrier 14, the use of water cannon, the use of gas, the
11 Rossville Street barricade, events in Glenfada Park,
12 arrests, pictures of armored personnel carriers,
13 ambulances, pictures of bullets and bullet holes,
14 Fr Daly's gunman, (that is to say the gunman of whom
15 Fr Daly, as he then was, and others who spoke in their
16 evidence, the Widgery model, and photographs of each of
17 the deceased and wounded to the extent that they are
18 available.
19 The distribution of these photographs will be in
20 bound volumes of printed images, the quality of which is
21 extremely high.
22 Next there will be the Widgery Inquiry transcripts
23 which the interested parties already have on CD Rom.
24 Then there will be counsel's report of which there
25 are presently 2 and of which there will be one more,
1 including the attachments to counsel's report number 1,
2 and in particular the typed copy of the brigade log,
3 next there will be a newspaper cuttings file containing
4 the most important newspaper cuttings. I have no doubt
5 there will be other files that will need to be provided,
6 in particular there are a number of documents which can
7 only appropriately go into a general file will be
8 prepared over the course of the autumn.
9 It is apparent from what I have been saying that
10 there is a large amount of work to be done by way of
11 consideration and analysis of the material that has come
12 in, and will continue to come in. Although March 27th
13 in the year 2000 may seem a long way off there is much
14 to be done in the interim if all those concerned are to
15 be prepared for the commencement of the full hearings of
16 the Inquiry. These will begin with a long opening from
17 me in which I shall attempt to analyse some of the
18 salient evidence and identify the issues to which it
19 gives rises.
20 The aim of this Inquiry is to discover the truth
21 of what occurred on 30th January 1972 in an open,
22 thorough and fair manner. To that end it is important
23 that individuals should know of any allegations of
24 misconduct that they have to meet. As was made plain in
25 counsel's report number 1 in general terms it is the
1 Army's contention that those who fired live rounds fired
2 at those who were, or were believed to be gunmen or nail
3 bombers. The opposite case is that the army fired live
4 rounds and killed or wounded people without
5 justification. At one level of generality, therefore,
6 everyone who was shot at faces an allegation that he
7 was, or appeared to be a gunman or bomber, or that a
8 shot intended for such a person hit him. Further, on
9 the same level of generality every soldier who was in
10 the Bogside faces an allegation that he may have fired
11 without justification since, at its highest the claim
12 that has been made is that all the army shots were
13 without justification and that the army's account that
14 only 107 live bullets were fired in the circumstances
15 spoken to in evidence to Lord Widgery is false, either
16 the circumstances or the number of bullets fired or both
17 were wrong. The respective contentions thus expressed
18 are poles apart and this circumstances alone makes
19 delineation or narrowing down the issues difficult.
20 Counsel's report number 1 sets out on a more specific
21 level a number of allegations relating to individual
22 soldiers that seem likely to arise.
23 This is an Inquiry not a trial. Its purpose is to
24 seek to discover the truth by the process of Inquiry,
25 not to prove or disprove a charge or claim. It starts
1 with no assumptions as to what happened and with no aim
2 to reach any particular conclusion or result other than
3 that of discovering the truth. It inevitably follows
4 that in the nature of things matters are likely to arise
5 in the course of the Inquiry which call for an answer or
6 may call for an answer from individuals that were not
7 anticipated when the Inquiry began. The Inquiry
8 (through Eversheds) is endeavouring, so far as
9 reasonably possible, to raise with individuals whether
10 they be civilians or soldiers who give statements
11 particular matters or material with which it is apparent
12 that they ought to have for opportunity of dealing. In
13 addition, and most importantly, in contrary distinction
14 to the procedure before Lord Widgery all the interested
15 parties will see the evidence in advance, and will thus
16 be forewarned of anything they think will effect them.
17 Further, the opening itself will be a substantial one
18 and will identify further issues.
19 The Tribunal has, therefore, for its part,
20 endeavoured to give, and will continue to endeavour to
21 give advance notice of issues that are likely to effect
22 individuals. Anyone concerned also knows, or ought to
23 know, that the Tribunal is a Tribunal of Inquiry and
24 that it will pursue those inquiries wherever they may
25 lead. It is for that very reason that the interested
1 parties are represented before the Tribunal in order
2 that, among other things, they may deal with any matters
3 affecting them as and when they arise.
4 Those who are to give evidence before the Tribunal
5 will know that the Tribunal's task is to try to discover
6 the truth, whatever it may be, and that it does so in
7 the context of an acute controversy as to what truly
8 happened on 30th January 1972, the nature of which is
9 well-known and which has been set out in detail in
10 counsel's report number 1. What they do not know is
11 what allegations of blameworthy conduct may be made
12 against them by or on behalf of the interested parties.
13 Accordingly the Tribunal may like to consider discussing
14 with the interested parties a mechanism whereby
15 appropriate notice will be given of any allegations that
16 are to be made by any interested party, whether upon the
17 civilian or military side of the divide, and this is
18 indeed one of the questions which is raised by the
19 application for a direction made by Mr Robert Aitken of
20 the Treasury Solicitor's Department on behalf of those
21 soldiers whom he represents.
22 The Inquiry will be opening an office in this City
23 in the New Year, probably in February, and hopes to be
24 in a position to announce where that office will be in
25 about a month. That brings me finally to the agenda for
1 the preliminary hearing.
2 The following matters have been identified as
3 requiring consideration:
4 Firstly, the question whether the unlettered
5 soldiers, or those who gave evidence in some form to
6 Lord Widgery and other soldiers should remain anonymous
7 at this stage either because the logic of the decision
8 of the Court of Appeal compels that course, or because
9 that is the appropriate course in any event. The
10 Tribunal will also have formally to take the decision
11 which the Court of Appeal has directed the Tribunal to
12 make.
13 Secondly, there is the question of the application
14 by the RUC in respect of two officers.
15 Thirdly, there is the question of redaction of
16 certain documents disclosed by the Ministry of Defence.
17 Fourthly, the continued consideration of the
18 question as to whether the material indicating
19 Mr Taylor's confidential sources should be revealed.
20 Fifthly, the application by ITN to set aside a
21 witness summons issued against it.
22 Sixthly, the application by the Daily Telegraph
23 and Toby Harnden, Irish correspondent, to set aside the
24 summons issued against it.
25 There was an application by the Daily Mail to set
1 aside a summons issued against it to produce whatever
2 photographs, either a negative or print form it had in
3 its possession. That summons was live until Friday of
4 last week, but we are given to understand that it is not
5 now to be pursued.
6 Next there is an application by the Drivers and
7 Vehicles Licensing Agency to set aside a summons issued
8 against it.
9 Then there are a number of matters raised by the
10 interested parties. Those that I have identified so far
11 and which I have not already referred to, are firstly
12 those referred to in a number of paragraphs of Desmond
13 Doherty & Co's letter of 9th September, namely:
14 Venue for military witnesses;.
15 Location in this City of the hearings in March:
16 Early warning of distressing photographs; .
17 Availability of reports;
18 The question of identification of the soldiers who
19 are now dead;.
20 Authentication of military witnesses;
21 A question of contempt by the Daily Mail and the
22 Daily Telegraph.
23 Then there are two matters raised in Madden &
24 Finucane's letter of 7th September, namely procedure at
25 the Inquiry hearings, and a representation in respect of
1 the weapons demonstration and in addition Madden &
2 Finucane have raised a number of matters by their letter
3 of 23rd September.
4 As to the question of venue for military witnesses
5 the Tribunal has made no final decision upon that
6 question and would not, as I understand it, think it
7 appropriate to make any such decision now when the
8 earliest time that any military witness will be giving
9 evidence is in the middle of next year.
10 Then there are any questions that arise in
11 relation to the expert evidence. Then there is the
12 direction sought by Mr Aitken of the Treasury Solicitor
13 in relation to allegations against witnesses on behalf
14 of those whom he represents. After the close of one of
15 the sessions this week there will be a demonstration for
16 the legal representatives of the interested parties of
17 the virtual reality computer model of the area between
18 William Street and Free Derry Corner which is, it is
19 hoped, will be a useful means of depicting the several
20 places where events happened and which will enable
21 witnesses to orientate themselves and accurately to
22 describe where they were and what they saw. When I last
23 saw it in embryo a month ago it looked very impressive
24 to me, and I anticipate it will look even more
25 impressive this time around.
1 THE CHAIRMAN: Yes, thank you, Mr Clarke. Two matters arise
2 immediately from what you have said. The first relates
3 to the other matters raised by interested parties at
4 which you gave a summary at the end of your progress
5 report. What I propose we do is that the Tribunal will
6 rise in a few moments time and I would urge upon all the
7 legal representatives here to have a word with Mr Clarke
8 or his juniors to ensure that we have a complete list of
9 all the matters that anyone wants to raise during the
10 course of this hearing.
11 The other matter refers to the assurance that we
12 sought that all interested parties and their legal
13 representatives had disclosed to the Tribunal everything
14 of relevance in their possession, for which they had not
15 made a claim for privilege. And it appears from what
16 Mr Clarke has told us that we do not yet have such an
17 assurance from Mr Lawton or his clients or from the
18 Ministry of Defence. I propose that we rise now but
19 come back in 20 minutes time, on which occasion I would
20 like an explanation as to why that assurance has not
21 been forthcoming.
22 (Short adjournment).
23 THE CHAIRMAN: Well, I understand we now have a
24 composite list of the items that we have to consider
25 during the course of this hearing, and if any others
1 arise could they let Mr Clarke know what they are as
2 soon as possible so we can try and fit them in.
3 That leads to the question I asked just before we
4 rose a few minutes ago. Mr Glasgow, can you help us on
5 the question of this assurance?
6 MR GLASGOW: Yes, I think I can. The positions is that we
7 have served lists of documents for all -- when I say the
8 principal clients I am referring to those clients who we
9 believe would have documents, and detailed lists of
10 those have been served from the outset. The only
11 difficulty that we have is those who keep coming in
12 since the letter of the 19th July was written, something
13 in excess of 100 clients have been referred to my team
14 and, indeed, 14 in the last week. I have been able to
15 give my learned friend Mr Clarke and assurance today,
16 and it will be confirmed in letter, that we believe the
17 obligation has been fulfilled in respect of all of them,
18 but we simply do not know until we speak to them. Every
19 single client who is seen is asked whether he has got
20 any documents, and I think I am right in saying over the
21 period since 19th July only two substantial quantities
22 of documents have been produced by clients who have not
23 previously seen. They have been produced in schedule,
24 we are certainly able to give an assurance and I can
25 confirm it in writing that there are no documents at the
1 moment that we know of, save the possibility that there
2 is one further document produced last week which will
3 have to be added to one of the client's lists. That has
4 thrown a line of inquiry which we are asking all the
5 other clients about, and the assurance will be repeated
6 as regularly as it is helpful it do so. Perhaps every
7 week we can write saying we now have so many more
8 clients and we are able to give the assurance in respect
9 of them as well. But it is a continuing process. We
10 are happy to do it in whatever way is the most helpful
11 to Eversheds and your team, sir, but I do not know that
12 I can take it further than that.
13 THE CHAIRMAN: Yes, well could we have the assurance,
14 insofar as you are able to give it, in writing by the
15 middle of this week?
16 MR GLASGOW: Yes, sir.
17 THE CHAIRMAN: Well, thank you Mr Glasgow. Mr Hoskins what
18 is the position of the Ministry of Defence?
19 MR HOSKINS: Sir, there are two separate points which need
20 to be addressed here. The first is a general one.
21 Namely, sir, you'll recall in April last year the
22 Inquiry produced a list to the Ministry of Defence of
23 documents which it thought would be of interest to it.
24 By June of last year I understand that all of the
25 documents referred to in that list had been disclosed,
1 indeed, along with some others which the Ministry of
2 Defence thought would be of interest to the Inquiry.
3 Since that date there has been a continuous process of
4 liaison between the Inquiry Secretariat and the Ministry
5 of Defence as the Inquiry's progress with its inquiries
6 open up further avenues, further requests are made for
7 documents which did not seem at the initial stage
8 perhaps to be of relevance.
9 My instructions are that those requests are being
10 complied with in the most helpful way by the Ministry
11 and, indeed, I note my learned friend Mr Clarke was kind
12 enough to pay tribute to the helpfulness of the Ministry
13 in providing the Inquiry with documents over the last
14 few months.
15 Because that process is ongoing, as it were, and
16 further documents are being sought and are being
17 disclosed and assurance to the Inquiry that all relevant
18 documents has been given has not been forthcoming
19 because it may be that some further documents which it
20 is not thought are of relevance at the moment may become
21 relevant. There is one further matter --
22 THE CHAIRMAN: I am sorry, thought by whom to be relevant?
23 MR HOSKINS: The Inquiry, sir.
24 THE CHAIRMAN: We do not know whether they're relevant or
25 not unless you produce them to me.
1 MR HOSKINS: So far as we are concerned we have already
2 exercised that judgment and produced any document we
3 consider to be of relevance.
4 The second matter to which I --
5 THE CHAIRMAN: In those circumstances if the Ministry of
6 Defence has revealed to the Tribunal everything that it,
7 the Ministry of Defence regards as being relevant, why
8 cannot it give an assurance to that effect?
9 MR HOSKINS: To that assurance I am sure it can give -- I
10 need to take up one secondary point, sir, before I come
11 to that, and that is that as you may have been informed,
12 I do not know, there has been recent correspondence
13 between the Inquiry and the Ministry of Defence about
14 certain material which the Inquiry solicitor has at this
15 stage been invited himself to come to the Ministry of
16 Defence to inspect and to see how that matter can then
17 be taken further. I understand that that invitation was
18 extended in the latter part of last week. Sir, that
19 matter still remains outstanding. It is, as it were,
20 being dealt with at the moment between the Ministry of
21 Defence and the Inquiry and until it is sorted out, of
22 course, no final assurance can be given.
23 THE CHAIRMAN: Well, it would still be possible for you
24 today, presumably in the light of what you have said, to
25 give an assurance of everything which the Ministry of
1 Defence believes to be relevant to the Inquiry has been
2 disclosed.
3 MR HOSKINS: That may well be so, sir, may I take further
4 instructions that is what I understand the position to
5 be?
6 THE CHAIRMAN: Assuming that is the position then there
7 would be no difficulty, would there, you providing that
8 assurance in writing, say by the middle of this week?
9 MR HOSKINS: I will certainly take instructions on that,
10 sir.
11 THE CHAIRMAN: Perhaps you can bring the Tribunal's
12 attention to the matter again on Wednesday.
13 MR HOSKINS: I will certainly do so, sir.
14 THE CHAIRMAN: Yes, thank you very much.
15 Well, it's nearly half past 12. According to our
16 professional timetable we were going to stop now and
17 start again at 2 o'clock, and at 2 o'clock deal with
18 what is rapidly becoming a perennial subject, the
19 anonymity of soldiers.
20 LORD GIFFORD: Sir, I know there were a number of matters we
21 will have the opportunity to deal with during the course
22 of the week, but might I signal one which is troubling
23 me just so that I know who represents whom. The
24 Treasury Solicitor, wearing different hats, has
25 indicated that he represents a number of clients, to
1 listen to Mr Glasgow just now the list of his clients
2 seems to grow week by week. I have not quite understood
3 whether every soldier is an interested party. It would
4 seem to be a potential difference between an interested
5 party and a witness who is represented by a solicitor
6 and counsel. Be that as it may, it would certainly be
7 helpful to us if we could have a list of the persons
8 identified by whatever appropriate means who are
9 represented to you at the moment. We say this also
10 because of the letter received by Mr Aitken, who seems
11 to represent a different set of soldiers, and we do not
12 know whom, and I wonder if the nature of the
13 representation could be clarified because I am at the
14 moment slightly bemused as to who is represented before
15 this Inquiry.
16 THE CHAIRMAN: I can understand that. Lord Gifford and I am
17 sure Mr Atkins and the Ministry of Defence and
18 Mr Glasgow will help you as much as possible. We must
19 not preempt the question of anonymity, but can I ask
20 those parties to have a word with Lord Gifford to see if
21 the matter can be clarified. If not can you raise it
22 again. I am anxious to stop at half past 12 because I
23 do understand some of the people
24 present here may have an engagement at this time.
25 So we will start again at 2 o'clock on the subject
1 of anonymity.
2 (The Luncheon Adjournment).
3 THE CHAIRMAN: As a result of the discussions that counsel
4 had before lunch we have constructed a timetable which
5 incorporates, so far as we are aware, all the topics
6 that anyone wanted to raise during the course of this
7 hearing. By and large we have put those in for Friday,
8 and I hope by the end of the afternoon all who wish to
9 have one will receive a copy of our present timetable.
10 There are quite a considerable number of matters
11 to be raised on Friday. It would be very helpful if
12 those who wanted to make one or more of the various
13 points that we have listed could, insofar as it has not
14 already been done, put a summary in writing of what they
15 wanted to say or propose, or what questions they wanted
16 to ask by, let us say, Wednesday midday, so as to enable
17 the Tribunal to look at the matter and, indeed, so as to
18 enable everyone else who had something to contribute to
19 know what was being proposed or questioned, and so on.
20 One other point before we get on to the anonymity
21 application, is to inquire whether everybody in the room
22 is able to hear the Tribunal, and counsel? Are you all
23 happy with the sound so far? Good. If at any stage the
24 voices fade or there is difficulty in hearing, I
25 personally do not mind if you get up and wave at me to
1 make sure that everybody, so I can then make sure
2 everybody can hear properly.
3 Well, in those circumstances, Mr Glasgow, I think
4 we turn to you for your application in respect for
5 anonymity, and I think I would like to ask you before we
6 get underway: you are making this application for which
7 soldiers?
8 MR GLASGOW: All soldiers by whom we have been instructed,
9 other than those who were granted anonymity -- I am
10 sorry, those who are covered by the indication in the
11 Court of Appeal and whom we apprehend you'll make some
12 order consistent with that ruling today, or as soon as
13 convenient.
14 THE CHAIRMAN: Yes, that has reminded me of a point. What I
15 would like you to do on that, if you would, is to
16 construct some draft order.
17 MR GLASGOW: Yes.
18 THE CHAIRMAN: And show it to everybody else, but in
19 particular to Mr Clarke and a copy for the Tribunal.
20 You'll have to be fairly careful with the drafting of
21 that order because, for example, it would not cover a
22 case where we concluded that our search for truth was
23 being materially impeded, nor as I understand it would
24 it include the position when we get to a report as to
25 whether or not anyone who is the subject of criticism
1 should be named.
2 MR GLASGOW: I am sure both those points are right.
3 THE CHAIRMAN: I am not saying those are the only points.
4 It is almost a meanwhile order because I can also
5 envisage, that in the course of the hearings or the
6 preparation for this Inquiry, or hearings of this
7 Inquiry, there may come a stage when it is simply
8 impossible, or hugely difficult to proceed without
9 knowing at least some names.
10 MR GLASGOW: Yes.
11 THE CHAIRMAN: So that the draft order will have to be
12 constructed bearing those examples in mind, but they are
13 really only examples.
14 MR GLASGOW: We have those in mind, sir, and others but we
15 will do our best.
16 THE CHAIRMAN: What I suggest is that you draft an order as
17 soon as you can, distribute it to other parties, and as
18 I say to counsel to the Inquiry and the Tribunal, and to
19 pick it up again some time in the middle of the week.
20 MR GLASGOW: I am grateful, we will do our best.
21 MR MANSFIELD: May I raise, if you permit me through you?
22 THE CHAIRMAN: Yes.
23 MR MANSFIELD: The statement Mr Glasgow raised doesn't take
24 the matter forward. We are still unclear what the
25 category of all soldiers is and I think it --
1 THE CHAIRMAN: I am still unclear, but that is not
2 Mr Glasgow's fault, that is my fault because I
3 interrupted him when he was to tell us a little more
4 about it and the order, because I was going to otherwise
5 forget.
6 THE CHAIRMAN: Mr Glasgow, a little more clarification.
7 MR GLASGOW: What I was going to say is that we were going to
8 ask by those instructing my learned friend and my
9 learned friend Lord Gifford if we could identify, in the
10 proper sense, sensible sense of that word, those for
11 whom we made this application and the answer is we are
12 able to prepare a list of those who already have
13 identification numbers, but as other soldiers come under
14 our instruction we have to wait until they have been
15 given an Inquiry number before we can add them to the
16 list, and that is obviously something that grows. All I
17 can do at the moment is to provide a list in the course
18 of preparation of all those to whom we can attach a
19 number, lettered soldiers of course are taken care of,
20 so far as we act for them and they are still alive, but
21 numbered soldiers are not given numbers until the
22 Tribunal is able to process them and give them a number
23 then I am able to produce a full list and we are doing
24 that on a growing basis.
25 THE CHAIRMAN: Yes.
1 MR WEIR: May I contribute something to this discussion
2 because we have been writing on this subject for some
3 time and it seems quite apart from the question of
4 Mr Lawton's clients, as they are described, there are I
5 think three and possibly four other categories. There
6 is firstly Mr Aitken's clients who are six and now nine,
7 but we know as little about the nine as we do of the
8 six, we know Miss Duff acts for soldier L, and that is
9 clear. Then the question of the untraced soldiers
10 arises, and with your permission I say a little more
11 about that a little later and there may be a fifth
12 category, which are soldiers who are not within any of
13 the other four categories and we are, and have for some
14 time, been concerned about under the Seth (?) they are,
15 if we use that analogy, and I do understand Mr Lawton's
16 list of clients is growing as people are found and so
17 on. There really does not seem any good reason why we
18 couldn't have interim lists of Mr Lawton's clients and
19 of Mr Aitken's clients and also why we couldn't have an
20 interim list of the untraced soldiers, insofar as they
21 are presently untraced and, of course, insofar as they
22 are known of, there are obviously other soldiers whose
23 involvement has been discovered.
24 THE CHAIRMAN: I understand why you are saying this but that
25 would preempt a decision on anonymity, would it not,
1 except for those that are covered presently directly by
2 the Court of Appeal decision? We could probably give
3 you numbers now if that is any help, but if that is what
4 you want we could tell you Mr Aitken represents X number
5 of soldiers.
6 MR WEIR: We would be very happy with that, sir, as an
7 interim position.
8 THE CHAIRMAN: I am sorry you did not know that already.
9 MR WEIR: We have been writing with rather inconclusive
10 responses. One understands that all we would be able to
11 do is see that number X has moved from under, for
12 example, Mr Lawton's thimble to one of Mr Aitken's
13 thimbles or perhaps some untraced soldier has moved, but
14 I think it would help us to some extent just to be able
15 to see what was happening if we could have that
16 information on an interim basis and if it could from
17 time to time be updated.
18 THE CHAIRMAN: Yes, I have noted your request. I think what
19 I will do is discuss it with my colleagues overnight and
20 it may well be that with the assistance of our counsel
21 and our legal team we can produce some list which will
22 necessarily be on an interim basis for the reasons that
23 you appreciate, and Mr Glasgow has told us about.
24 MR WEIR: Of course, and we are very grateful. Could I,
25 while I enjoy your ear, raise this question? You will
1 have noticed some of us are addressing the Tribunal from
2 a seated position and others have risen to their feet.
3 Firstly, I would be anxious for my part, it is not for
4 any reason of discourtesy I am speaking from a seated
5 position, but the practice in Northern Ireland for those
6 participating to speak from a seated position and I was
7 wondering, sir, if you would like to give any
8 indications of what course you would like to follow?
9 THE CHAIRMAN: I was not thinking I would like to cite you
10 for contempt as far as that, I am sure my colleagues
11 think likewise. You can sit and stand as you please.
12 The sound system is working particularly well and I can
13 hear you as well as anyone standing, so please address
14 how you like the Tribunal. Mr Glasgow, yes?
15 MR GLASGOW: Unless it is inconvenient to anybody if I am
16 going to be on my feet for a little time perhaps it is
17 more suitable if I am standing and everybody can see who
18 I am. It is a little inconvenient with respect to my
19 learned friend looking along the road to see who is
20 speaking and everyone can see who I am. If anyone would
21 prefer me to sit down they can tell me and I probably
22 will.
23 THE CHAIRMAN: I am not going to cite you for contempt for
24 standing up, so do what you want to.
25 MR GLASGOW: We are very grateful to your staff and I can
1 appreciate the amount of work in it, because we have not
2 been idle ourselves, but he realise the amount of work
3 that goes into the collation of the material, and the
4 submissions have been very conveniently bundled in
5 separate groups. You will have had our submission on
6 behalf of the -- may I just call them non shooters for
7 the moment, which was a submission we put in on
8 9th September of this year and is the first in the
9 bundle of submissions on the anonymity, RUC and PI
10 bundle. I say that because I know you will have had the
11 opportunity of reading it and it was drafted, whatever
12 others may think about any desire to waste time, it was
13 drafted in the hope that the matter could be dealt with
14 quite quickly, and you may recall I say for the benefit
15 of others who may not have seen it, we did send it under
16 cover of a letter in which we said we would have been
17 very happy for the Tribunal to distribute it, but to
18 decide the decision without an oral hearing if that made
19 it more efficient or quick to do. We are obviously
20 grateful of adding a couple of words to it this
21 afternoon in the light of comments that others have
22 made.
23 It is obviously right without disclosing anything
24 about priviledged communications between lawyers and
25 clients, it is a matter of fact that the application for
1 judicial review was made on behalf of the soldiers who
2 fired live rounds. In the light of the reasoning of the
3 Court of Appeal it appears to be common ground between a
4 number of us that the question of the implication of
5 that -- the application of that, those principles to
6 other soldiers was a matter which, putting it at its
7 lowest, needed to be considered by the Tribunal, and we
8 wish to give them the opportunity of that, and coupled
9 with it such application we felt obliged to make on
10 behalf of our clients who appeared to be affected by the
11 reasoning of the Court of Appeal.
12 We did so under three heads, which I hope I could
13 just summarise because you have my full argument in the
14 written submission. Our first submission is, as
15 contained really within paragraph 12 of our submission,
16 and it is as simple as this: if, as the Court of Appeal
17 appears to us to have held, there is no compelling
18 justification for naming those whose conduct lies at the
19 heart of your Inquiry, we cannot at the moment see how
20 there can be a more compelling justification for naming
21 those who are less central.
22 It is a very simple point and it is logically
23 right or wrong but it does not get better if I improve
24 it or try and put it another way.
25 THE CHAIRMAN: Yes. If you go back to paragraph 5.
1 MR GLASGOW: Of my submission, sir?
2 JUDGE: Of your submission.
3 MR GLASGOW: Thank you.
4 THE CHAIRMAN: You say that the Tribunal's decision in
5 relation to the anonymity of those who did not fire live
6 rounds should no longer stand. Now that decision itself
7 did not, if I remember it correctly, extend to those who
8 were or might be thought to be in the public domain.
9 MR GLASGOW: No.
10 THE CHAIRMAN: What is the position so far as those people
11 are concerned?
12 MR GLASGOW: Those who are in the public domain?
13 THE CHAIRMAN: Those who are thought to be or could be?
14 MR GLASGOW: It cannot apply. I do not seek to go behind
15 that at all. We regarded them and perhaps I should have
16 made it plain as being wholly outside this
17 consideration. Those who have already been named,
18 perhaps I could take this as an example, I could well
19 understand that an application could be made for naming
20 a soldier who, although his personal conduct was not
21 central in the sense that he fired a live round, he was
22 a senior officer whose conduct was going to come up for
23 investigation, in any event I would never have sought
24 that the ruling was applicable to him, and since the
25 senior officers are named we never thought to bring them
1 into this consideration.
2 THE CHAIRMAN: Help me, what do you mean "senior officer".
3 MR GLASGOW: Those who presently have been named, sir.
4 THE CHAIRMAN: From what rank upwards?
5 MR GLASGOW: It would depend on.
6 --
7 THE CHAIRMAN: The reason I ask this question, because I
8 think one of the judges in the Divisional Court said the
9 officers would be named.
10 MR GLASGOW: Yes, I hope we have always referred in writing
11 and in submission, I did not of course make the last
12 submission, but I hope I am right, I will be corrected
13 if I am wrong in respect of senior officers, by which we
14 meant those in command of the operation by General Ford
15 down to -- of course.
16 THE CHAIRMAN: Down does not help, Mr Glasgow. I am much
17 more interested in up. Who do you regard as being a
18 senior officer? Captain and above, major and above,
19 lieutenant and above; what?
20 MR GLASGOW: The three named senior officers we have referred
21 to are Ford, Brigadier, McClelland and Colonel Ford.
22 THE CHAIRMAN: If at the moment, I do not know this, if
23 there were other or were other Colonels around, does
24 this application extend to them?
25 MR GLASGOW: Yes, it does.
1 THE CHAIRMAN: So that the test is whether they are
2 presently in the public domain, is that right?
3 MR GLASGOW: Yes, and whether or not I was also allowing,
4 sir, that there may be individuals whose conduct may
5 turn out to be so central that there is a compelling
6 justification for naming them for some other reason. I
7 cannot be exhaustive of that because --
8 THE CHAIRMAN: That is why I made the comment earlier about
9 the draft order you are going to present in any event,
10 because the same thing applies to those, does it not, as
11 to the class you are now seeking immunity for --
12 anonymity for?
13 MR GLASGOW: Exactly.
14 THE CHAIRMAN: A number of soldiers have been named over the
15 years, and theoretically at least and sometimes in truth
16 are indeed in the public domain.
17 MR GLASGOW: Yes.
18 THE CHAIRMAN: But if we take those, for example, whose
19 names have been given to the legal representatives of
20 the families, for example in the last year,
21 theoretically they are in the public domain but they are
22 not sort of generally public knowledge Are you seeking
23 anonymity for them?
24 MR GLASGOW: Yes. I think that the right way of dealing with
25 it, if this is helpful and practical, is say where it
1 appears to the Tribunal, perhaps if we leave it in your
2 hands, that a name is sufficiently in the public domain
3 because I hope it is not thought to be invading the
4 issue if I say it is a grey area because somebody's name
5 may be known to individuals, name may be known to some
6 of the legal representatives without it actually being
7 in the public domain. So where there is a name which is
8 believed to be sufficiently in the public domain that no
9 useful or sensible purpose is served by pretending that
10 he should have anonymity before you, perhaps the fair
11 way of dealing with it is if you would be good enough to
12 give us notice of that individual if he turns out to be
13 a client of ours and we can then see whether it is
14 necessary to make any application which could, of
15 course, be dealt with on paper in respect of that
16 individual. But where there are names that are in the
17 public domain in the full sense of that word, they have
18 appeared on television with their name being used or
19 photograph and a name has appeared in the newspaper, I
20 anticipate that it is unthinkable we would waste yours
21 or anybody else' time by arguing over it.
22 THE CHAIRMAN: We may not argue over it but it actually
23 leads to another point that the anonyomising of a large
24 group of people is going, at its lowest, to cause
25 administrative difficulties.
1 MR GLASGOW: We appreciate that.
2 THE CHAIRMAN: And those might to a degree be lessened if we
3 accepted your application if it, in fact, made more or
4 less all soldiers anonymous, in one sense you could say
5 it is producing a farcical situation, but in another
6 sense we have to work with what the Court of Appeal says
7 and the ramifications of what the court of a appeal
8 says, and administratively it may be simpler to take the
9 route I have suggested if you are otherwise right.
10 MR GLASGOW: If I am otherwise right. I mean, if we are
11 wrong the difficulties that have been referred to
12 already by my learned friends fall away completely and
13 everybody can be named, other than the lettered
14 soldiers, and I hope I am not being so presumptous, we
15 are obviously right and therefore we give no
16 consideration to that. Of course we accept. If we are
17 wrong and you decide the middle ground for which we
18 contended in the early stages, that there was a greater
19 need for protection of soldiers who fired live rounds
20 and therefore everybody else can be named, I have to
21 accept that the administrative problems otherwise
22 associated with that fall away as well.
23 THE CHAIRMAN: As long as the problems are not insuprable
24 the fact there are administrative problems should not
25 necessarily be the decisive factor, indeed it probably
1 should not be the decisive factor at all.
2 MR GLASGOW: You never indicated they would be decisive at
3 all but they are a problem for all of us, a problem for
4 us as well. Obviously we have to prepare by either
5 letters or/and some kind of complicated way as everybody
6 else does and that is not decipherable, we wholly accept
7 that.
8 If I could then very briefly remind you of the
9 three grounds in case there is --
10 THE CHAIRMAN: I am sorry. Just to make sure I have got it
11 clearly in my mind, you are, so far as the people you
12 represent are concerned, seeking anonymity for everybody
13 who has not already received it from the Court of
14 Appeal, unless their names are sufficiently, as you put
15 it, in the public domain a matter for which it is for
16 the Tribunal to decide in any given case.
17 MR GLASGOW: Yes, sir.
18 MR GLASGOW: The first reason, the first submission we made
19 is that as I said in paragraph 12 of our submission,
20 which I have just summarised in a single sentence. I
21 think it is a simple matter of logic about which we are
22 right or wrong, I venture to suggest it does not get
23 better if I repeat it, put it in another way.
24 THE CHAIRMAN: I think I understand it. It is to the effect
25 that the logic and reasoning of the Court of Appeal
1 inevitably leads to the conclusion that other soldiers,
2 save for those who are already sufficiently in the
3 public domain, should, if they wish it, to have
4 anonymity.
5 MR GLASGOW: Yes.
6 THE CHAIRMAN: What is the difference between your first way
7 of putting it and your second way of putting it? Is it
8 simply a matter of timing, or what?
9 MR GLASGOW: Yes, and to the extent that one repeats the
10 argument, maybe that does not help, but the second
11 section from 13 onwards is really just if, as a matter
12 of pure logic we are wrong about the first point, the
13 questions that we raise, either there are still material
14 because the way I would put it is this: If you feel that
15 is nonetheless right to reconsider the impact on your
16 public investigative function of not naming the less
17 central figures, we would submit that you can only do
18 that when their role has been determined, and it is one
19 point which is perhaps assisted by my learned friend
20 Mr Mansfield's submission, because perhaps the most
21 compelling illustration of that point is made by my
22 learned friend, Mr Mansfield, who asserts that,
23 perfectly reasonably, not all those who fired live
24 rounds on the day have been identified, and certainly
25 they are not all included in the list of lettered
1 soldiers before the Court of Appeal. And if that is
2 right it would be very odd if they were all to be named
3 and included among those people who were going to be
4 named, in shorthand as of today, would be a soldier who
5 at some stage in the future, my learned friend
6 Mr Mansfield on proper notice will be saying: Well, you
7 are a soldier who fired a round. As to which the answer
8 in certain cases will be: Yes, and I have always said
9 so, gave a statement and said so at the time. And the
10 lacuna or one of them left by the Court of Appeal, or
11 perhaps the way it was dealt with before you and before
12 the Court of Appeal is that that person at the moment
13 would come under the intended protection of the
14 Court of Appeal suggested we should give, but in fact
15 would be named unless you were to do something about it
16 today. And I accept for the purposes of this argument
17 at full weight what my learned friend Mr Mansfield says
18 is powerful and right.
19 At the other end of the scale there may be people
20 against whom no allegation is going to be made that they
21 did anything at all, that it was personally improper,
22 let alone that they fired a round. They may have been
23 doing something very less significant, but that the role
24 that they played ought to be looked at before a decision
25 is taken as to whether or not it can conceivably be said
1 that there is some compelling justification for naming
2 them, once one has put the argument the way round that
3 the Court of Appeal were suggesting we ought to, and
4 that was why we respectfully submit that even if we are
5 wrong, as a pure matter of logic under the first
6 submission, we just restate that as a matter of timing
7 and say if you do feel that you have got to reconsider
8 the matter and cave to grant blanket anonymity, and I
9 appreciate full well that although that may have a
10 logical attraction it may be so offensive to some people
11 that it would be wrong to grant it, just as a pure
12 matter of logic. We still --
13 THE CHAIRMAN: I am being very slow, Mr Glasgow. I do not
14 myself for a moment see very much difference between the
15 first and second method of approach. The first method
16 of approach is that we are bound by the reasoning of the
17 Court of Appeal to extend anonymity, as you are
18 suggesting we should.
19 MR GLASGOW: Yes.
20 THE CHAIRMAN: The second is that we are not bound but
21 should in any event do so?
22 MR GLASGOW: That if you are not bound you should consider
23 each case either on an individual or a group basis. If
24 you say, as a matter of logic we do not agree with the
25 submission you have made under paragraph 12, we are not
1 bound to grant anonymity, nonetheless the fact that you
2 have got to consider if the Court of Appeal's ruling is
3 followed, whether or not there is some compelling
4 justification in each case that consideration can only
5 be given in the light of some knowledge of what the role
6 of the individual who is arguably entitled to anonymity
7 may have been, and that is illustrated at the two
8 extremes at the top end by my learned friend,
9 Mr Mansfield's, suggestion that there may be among the
10 present soldiers who, but for this application, would
11 have been named, there may actually be soldiers who
12 fired live rounds among them or at the lower end of the
13 scale there may be a soldier who is changing a tyre on a
14 bridge. He's given a statement because he saw something
15 but his role is so insignificant or tangential, as it
16 was described by one of the judges, that there would
17 appear to be no necessity for him to be named and,
18 therefore, if one adopts, as we respectfully submit the
19 Tribunal should, the approach which is now being laid
20 down by the Court of Appeal that once you are satisfied
21 that there are genuine and reasonable fears, the
22 question that has to be addressed is whether there is a
23 compelling justification that requires naming. That
24 exercise can only be conducted against a knowledge,
25 which at least the Tribunal will have at an early stage,
1 of the role that that individual plays.
2 THE CHAIRMAN: Yes.
3 MR GLASGOW: The third approach is that if we are wrong on
4 both of those grounds that you feel entitled, even on
5 the evidence that you have got at the moment, to make a
6 ruling about the anonymity of all remaining soldiers,
7 there are a number of factors which ought to be taken
8 into account in accordance with the Court of Appeal's
9 directions which we have set out on the last two and a
10 half pages of our submission. There are five of them.
11 The first is they start at paragraph 20 onwards.
12 The first is the point that I was just touching on
13 that in the case of -- we would have submitted probably
14 a large number of soldiers that their role is so
15 peripheral or tangential that it is difficult to see on
16 the Court of Appeal's test that there can be any
17 compelling justification for naming them and,
18 ironically, we felt that perhaps the best illustration
19 of that was to be found in the dissenting judgment in
20 the Divisional Court of Mr Justice Hooper where he used
21 the words "limited or marginal role", and even he was
22 prepared to accept that there must be soldiers whose
23 role was so limited or marginal it was difficult to
24 conceive why they should be named, always accepting they
25 came within the general class of soldier who you have
1 accepted in both your decisions entertain genuine and
2 reasonable fears for their safety. The first is those
3 who are peripheral or limited in their role. The second
4 we address under paragraph 21.
5 We ask you to bear in mind when considering
6 whether or not anonymity should be extended or limited
7 to the present group of soldiers, the effect of not
8 naming the central figures which automatically exposes
9 those who are less central to a slightly more elevated
10 role. It is a gradual process and it is a question of
11 degree, but obviously if you have a large group of
12 soldiers, I do not know how many it is realistically
13 anticipated may give evidence to you, sir, but if we
14 talk in round figures of something over a hundred, if
15 you take out the central figures and say: Well, they
16 are not going to be named, the others all move up
17 slightly in gradation as being potential targets,
18 because they are named. And that is the point we seek
19 to make under paragraph 21.
20 It is closely related to, but not the same as the
21 point that we briefly make under paragraphs 22 and 23,
22 which is perhaps a little bit more worrying, which is
23 what we headline as identification by elimination. If,
24 for example, I would remind myself of the helpful
25 submission my learned friend Mr Clarke made this
1 morning, that one of the lists that we know is in
2 existence is the list of at least some of the platoons
3 and support company. Now we do not know what
4 circulation that list has enjoyed. We have read a lot
5 of accounts of people who say we know who everybody is
6 anyway, there have been claims in the press which I am
7 sure have some basis for them, but we simply do not know
8 what the truth is and it is beyond our powers of
9 investigation, and it would not be very helpful if we
10 tried to do what the Tribunal is trying to do of going
11 to the Press and asking what information they have got.
12 But if there are lists, certainly if they are in limited
13 circulation of the members of a particular platoon, one
14 of the unhappy consequences of excluding certain names
15 from it in accordance with the direction of the Court of
16 Appeal or finding of this Tribunal, is that it
17 identifies by exclusion those who have been, so to
18 speak, blanked out. You look at a list of the members
19 of the platoon and those already in circulation and you
20 see certain names which were on list that have been
21 blanked out, it means they were shooters on the present
22 way of doing things and that is an unfortunate and an
23 unintended consequence, the effect of which is
24 completely obliterated. If in fact you say unless there
25 is some compelling reason for taking away anonymity of
1 the less central players we grant anonymity to all the
2 members of that platoon who would otherwise be
3 identifiable by elimination.
4 The fourth is the point which comes really from
5 the Ministry of Defence's helpful submission at all
6 stages. It is not a point we make separately because it
7 depends on matters of expertise of which we know
8 nothing. It is the question of necessary level of
9 threat. It is no more subtle or grand than this. That
10 is something which shifts all the time, and something
11 which we know that the Tribunal has always acknowledged
12 and is aware of, and if it does shift all the time the
13 risk that the threat is going to become more significant
14 is something that has to be borne in mind, in our
15 submission, when deciding at this stage, as distinct
16 from the report stage or even the stage of taking
17 evidence you would be minded to take anonymity away.
18 And the last, and we put it last because, of
19 course, I recognise that it is offensive to a number.
20 --
21 THE CHAIRMAN: Just before you do, I do not know if you are
22 aware that in the middle of paragraph 24 you say the
23 same category of threat, significant at the date of the
24 last threat assessment falling to moderate around the
25 time of the Tribunals's second decision and currently
1 unknown. In fact it is currently known, it is moderate.
2 MR GLASGOW: I am very grateful, sir. We only knew that this
3 morning but we were told that this morning as I think
4 everybody else was told at the same time, there is no
5 special channel of communication to us and it has now
6 been handed around during the short adjournment.
7 THE CHAIRMAN: Thank you.
8 MR GLASGOW: The last matter is the Widgery assurance, and
9 perhaps you'll forgive me for saying again we put this
10 last on the list because we're acutely conscious of the
11 fact that any suggestion this Tribunal is in any way
12 bound by Widgery is offensive and we understand why it
13 is and we have never sought to put it on that basis. We
14 seek to put it no higher than the Court of Appeal
15 suggestion that it is a factor that ought to be taken
16 into account, but is one you said ought to be taken into
17 account that some people believed they have enjoyed
18 anonymity over the past 27 years and therefore when
19 considering a much wider range of blanket people who
20 have remained anonymous, the fact you'll be taking away
21 some people as a matter of fact have enjoyed, putting it
22 bluntly, it is not the fault of an individual soldier
23 that the process by which he was granted anonymity is
24 institutionally offensive or wholly wrong in law. I put
25 it that high. There may be considerable merit in the
1 arguments that are ranged against us on that argument.
2 It simply does not effect the position of an individual
3 soldier who was told that he was going to be anonymous
4 and has, in fact, enjoyed anonymity. That is one of the
5 important reasons we would respectfully suggest that
6 people might bear in mind, we represent individual
7 soldiers not the Army or some organisation which is
8 alleged to have persuaded Lord Widgery to grant
9 something that he should not have granted, and those are
10 the reasons why in the light of the logic of the
11 Court of Appeal we felt obliged to raise before you the
12 question of the impact on the rest of the soldiers,
13 because in our very respectful submission it does apply
14 to them, and certainly at this stage their anonymity
15 should be continued at least until the Tribunal has been
16 able to make some informed decision as to the central
17 nature, if at all, of the role which they played, and
18 unless I can expand upon them further I pray in aid the
19 submissions which we took some care over. I hope they
20 are helpful. I do not think it would help you if I
21 tried to put them in any way other way, but I remain, as
22 always, ready to assist if I can.
23 THE CHAIRMAN: Yes, thank you very much.
24 MR GLASGOW: Thank you, sir.
25 THE CHAIRMAN: Who is going to be next?
1 SIR ALAN GREEN: Sir, so far as Mrs Duff is concerned, who
2 instructs me she has also been instructed by three Royal
3 Military Policemen, and they, of course, have to be
4 considered in relation to the question of who is or is
5 not in the public domain, and you'll appreciate that
6 when I say straight away that those three took
7 statements which have been considered and, of course,
8 have been circulated. But subject to the question of
9 whether they are in the public domain or not I simply
10 adopt the submissions that have already been made to you
11 by my learned friend Mr Glasgow.
12 THE CHAIRMAN: And on whose behalf are you making that
13 submission?
14 SIR ALAN GREEN: Sir, I make that submission in relation to
15 the three clients of Mrs Duff.
16 THE CHAIRMAN: Yes. Thank you.
17 SIR ALAN GREEN: As I say, subject to the public domain
18 question, which I acknowledge.
19 THE CHAIRMAN: Yes, thank you very much. Next.
20 MR WEIR: If this is the submission on behalf of the
21 Ministry of Defence I wonder whether I can make a
22 preliminary observation in relation to it and ask for
23 some assistance?
24 Earlier I mentioned four, perhaps five categories
25 of people which appear to encompass the soldiers. As
1 far as the Ministry of Defence are concerned my
2 difficulty about their involvement in the anonymity
3 application is what their status is. As I understand it
4 one can make an application on behalf of clients.
5 Client may say "I wish to apply for anonymity". In this
6 case the Ministry of Defence is involved, although not
7 at the moment party of proceedings, on behalf of
8 untraced soldiers. Now those soldiers must be untraced
9 either because of the fact of their presence on the day
10 is still not known, or because they do not know they are
11 being sought, or because they do know they are being
12 sought but choose not to come forward. It therefore
13 cannot be that the Ministry of Defence have instructions
14 from anyone in the untraced category. To make an
15 application for anonymity in those circumstances, I have
16 very great difficulty in seeing how an application can
17 be mounted on behalf of individuals who may or may not
18 wish to claim anonymity, since at the moment they are
19 untraced, and I just wonder, sir, whether you could give
20 some assistance to us in relation to that.
21 THE CHAIRMAN: Does it really matter, since they have not
22 added anything to the submissions that have just been
23 made by Mr Glasgow?
24 MR WEIR: They have not added anything. Sir, would it be
25 impertinent to suggest that is the second reason why
1 they ought not say anything further.
2 THE CHAIRMAN: Because it is said twice does not mean we are
3 to be doubly influenced. The reason the Ministry of
4 Defence became involved in this -- in this topic and
5 others, was that it was felt that during the process of
6 tracing soldiers it was only fair to have somebody who,
7 at one stage at least, had some responsibility for them
8 to see what help they could give to the Tribunal and as
9 best they could to protect what was perceived to be
10 their interests, bearing in mind that they had been
11 soldiers.
12 MR WEIR: Those are fully understood, sir. With respect,
13 however, the question of anonymity sits in a rather
14 different category to the more general question of
15 helping to find them and liaising with the Tribunal in
16 relation to the protection of their interests
17 generally. To claim anonymity in respect of individuals
18 who are not yet found, in our respectful submission,
19 cannot in principle be right because one asserts a claim
20 for anonymity, as one asserts a claim for privilege, but
21 if one's existence has not, and I do not blame the
22 Ministry for this, but if their existence is not known
23 of, to seek that claim is in the least premature.
24 THE CHAIRMAN: I hear what you say. I am not convinced by
25 it at the moment. Let us go to the starting point, this
1 is an inquisitorial inquiry at the time by the Courts.
2 It is for the Tribunal to make up whether or not it can
3 properly perform its function by granting the soldiers
4 anonymity.
5 MR WEIR: I respectfully and entirely agree with that
6 proposition, and my objection is to the Ministry of
7 Defence claiming a privilege on behalf of non-existent
8 clients.
9 THE CHAIRMAN: I've noted what you say, but subject to the
10 views of my colleagues I am not sure, putting it
11 bluntly, it matters very much at the moment. We are not
12 getting anything new by way of submission. Unless it is
13 being suggested that those soldiers who are still
14 unrepresented still have not been traced, that their
15 interests should simply be ignored in order because of
16 those two factors.
17 MR WEIR: I'm not suggesting that. I thought I would
18 attempt to make it clear I have no objection whatever to
19 their interests being looked after in a broad way, but
20 to seek anonymity is a positive step taken on behalf of,
21 as always, clients. It is implicit in the position of
22 the Ministry of Defence, as I understand it they do not
23 have any clients, and anyone who is found is passed on
24 either to Mr Lawton or to one of the other two at the
25 moment. All we are simply seeking to say is that the
1 Ministry of Defence cannot therefore assert a claim in
2 respect of known clients. It just is -- well, it's
3 rather bizarre, if I may so, to categorise it.
4 THE CHAIRMAN: Why it does not matter is this: If the claim
5 advanced by Mr Glasgow is successful then on the face of
6 it it would be rather unfair, would it not, that
7 nevertheless those who have not been traced or haven't
8 come forward, quite possibly through no fault of their
9 own, should be named, at least at this stage.
10 MR WEIR: Well, they would not be named, sir, with respect,
11 because as I understand the process, and I am grateful
12 for the assistance we have had this morning, as I
13 understand the process, as they are traced they are then
14 passed on to Mr Lawton and he then either keeps them or
15 passes them on to one or other two of the solicitors who
16 seemed to have surfaced, and the point I am making, sir,
17 is no doubt if Mr Lawton's clients obtain the benefit of
18 the ruling, in the event that you make a ruling in their
19 favour, then it would be open to any other clients to
20 take advantage of that ruling if they so choose, but if,
21 of course, they do not want to for some reason take
22 advantage of it they need to be saddled with a ruling
23 they never sought.
24 THE CHAIRMAN: I do not think anybody would be. It may be
25 at the end of the day that some soldiers will say:
1 Well, thank you very much but I do not want to be
2 anonymous and it does not matter whether they are
3 clients of Mr Glasgow's or Mr Aitken's or anybody else.
4 They are not bound to appear anonymously if they do not
5 want to.
6 MR WEIR: Mr Glasgow does not have clients, that is the
7 point. He should not be giving a submission on behalf
8 of non-existent clients -- Mr Hoskins I am sorry.
9 THE CHAIRMAN: Does it really matter? We as the Tribunal
10 have to have an eye to the interests of those soldiers
11 who have not yet got lawyers. It follows, does it not,
12 that if Mr Glasgow's submissions are correct it would
13 probably be quite wrong for us to say: Well, the
14 following soldiers are not represented here therefore
15 they can be named. Surely it would only be fair and
16 just for us to say in those circumstances, at least for
17 the time being, those soldiers too can be anonymous if
18 Mr Glasgow is right.
19 MR WEIR: That, sir, is if you're prepared to reverse the
20 normal order which would seem to imply the proposition
21 that people are anonymous until, as it were, the
22 contrary were proved and until they came in and
23 repudiated the anonymity in which they have been
24 invested.
25 THE CHAIRMAN: That may be one of the effects of the
1 decision of the Court of Appeal.
2 MR WEIR: Sir, I can only deal with the matters --
3 THE CHAIRMAN: I don't want to take too much time. I think
4 Mr Hoskins has finished his submissions in that he
5 climbs on the submissions of Mr Glasgow.
6 MR HOSKINS: I would not quite put it in that way sir, but
7 what I would say to help my learned friend is the
8 circumstances of the involvement of the Ministry of
9 Defence are -- well clearly set out when Mr Burnett was
10 here on April 26th, perhaps if you allow me to reiterate
11 those circumstances, how we had become involved in this
12 issue. We were asked by the Tribunal itself to provide
13 the Tribunal with information concerning the continuing
14 risk to soldiers of giving evidence under their real
15 names. Can I make it clear, as my learned friend has
16 said already, we do not represent any identified
17 soldiers at all. However, the Ministry of Defence's
18 involvement was sought by the Tribunal to safeguard the
19 interests of the soldiers who were then unidentified.
20 That is how we first came to be involved in this matter
21 and we have endeavoured to assist the Tribunal by
22 providing relevant information in our first submissions,
23 and also in providing, acting as a point of contact with
24 the Security Service by way of furthering that
25 information.
1 Again, by way of hopefully trying to assist the
2 Tribunal, we have made submissions as to what we
3 consider to be the correct approach. So, it is not
4 right to say, as my learned friend does, that the
5 Ministry of Defence is making an application for
6 anonymity on behalf of anyone. We are not. We are
7 simply submitting what we believe to be the correct
8 approach to the position in the light of the judgment of
9 the Court of Appeal. Sir, you have seen the short
10 submissions put in, in the light of that judgment and I
11 do not anticipate in the light of what you have already
12 said that I need to take you in any way to those
13 submissions. They set out in fairly short form what we
14 believe to be the effect of the decision, and it was
15 felt it might be helpful to set out almost by way of
16 bullet point for easy reference the submissions which
17 were made in the submissions of April 15th and provide,
18 as it were, a reference point to those submissions in
19 short form.
20 Sir, you are quite correct in thinking that we
21 believe that the effect of the Court of Appeal's
22 decision logically is that anonymity should be extended
23 to all of those soldiers who were involved in Bloody
24 Sunday, save insofar as their names are already in the
25 public domain.
1 Finally, you will by now have seen, indeed have
2 already referred to the threat assessment from the
3 Security Service dated 22nd September 1999. I
4 understand that that has now been circulated to all
5 interested parties and that that is for the information
6 of the Tribunal to assist it in its deliberations. Sir,
7 that is all I propose to say, unless you have anything
8 further?
9 THE CHAIRMAN: No, thank you very much. Who would like to
10 go next?
11 MR WEIR: I think, sir, if I may just deal with it from the
12 point of view of our clients. We have read the
13 skeletons put in on behalf of the other families and we
14 respectfully agree with and adopt their submissions in
15 that regard.
16 I think the crucial point which we would seek to
17 press upon the Tribunal, and I think it is borne out by
18 the submissions which you have heard on behalf of
19 Mr Lawton and on behalf of the Ministry of Defence
20 already, is that as Lord Woolf put it in the last
21 paragraph of the judgment of the Court of Appeal, we
22 were asked to indicate out views as to the position of
23 other soldiers. We would like to do so because we are
24 conscious more attention has already been given to this
25 issue than is desirable, and further dispute should be,
1 if possible, be avoided. However, reluctantly we have
2 come to the conclusion that it would be not right to say
3 more than that. We cannot say on the material before us
4 it would be unlawful for the Tribunal to insist on other
5 soldiers being named.
6 Now our submission is, there is before your
7 tribunal no new material beyond that is available to the
8 Court of Appeal. And that court's conclusion therefore
9 is as good now as it was when they expressed it.
10 The second point, sir, that we would like to make
11 is --
12 THE CHAIRMAN: Well, it's a bit delphic, if the Master of the
13 Rolls will forgive me for describing it, because if he
14 is saying that our ruling as far as the other soldiers
15 was correct he would not have used the expression,
16 "However, reluctantly we have come to the conclusion
17 that it would not be right to say more than that", that
18 would be a meaningless thing to say, would not it?
19 MR WEIR: And, sir, reading as best one can, it seems to
20 suggest had there been such material the court would not
21 have found it difficult to be persuaded in relation to
22 the non-firers as well as in relation to the firers, but
23 in the absence of such material it came, and why the
24 word reluctantly appears one can only guess, it came to
25 the conclusion that there was not a basis for such a
1 finding, and we simply make the point that before you
2 today the position from the point of view of evidence
3 and, indeed, from the point of view of submissions is
4 not at all improved over that as it was at the time of
5 the Court of Appeal's deliberations.
6 THE CHAIRMAN: No, I do follow that but I do have a problem,
7 Mr Weir, because the logic of the Court of Appeal's
8 decision appears to be that one more or less puts on
9 one's side what the Tribunal thought was its duty to
10 carry out a public investigative function in
11 circumstances where people have a reasonable fear for
12 their personal safety if they are named, and if people
13 have a reasonable fear for personal safety for being
14 named then there must be some overriding justification
15 for naming them, and the public nature of the Inquiry is
16 not such a justification.
17 MR WEIR: Yes, well I think --
18 THE CHAIRMAN: If that is right and we have faithfully to
19 take it as being right, then that sort of reasoning
20 applies to the soldiers who did not fire or who are
21 presently not alleged to have fired.
22 MR WEIR: Yes, sir. Well, may I make a response to that?
23 It does seem, on reading the judgment of the
24 Court of Appeal, that it has, if I say so with respect,
25 rather lost sight of the balancing exercise this
1 Tribunal is obliged to carry out. It is not an end to
2 the matter --
3 THE CHAIRMAN: That may or may not be so, Mr Weir, but the
4 fact of the matter is we are bound by it and that is a
5 decision to which we must loyally give proper force.
6 MR WEIR: You are bound by relation to the firers, but no in
7 relation to the non-firers, which is why this further
8 set of applications is being made.
9 THE CHAIRMAN: When I say "bound" I mean bound by the
10 reasoning in it, and if the reasoning in it is equally
11 amicable to, shall we say the non-firers, then it is our
12 duty to apply it.
13 MR WEIR: Sir, had it been, with respect the Master of the
14 Rolls would not have come, as he puts it, to the
15 conclusion that it would not be right to say because he
16 has not done, as some of the skeleton arguments tried to
17 suggest some skeleton arguments seek to suggest it is
18 not surprising this is the view he expresses, because an
19 application of none firers was not before the court. He
20 is expressly saying: Notwithstanding the fact an
21 application for non-firers is not before the court, we
22 would like to say something on the subject, and he goes
23 on to say that in relation to the non-firers it does not
24 seem to them, we cannot say on the material before us it
25 would be unlawful for the Tribunal to insist on other
1 soldiers being named. So there does seem to be some
2 appreciation on behalf the Court of Appeal there is a
3 balancing to be carried out and where that balancing act
4 carries on the one hand firers, and on the other hand
5 non-firers, there may be a difference of degree and the
6 weight on either side of the balance may differ.
7 If the Court of Appeal concluded that the weight
8 in the balance in respect of firers brought the balance
9 down in favour of anonymity, the Court of Appeal is
10 clearly saying here on the material before it that it is
11 not satisfied that it brings the balance down on--
12 THE CHAIRMAN: The balance you are talking about would be a
13 balance between what factors? The degree of risk which
14 in one sense at least is on the assessment we have got
15 lower for the non-firers than it is for the firers, so
16 the degree of risk goes down on that side. But then
17 equally couldn't it be said that what goes down on the
18 other side is the central importance of these other
19 people, because in our previous ruling which has now
20 been overturned we, the Tribunal, took the view that
21 those who fired shots were at the very centre of this
22 Inquiry, for what seems to us to be pretty obvious
23 reasons?
24 MR WEIR: Sir, our submission would be at the centre of this
25 Inquiry, the centre of this Inquiry is the need to
1 command public support and confidence, and you do not
2 command public support and confidence by having a
3 procession of people, many of whom may have only
4 previously been involved doing their duty on that day.
5 THE CHAIRMAN: I am sorry to interrupt you again, but our
6 last ruling acknowledged and, indeed, accepted that for
7 the people who were central, in our view, to the
8 Inquiry, but we have been told we are wrong.
9 MR WEIR: The same must also be true so far as others are
10 concerned and, indeed, it becomes more difficult for the
11 public to understand the situation where people not
12 themselves are accused of any wrongdoing, nonetheless
13 need to be identified by a number, and an attempt has
14 been made, if I may say so, sir, in the latest
15 submission, to try to use an argument which is, well,
16 perhaps I might categorise it as audacious, the
17 suggestion is once you remove the firers they are
18 something like a bottle of milk with the cream on the
19 top and then the people who are underneath the cream
20 will rise to the surface and will become targets for
21 terrorists who are seeking, as one of the submissions
22 says, a suitable target to murder or maim.
23 Well, with respect that is a preposterous
24 proposition, utterly preposterous, simply to suggest
25 because you do not identify by name people who are
1 involved in shooting, that somehow people who are
2 involved perhaps in a peripheral way on that day doing
3 their job are to be targets to murder or maim. If
4 targets to murder or maim are being sought I think all
5 of us know that they will be much more readily sought
6 from amongst the ranks of soldiers 30 years ago doing
7 their duty here, and to conceal their identity in a
8 blanket fashion, because, sir, we have no objection to
9 people making applications on anonymity on a case by
10 case basis, nor do we have objections to a proper case
11 you, sir, granting that, but to make a blanket
12 application for anonymity on this, I think I must
13 describe it as fatuous basis in our respectful
14 submission does nothing, and will do nothing to enhance
15 the standing of this Inquiry among the public.
16 THE CHAIRMAN: Is it as fatuous as all that? A soldier who
17 did not fire could he not say: I am being treated
18 unfairly by being named because those who were right at
19 the centre of this awfully event who actually shot in
20 the streets on that day all have the benefit of
21 anonymity and I, who am not at the centre, am now to be
22 named, and it simply is not fair.
23 MR WEIR: But, sir, if I might rhetorically ask the
24 question; what is wrong with being named? If you are
25 coming along here as a member of the Army to describe as
1 best you can what you saw happen here on that day, why
2 not be named? Why not give your name? What possible
3 reason can there be? What possible opprobrium would
4 attach to a person coming along here as an honest
5 account what they did on that day with the Army? To
6 that the only answer is they are rising like skimmed
7 milk to the top of the milk bottle because the cream has
8 been removed. Well, sir, with respect a moment's
9 consideration exposes the fallacy of that.
10 THE CHAIRMAN: Help me on this if you would, Mr Weir. What
11 do you say the logic of the Court of Appeal's decision
12 is, because at the moment I am finding difficulty in
13 what has been suggested to be the logic of that decision
14 of being able to distinguish between firers and
15 non-firers? They seem to start off saying if there is a
16 reasonable fear of personal safety then there has got to
17 be an overriding justification before they are named.
18 Being central to the Inquiry, that is to say people who
19 are shot, is not a strong enough -- people who are shot
20 is not a strong enough overriding circumstance. So the
21 non shooters must be even less strong? This is the
22 difficulty I find with this delphic remark of the Master
23 of the Rolls, because I find very much difficulty
24 distinguishing firers and non-firers of the logic of the
25 reasoning of the Court of Appeal.
1 MR WEIR: Doing the best I can to understand the judgment
2 what they seem to be saying is, people -- these central
3 people, these people who are of importance, crucial
4 importance, central importance in the Inquiry, have such
5 a degree of reasonable fear, if I may put it that way,
6 no one doubts the honesty of their fear, the question is
7 how reasonable is the fear, or what is the extent of the
8 fear which they ought reasonably to fear, and the
9 Court of Appeal appears to have taken the view people
10 who have actually been involved in shooting may
11 reasonably fear some considerable degree of personal
12 risk, but on the other hand those who were not so
13 involved, people who were, as I say, simply present
14 doing their duty on the day will not have such a fear
15 because they are not recounting any involvement which
16 would bring down upon them the sort of attack that is
17 being suggested.
18 THE CHAIRMAN: I do follow that in one sense, but I fail to
19 see in the judgments in the Court of Appeal much, if
20 any, reliance being placed on the different degrees of
21 risk.
22 MR WEIR: Well, it's difficult, sir, with respect, to know
23 what else they could have had in hand. I respectfully
24 agree it is not spelt out, but it is difficult to know
25 what else they had in mind, but that in the final
1 sentence of the judgment, the final sentence of
2 paragraph 69 --
3 THE CHAIRMAN: Well, sorry to repeat it, that is what makes
4 it so delphic because they did not say so.
5 MR WEIR: One has the clear impression, sir, if I may say
6 so, if they could have thought of some reason to express
7 the view, although the matter was not before them that
8 anonymity for non shooters was appropriate, it would
9 rather seem from the way in which Lord Woolf expresses
10 himself, he would not have been sorry he reached that
11 position.
12 THE CHAIRMAN: Maybe.
13 MR WEIR: Well, the use of "reluctantly" would seem to imply
14 that.
15 THE CHAIRMAN: So I think your submission on this is that do
16 not those final remarks, looking at the judgment as a
17 whole, be supported if indeed, although it is not said
18 so expressly by the Court of Appeal, implicitly did take
19 into account the different degree of danger expressed by
20 the security report between the soldiers who fired and
21 those who did not.
22 MR WEIR: Yes, and that is why this cream and skimmed milk
23 argument has lately presented itself. And could I just
24 say this, sir, I'm not aware we have got luminous
25 accounts of the many various terrorist attacks on the
1 forces over the last 30 years, I'm not aware of any case
2 where a witness was brought to court either as a police
3 witness or a soldier was attacked on his way there while
4 there, or after leaving there.
5 THE CHAIRMAN: That is doubtless true, Mr Weir, but those
6 points were points made to the Court of Appeal.
7 MR WEIR: Yes, but I think, sir, one has to balance it again
8 against what the involvement of the individual was, and
9 an application for blanket anonymity, in our submission,
10 cannot be sustained.
11 THE CHAIRMAN: Well, thank you very much. Is there anything
12 else you want to add at this stage?
13 LORD GIFFORD: Members of the Tribunal, submissions on
14 behalf of the Wray family are to be found at four in the
15 bundle which has been helpfully prepared. May I in
16 briefly amplifying them take the point which has just
17 been discussed because it is our submission that there
18 is, on the evidence which was before the Court of Appeal
19 and which is before you, a major difference in the
20 degree of risk faced by those who fired live rounds and
21 those who did not, and would add to the first category,
22 as we do in our submissions, soldiers or indeed any
23 other witness whose evidence is so controversial and
24 susceptible to opposition by one faction or another,
25 that their lives can be taken to be equally at risk with
1 those who fired live rounds. My submission is that the
2 Court of Appeal in its last sentence in referring to the
3 material which was before it recognised that that
4 material indicated a crucial difference between the
5 extent of danger faced by the firers, and one need look
6 no further than the introduction to the threat
7 assessment which is to be found at page 62 of the bundle
8 of submissions to see how that contention was correct.
9 In the second last paragraph on page 62, the
10 Security Service said this:
11 " Some categories of soldier would be more
12 attractive targets than others if a
13 successful attack could be carried out. In
14 particular, members of the special forces
15 and senior officers who had served in
16 Northern Ireland would stand out from the
17 generality of serving soldiers as being
18 more likely to attract terrorist attacks.
19 In the case of soldiers who had fired live
20 rounds on Bloody Sunday our assessment is
21 that their actions at that time would make
22 them also stand out from the generality of
23 soldiers and to face a higher likelihood of
24 terrorist attack if they were identified."
25 And sir you and your decision, and I took up that point
1 in a passage which I do not think has been criticised by
2 the Court of Appeal, which is paragraph 27 of your
3 ruling for 5th May, and if I may go back to that, which
4 is tab 1 of the bundle of rulings, page 11, paragraph
5 27, I think I can go to about -- read the whole
6 paragraph:
7 "We accept that on the basis of this
8 assessment and the other material provided
9 to us by the Ministry of Defence identified
10 soldiers are in greater danger than
11 unidentified soldiers for the reason that
12 if a soldier is identified, as such, there
13 is only as the assessment puts it a
14 potential as opposed to an actual threat.
15 However, we do note that all serving
16 soldiers fall within a significant category
17 so all are priority targets. It seems it
18 is only those who fired live rounds on
19 Bloody Sunday who stand out or stand out
20 significantly from the generality of
21 soldiers. As to this generality it seems
22 to us since there must be many soldiers or
23 ex-soldiers whose names have been published
24 or identification could be readily
25 discovered, for example, from regimental or
1 similar magazines such as the one shown to
2 us in the hearing, the danger created of
3 identified soldiers is one that is borne
4 and has for many years been born by
5 hundreds, if not thousands, of serving or
6 former soldiers, and is not such to
7 override our duty to conduct a public
8 investigation".
9 And then, sir, you went on to consider the soldiers who
10 fired live rounds. So that, sir, in your ruling you
11 drew a line in terms of your assessment of risk, and the
12 assessment of risk is equivalent to the assessment of
13 reasonableness of the soldier's fear, and quite rightly,
14 because it was expressly so stated in the Security
15 Service and by the Ministry of Defence in a passage
16 which we quote in our submissions, you identified that
17 there was an outstanding danger which we in our
18 submissions have characterised as the danger of
19 retributive action which was faced by those who were
20 seen as the killers on Bloody Sunday.
21 We ask you to draw that line today, because
22 somewhere a line must be drawn to those who can be said
23 to have a genuine and reasonable fear of danger and
24 those who may include all kinds of people connected with
25 this Inquiry who may have a fear of danger which is
1 fanciful. If all soldiers by virtue of being soldiers
2 are able to claim anonymity then one can well ask why
3 not police, why not civilian witnesses, why not anyone
4 who may have something unpopular to say or controversial
5 to say to this Inquiry, and we would submit that it is
6 consistent with the evidence that you draw a line, and
7 we invite you in our submissions, perhaps I can just
8 repeat the way we put it, that those who face this
9 danger of individual reprisal, and we put in that
10 category in paragraph 11, page 85:
11 " If one looks at the danger of individual
12 reprisals the highest that one could
13 reasonably put the case is that the
14 soldiers who fired live rounds and some
15 others who played significant roles or who
16 had significant testimony, I would add,
17 which might be the object of opprobrium,
18 hatred, might be at risk if their names
19 were known, and such others could be
20 considered in the course of special reasons
21 applications".
22 We accept that to make a decision today that there
23 should be no blanket anonymity does not validate the
24 part of your ruling in May and in December that
25 soldiers, or anybody else who had particular reason to
1 fear the consequences if their names were known by
2 reason perhaps of the unpopularity of their testimony,
3 and I would include in that soldiers who might have --
4 who might step out of line and have evidence to give
5 which would be strongly disliked by other soldiers or by
6 the Loyalist community or Loyalist paramilitaries, such
7 people could put their case on the testimony they were
8 going to give in specialist application.
9 But we submit it is right and necessary for the
10 Tribunal to draw the line there and not to scoop into
11 the anonymity bucket every single soldier, Qua soldier
12 in respect of whom objectively the risks and the fear of
13 danger stands full, and I wholly support my learned
14 friend, Mr Weir, with his vastly greater experience of
15 the realities of life in Northern Ireland, says about
16 the submission as to the concept that if a terrorist
17 cannot hit a firer they will turn their attention to try
18 to identify and locate and go through the laborious
19 process of firing and then killing a non firer. It is
20 preposterous and fanciful.
21 The reasons why we say that a line should be drawn
22 is that to grant anonymity to potentially hundreds of
23 witnesses, your counsel said that 579 soldiers have
24 been, as it were, targeted for interview, my learned
25 friend Mr Glasgow, while I appreciate he cannot give any
1 names, or even the symbols of his client's at the
2 moment, indicated that he had some 400 of them, of whom
3 only 16 are lettered soldiers and for this Inquiry, many
4 of those 400 or 500, a substantial proportion are going
5 to be called I am sure as live witnesses, and for them
6 all to be anonymous raises a number of questions.
7 First, it will have an effect upon the openness of the
8 Inquiry, and your public investigative function and I
9 remind you, sir, that the Court of Appeal did not throw
10 the public investigative function out of the window. It
11 indicated that it was an important consideration but it
12 was outweighed by the considerations of fairness to the
13 --
14 THE CHAIRMAN: In one sense they did not, Lord Gifford, but
15 they seemed to form a valued judgment that the anonymity
16 of the firers would not make great inroads into the
17 public investigative function.
18 LORD GIFFORD: Yes, in paragraph 54 the Court of Appeal
19 said:
20 " The Tribunal is undoubtedly right in
21 identifying it has these duties. However,
22 having regard to what we have already said
23 it is clear that the Tribunal is also under
24 a further duty, and that is a duty to be
25 fair to the soldiers".
1 And of course they amplified that.
2 THE CHAIRMAN: Which paragraph is that?
3 LORD GIFFORD: Paragraph 54, sir, at page 15 of the
4 judgment, tab 6.
5 THE CHAIRMAN: Yes.
6 LORD GIFFORD: You know at paragraph 53 the Court of Appeal
7 repeats your emphasis on the public investigative
8 function.
9 THE CHAIRMAN: Yes, the point I was trying to make was
10 this: the Court of Appeal certainly accept, as I
11 understand it, such a duty exists as we state it had in
12 our ruling, but they then decided sort of valued
13 judgment that the inroads into the public investigation
14 function would be small in relation to the soldiers who
15 fired. The point can be made if that is right, and I
16 suppose we are bound by it, it would be even smaller in
17 respect of those who did not.
18 LORD GIFFORD: That is not quite right because although the
19 significance of the evidence that the firers gives may
20 be central, the evidence of those who are not firers but
21 are witnesses to firing, or to something relevant, is
22 also of significance and in sheer numbers. The
23 difference in openness but between an Inquiry which
24 spends, let us say, three months examining a procession
25 of people referred to by cipher, an Inquiry spends three
1 months examining a number of witnesses, a few of whom
2 are referred to by cipher is considerable. The proposed
3 application puts the blanket of anonymity on a swathe of
4 the Inquiry which will not give any confidence to the
5 public. They will find it very difficult to follow,
6 apart from anything else. It is all very well for
7 counsel to be able to remember that witness number 401
8 was in the same platoon as witness 203, and therefore
9 may have something -- and also in the same platoon as
10 letter F and therefore they all may have something the
11 same to say about the same incident. We will find it
12 difficult. The public will find it impossible to follow
13 with any logic the evidence if everyone is in code, and
14 I submit it is not just a question of the relevance or
15 significance of the testimony, but although in some
16 cases that may be great, it is also a question of sheer
17 numbers, the quantity of code satisfied witnesses which
18 will undermine the public investigative function.
19 Now, sir, the Court of Appeal does say that
20 fairness to the soldiers requires that if there is a
21 genuine risk to them, a reasonable fear on their part
22 that their lives will be in danger, that must prevail,
23 but what I think has happened is because at an early
24 stage in your December ruling you mentioned that the
25 soldiers had a fear which you could not characterise as
1 unreasonable, and you did not there make -- although you
2 made gradations you lumped all soldiers into one
3 statement which you then repeated in May, in reality the
4 evidence, and in reality your assessment of the evidence
5 shows that there is a chasm, a wide gap between the
6 dangers faced by the key players and the dangers faced
7 by the generality of the soldiers and the Security
8 Service so says.
9 MR HOYT: Lord Gifford, the assessment does not describe
10 that wide chasm.
11 LORD GIFFORD: It uses a different method. There is a
12 mountain that stands out in the plain. They stand out
13 from the generality of soldiers and that statement is
14 repeated in different words by the Ministry of Defence
15 in its submissions on page 37 of the bundle.
16 LORD GIFFORD: Perhaps it is coming from two sources. I
17 need to emphasise what is put in our submissions. At
18 paragraph 37 -- sorry page 37 of the submissions bundle,
19 paragraph 41 of the Ministry's submissions of April --
20 well, perhaps before I read paragraph 41 can I first go
21 back to paragraph 2 on page 18 because that is the part
22 of the introduction:
23 " The Ministry of Defence in its
24 introduction invited the Tribunal to apply
25 anonymity to all soldiers, but said in a
1 frank statement at the bottom of page 18:
2 " It is however the position of the
3 Ministry of Defence that the arguments
4 which follow have greater force in respect
5 of the soldiers who fired".
6 And in amplification of that we have paragraph 41 on
7 page 37, and I will read the paragraph:
8 " During hearings of the Inquiry some
9 soldiers will face grave accusations that
10 the Ministry of Defence believes there is a
11 real danger that these men, if named, will
12 be identified as potential targets,
13 whatever the outcome of the Inquiry, and
14 that terrorists may feel justified in
15 taking retributive action (I stress that
16 word) of their own, if for whatever reason
17 the men against whom the most serious
18 allegations are made or not charged with
19 criminal offences. The Tribunal's
20 deliberations which are likely to extend
21 over many months will cause interest. The
22 risk of those perceived by terrorists to be
23 directly or indirectly responsible for the
24 loss of life on Bloody Sunday will rise as
25 a result of the increased attention which
1 those events will receive".
2 Now those two statements, in our submission, are
3 powerful evidence of a difference, a major difference.
4 MR HOYT: Of course the application was in respect of those
5 who fired.
6 LORD GIFFORD: Sir, I read the Ministry of Defence as, with
7 all the resources that it has in its command seeking it
8 assist the Tribunal in relation to the question of
9 anonymity generally, because they say so in paragraph
10 2. It is their words, not mine, that the position, the
11 arguments for the firers are stronger than of the
12 non-firers, and they give their reasons very helpfully,
13 and their reasons make sense because I have not accepted
14 that the quantum of risk as submitted by the members, I
15 still do not accept it on behalf of my clients, but
16 given that the Ministry have identified a certain level
17 of risk which the court felt was so serious as to
18 warrant the principles of Justice being overriden, one
19 looks at the material and one sees that that same source
20 is saying it is the firers who risk revenge. Not the
21 ordinary soldier witness who risks some kind of
22 mindless, motiveless attack. And that is sensible, that
23 is sensible, because if someone is at risk merely
24 because they were members of the security services on
25 Bloody Sunday, then in our submission the level of risk
1 being pitched at an absurdly low level and at a level
2 far lower, and my learned friend Mr Morgan and Mr Weir
3 may no doubt assist, and I know Mr Harvey assisted
4 before, that in the Courts of Northern Ireland it is
5 only in exceptional circumstances that members of the
6 Security Service in dangerous and controversial trials
7 are allowed to apply and allowed to be anonymous,
8 usually those involved in special forces and special
9 operations. The ordinary police officer who arrests and
10 interrogates and maybe takes a disputed confession from
11 a defendant does not get anonymity, even though his role
12 may be the object of identification, so that the
13 suggestion that everyone now should be able to follow
14 the same flag and benefit from anonymity is a suggestion
15 which is not warranted by the very evidence which caused
16 the Court of Appeal to find against the Tribunal in the
17 case, and I would submit that that is the reason, there
18 can be no other logical reason why the Master of the
19 Rolls declined to save us all time by making a statement
20 which would give -- which would require a blanket
21 ruling. He declined to do so because the material did
22 not justify it. Some of the material is the material
23 which I have sought to put before the Tribunal.
24 So, we have tried to therefore draw attention to
25 the fear of individual reprisal on the one hand and the
1 fear -- the generalised fear of anti Security Service
2 violence on the other. In our submission the general
3 fear is not enough. I was about to enumerate before I
4 sit down the reasons why we say that anonymity, a
5 blanket anonymity to all these soldiers would frustrate
6 or impede the objectives of the Inquiry. I gave as my
7 first reason the effect on public confidence and public
8 participation, which would be caused by so many
9 witnesses being code satisfied.
10 Secondly, in our submission there will be
11 confusion which no doubt counsel, the Tribunal and
12 witnesses will try to get around but there will be
13 confusion if we do not know the names but the Tribunal
14 does and the witness does, because if I am asking
15 soldier 101 about the activities of his brother, soldier
16 110, he will have to be told who soldier 110 is and he
17 will have then to try to relate his evidence, and any
18 questions about soldier 110 to the person he knows and
19 can name. But it will be, what we say in our
20 submissions is it will involve an exercise in brain
21 twisting which will not be conducive to fairness.
22 Thirdly, we do say that the more witnesses are
23 anonymous the greater the danger that the search for
24 truth itself will be hampered, and in saying this I go
25 back to the point the Tribunal has not accepted to date
1 but which -- has not accepted as having great weight,
2 which in our submission must have some weight. If a lot
3 of people give evidence under ciphers and their evidence
4 is reported, probably be reported much less incidentally
5 if they are ciphers than if they are people but if they
6 give evidence under ciphers known will know who is
7 giving evidence except the people who see their face
8 sitting in the Inquiry. If, however, people give
9 evidence by name, anybody who reads the reports will
10 know that a soldier of that name has said this and that,
11 and if they have any information to give, if that
12 soldier is a friend of theirs to whom, or someone who
13 knows that they have said something different, there are
14 some soldiers who have given statements to the media,
15 and we are going to have a discussion as to whether they
16 will ever be known, members of the public reading the
17 reports of this Inquiry will be assisted and the
18 Tribunal may be assisted if members of the public know
19 who is talking and can make themselves known if they
20 have some relevant evidence to give. That is the normal
21 basis, one of the normal basis on which public justice
22 is defended, and it may not have too much weight if
23 there is a small number of anonymous witnesses, it has
24 greater weight the larger the number, and when we get up
25 to 4,500, in my submission we are getting to a stage
1 where it is not just the appearance of justice and
2 confidence in the Inquiry's structure that is at stake,
3 but the effectiveness of the Inquiry itself.
4 Members of the Tribunal, those are my submissions.
5 THE CHAIRMAN: Thank you very much. Now who is next?
6 Mr Mansfield is it you?
7 MR MANSFIELD: I think it is, sir, yes.
8 Sir, as you are aware I represent in fact the
9 families of three persons concerned here, McGuigan, Nash
10 and Gillespie. Our submissions are in fact set out at 5
11 and 5A as being an addition. I do not seek to, as it
12 were, read out those submissions or any part of them, as
13 you will have read them and I do not, as far as is
14 possible --
15 THE CHAIRMAN: I do not actually have a 5A at the moment.
16 It may well be I've seen it but not under that heading.
17 MR MANSFIELD: There was a revised index to submissions we
18 all got within the last day or so, one of which includes
19 5A and there should be a 5B as well.
20 THE CHAIRMAN: Yes, I have got the index but I do not think
21 I have got the documents to which it relates.
22 MR MANSFIELD: We all seem to have it in a separate plastic
23 folder.
24 THE CHAIRMAN: Well, at the moment, Mr Mansfield, I do not,
25 although Mr Hoyt appears to have it. Can someone supply
1 me with a copy, please?
2 MR MANSFIELD: I have just asked for spares and it may well
3 be there are.
4 THE CHAIRMAN: Mr Sommers, I am afraid is in the same
5 position as I am.
6 MR MANSFIELD: May I just check?
7 MR MORGAN: May I assume that applies to 5B, which is also
8 our skeleton submission?
9 THE CHAIRMAN: What about 95 then, somebody has just asked?
10 5B.
11 MR MANSFIELD: Yes, 5B is at 94, 6 to 94, 9.
12 THE CHAIRMAN: Yes, I have got that.
13 MR MANSFIELD: 5a is 94.1 to 94.5, which is --
14 THE CHAIRMAN: Yes, I think we are there.
15 MR MANSFIELD: I may, in view of the fact that perhaps the
16 two of you may not have read it, just allude to it in a
17 little more detail but not much.
18 THE CHAIRMAN: Speaking for myself that would be very
19 helpful.
20 MR MANSFIELD: May I just attempt to answer some of the
21 queries that have arisen rather than, as it were,
22 sticking to the skeleton. May I go back to the Court of
23 Appeal judgment in that last delphic paragraph as it has
24 been put, or the last few sentences, because to preface
25 the discussion this afternoon it is of interest to note
1 that the application that is being made on behalf of, as
2 it was put in an initial letter to the Tribunal, "The
3 rest of the soldiers effectively", is non specific and
4 it is particularly important when a blanket request is
5 being made that it is not being said on behalf of those
6 soldiers, for example, that any of them had the Widgery
7 assurance communicated to them. I appreciate Mr Glasgow
8 is saying: Well, that's but a factor and it is not to
9 bind this Tribunal, and furthermore it is recognised
10 that it is the fruits of a poison tree, if I can put it
11 that way.
12 Nevertheless there is no indication whether any of
13 the soldiers he is representing in fact had that
14 assurance communicated to them, and whether it is even a
15 factor in their cases whether they were even aware of it
16 in other circumstances. Furthermore, Mr Glasgow is not
17 saying, as I appreciate the argument so far put forward,
18 that one or more of the people he represents, whoever
19 they are, are firers. In other words he is not coming
20 here today specifying X, Y and Z. And therefore, so far
21 as the reasonable expectation of fear in their minds,
22 not putting before you, sir, today any evidence to
23 suggest any one of them has in fact that expectation,
24 namely the one of fear based on the role they may have
25 played. So it is important, in our submission and
1 observations, to recognise that he in fact, what he is
2 doing is saying: Let us look at the logic of the
3 decision so far, which is what he does do, and he goes
4 back to the beginning, namely of the Court of Appeal
5 judgment, and we would submit that if read carefully the
6 Court of Appeal judgment is in fact saying on the one
7 hand, where the public investigative function is not
8 reduced, because you will know what the identity of the
9 soldiers are that are firers, but also where there is a
10 recognisable and reasonable fear, both in the minds of
11 the soldiers, and objectively then unless there is a
12 compelling reason to name them they should not be
13 named. Now that is the principle plainly they are
14 operating on and if I may just go to the sentence on the
15 last page:
16 " We were asked to indicate our views as to
17 the position of other soldiers".
18 So taking it slowly that must be to obviously the
19 non-firers, as has already been pointed out as as
20 defined up to that point. In other words, those people
21 up to that point who had not admitted being firers, and
22 the only point of our submissions was to in fact ensure
23 that that decision as to who is a firer and who is not a
24 firer is not preempted by those who claim to have fired
25 as opposed to those who claim not to have fired, plainly
1 that is something that you will have to look at as the
2 evidence evolves, but for the purposes of the judgment
3 it was based on those who had admitted firing:
4 " We would like to do so because we are
5 conscious that more attention has already
6 been given to this issue than is
7 desirable".
8 And may we pause there. We would accept that more
9 attention has already been given than is desirable, and
10 the court is saying:
11 " Further disputes should, if possible be
12 avoided".
13 So the court obviously did not wish to revisit this on
14 some future occasion should the decision be unfavorable
15 to the soldiers:
16 "However (they go on in the next sentence)
17 reluctantly and I submit he reluctantly
18 qualifies the words following, we come to
19 the conclusion, (note they would have liked
20 to have come to the conclusion) that would
21 have avoided any further disputes, but they
22 feel they cannot say more on the material
23 before them and there is no other material
24 being provided since other than today's, as
25 it were, assessment of moderate, that it
1 would be unlawful for the Tribunal to
2 insist on other soldiers being named".
3 So my submission is this: If the court felt that the
4 logic, as Mr Glasgow has used it, that the logic of the
5 situation was that the argument that applies to firers
6 would also apply to non-firers, in our submission they
7 would have said that right there and then because they
8 could have precluded any further argument by saying
9 quite clearly, should the non-firers who up to that
10 point had made no indication they were going to
11 challenge, had challenged at that point, they would have
12 dealt with it by saying: Non-firers will have to as a
13 matter of logic be treated in the same way because to
14 use the example that has been used since they are less
15 central, why should they run the risk of being named?
16 It is unfair. I think those are your words, those
17 circumstances. In our submission the Court of Appeal
18 had a wonderful opportunity to deal with it if it was
19 purely a question of logic, and we would submit they did
20 not do it on that basis because it was not purely a
21 question of logic. It was in fact looking at it from
22 the point of view of risk assessment, which is obviously
23 what was at the heart of the judgment in the first place
24 and not in no inroads on the public investigative
25 function, risk assessment and on risk assessment they
1 did not have any material that suggested if you named
2 those that were not in the high risk category that this
3 would be unlawful.
4 We would submit it is as simple as that. It is
5 not very clearly worded, that we would accept--
6 THE CHAIRMAN: I follow this, Mr Mansfield, but if we go
7 back, for example, to page 19 of that judgment,
8 paragraph 68(4).
9 MR MANSFIELD: Is it the one headed, "The Tribunal are
10 obviously".
11 THE CHAIRMAN: That's right, go down to the third paragraph
12 where it starts, "If this be right", and then go on a
13 few lines and then there is a sentence, "From their
14 point of view it is what they reasonable fear which is
15 important, not the degree of risk which the Tribunal
16 identifies", do you have that sentence?
17 MR MANSFIELD: Yes, I do.
18 THE CHAIRMAN: That seemed to be an indication that they
19 were not really looking too seriously at these
20 gradations of risk or did not think too much of them. I
21 agree it is all very difficult but how would you deal
22 with that sort of statement then?
23 MR MANSFIELD: Well, may I go back to my initial remarks?
24 Plainly one does have to have regard to the degree of
25 risk which they reasonably fear, in other words the
1 subjective element is a factor which is important as
2 they say, not the degree of risk that the Tribunal
3 identifies. However, Mr Glasgow is not coming here
4 today indicating that there is any degree of risk
5 essentially that qualifies in that sense. He is not
6 representing people who are saying, I suppose it amounts
7 to special reasons -- they are not saying that there is
8 a risk other than being a member of the armed forces, in
9 other words the anti Army approach to it all. They are
10 not suggesting any individual soldiers are saying
11 anything more than that, or even that. It is an
12 assumption by Mr Glasgow on their behalf that that is,
13 presumably, the kind of argument that they would have,
14 so I would deal with it as of today and one of the
15 points we want to make, sir, today is that it is far too
16 early to be making any kind of further anonymity ruling
17 because at this stage it would appear, given the numbers
18 of statements that have been read out today, or the
19 numbers that have been quoted to, there are vasts
20 numbers of statements involved in this in terms of the
21 soldiers, 1,873, or was it 78 soldiers have been traced
22 and the process of taking statements from them is being
23 done at this moment. If there comes a stage later at
24 which those people who have been traced, who made
25 statements known to the Inquiry then are able to say:
1 We can quantify our personal fears in this case, in
2 other words we feel we are able, we are allied to a
3 soldier who fired because we were standing ten yards
4 away, or we passed a weapon to him or whatever the
5 situation maybe, then they may be in the category of
6 saying: Well, our personal fears are much greater, but
7 nobody is saying that. Nobody knows what those soldiers
8 are saying, which is why to ask for a blanket, as it
9 were, ban on their names at this stage is in fact to
10 preempt the whole process. It is far too early to be
11 saying that the difference with the other category was
12 that they were an identifiable relatively small group of
13 people who had already been given letters, or in some
14 cases obviously numbers, but letters primarily of the 16
15 lettered soldiers, so it is a very different situation
16 why even on an objective basis it was possible to
17 quantify objectively over and above their personal fears
18 what the risks might be, and even if the Court of Appeal
19 felt that the Tribunals's own view of risk was less
20 important than the soldiers, we are not in that
21 situation at this stage we are dealing with people about
22 whom we know next to nothing at this moment, and some of
23 whom have not even been traced to know what they may
24 say.
25 So this application, if it has any bearing at all,
1 should only be made in future when it is clear that the
2 person concerned is either a firer, because they have
3 now admitted it and we know in one case, I am not going
4 to mention his name publicly, but it is known that
5 somebody has admitted since that he did fire when that
6 permission was not in fact put in the first place and he
7 was not given a letter and perhaps he should have been,
8 so clearly there is going to be shifting sand in this
9 area, and at the time at which that occurs for those
10 individuals concerned the application should be made.
11 Really to do it at this stage is far too premature and
12 it should be done on a clear and quantified and specific
13 basis, which it is not at the moment.
14 So that is how I would deal and apply that
15 particular observation on page 19 and, as it were,
16 reintroduce it into what we submit is the true thinking
17 of the Court of Appeal in that last paragraph, in other
18 words put an end to all this. There is no logic to be
19 extended to people who are non-firers, and at the moment
20 on the material available they can be named. We would
21 submit that is the simplicity of the situation. Were it
22 to be otherwise, it would, and it has been put in a
23 variety of ways, and can I deal with the second concern
24 that seems to have arisen this afternoon, that because
25 the non-firers are less central, then even smaller
1 inroads are made into the public investigative duty that
2 both Lord Justice Salmon talked about in setting up
3 Tribunals, and undoubtedly the Prime Minister talked
4 about when he announced this particular Tribunal,
5 particularly with regard to the families to whom he paid
6 considerable respect and regard in that opening
7 statement.
8 Now, in that context we would submit that the
9 public investigative function were the court to have
10 gone on to consider it, in fact there are greater
11 inroads into it the further away you get from the
12 central characters, because, and we go back to the
13 figures concerned, we then are dealing with an amorphus
14 number of people, it may be by March of next year the
15 figures will be even clearer, but as has already been
16 pointed out the practicalities for the public, for the
17 families in whose name in a sense this was set up in the
18 first place, and those who represent the families to
19 trace and to, as it were, do the exercise that the
20 Tribunal has done, is going to be extremely difficult,
21 particularly when one is cross-examining, as has already
22 been pointed out numbers of people who are referring to
23 other numbers and who are not identified in any other
24 way.
25 May I just allude to the other issues without
1 elaborating upon them now that we have asked that you
2 consider in the long run. One of them is authentication
3 of military witnesses. It is not put down lightly and
4 it relates to exactly the confusion and the difficulties
5 of the public perception and confidence in a Tribunal in
6 which no soldier is identified.
7 How will you know, as a Tribunal, that the person
8 who comes to give evidence is the person who is named in
9 the statement but not named to the public? We say that
10 with good reason because you have the point made on
11 earlier submissions in which it was pointed out a
12 Detective Inspector had discovered, and I appreciate
13 that if you need the reference it is in a bundle
14 transcript of the preliminary hearing, I can give the
15 reference, it is April 27th of this year at page 109 --
16 the Detective Inspector's report was read out, or parts
17 of it by Mr Rodgers, and Mr Clarke answered by
18 indicating that there was an inconvenience in having to
19 do the paper exercises of tracing who was who, but it
20 was not insurmountable but he did add this on page 113,
21 that: "The precise circumstances in which in some cases
22 (and this is he is dealing with letters) different
23 letters is used is not clear but I think we have clear
24 but I think it would be fair to say we have not found it
25 an insuprable problem". That is where where it starts.
1 However, you may also be aware there was a statement by
2 a soldier called AA in which he has made clear, whether
3 in fact it is borne out in the end we await, but he has
4 made clear that what happened originally was a farce.
5 This is a word that comes from his own statement that:
6 " Soldiers were grining at each other and
7 drawing haphazardly. This is to do with
8 trajectories, in other words anonymity was
9 being used at that stage by soldiers as a
10 front for effectively not telling the
11 truth".
12 Now if that is to be continued, or any risk of it, the
13 families that I represent are particularly concerned
14 that where on a past occasion it appears that soldiers
15 have abused the process of anonymity that authentication
16 of who the witness is, or will be, is of extreme
17 importance and we say also it will be of importance to
18 the families to correlate, for example, with civilian
19 witnesses. Not very much has been said about them this
20 afternoon but it is clear also one is dealing with
21 hundreds of civilian witnesses, 683 it would appear
22 altogether. They also in their statements, although we
23 do not have them yet, must be referring from time to
24 time to soldiers who they may not know by name but they
25 may know by location, and in order to identify the
1 location and the particular soldier's concern, one is
2 driven back to trajectory, then one is driven back to
3 what was going on originally. In other words, creating
4 what was seen as some sort of spider's web of
5 trajectories in which it will be difficult to unravel
6 who is supposed to be where and it is of particular
7 importance to know whether a soldier is able to say what
8 he saw if he is standing in a particular area and
9 whether he knows who the others were. If it is all done
10 by number the correlation of all of this will be
11 extremely difficult.
12 We would submit in fact, therefore, the public
13 administration of justice and the duty you have is going
14 to be made more difficult once the blanket is spread
15 much wider and it is not a question of saying, well, it
16 is for example going to be less of an inroad because
17 they are not central.
18 In a sense, many soldiers are going to be in quite
19 a critical position in terms of what they saw. They may
20 not be responsible for what happened but they may have a
21 great deal to contribute in terms of what they are able
22 to say, provided they tell the truth.
23 So, we would say in fact therefore, that the two
24 fundamental points at the heart of this, namely the
25 investigative function and public confidence are matters
1 which rise to the surface the broarder the blanket is
2 drawn. For that reason it cannot be drawn at this stage
3 and one has to await the proper identification, in the
4 sense of categories and numbers by those who represent
5 these soldiers, with proper reasons being put forward in
6 each case because our submission is there have to be
7 overwhelming reasons why someone should not be named.
8 That is the normal procedure in the criminal courts of
9 the United Kingdom is that people are named. Even
10 Security Service Officers on occasion are named.
11 THE CHAIRMAN: Not necessarily disagreeing with that, as a
12 general proposition, but it does not seem to be the way
13 the Court of Appeal has put it for us?
14 MR MANSFIELD: Well, I accept they have not put it that way
15 in relation to the Colonel, that is -- by the way I mean
16 Colonel with a K rather than anything else -- the
17 fundamental lettered soldiers but they have not
18 suggested that. Logic extends that is why I have not
19 suggested the logic extends to the rest and therefore if
20 for the rest, if for the run-of-the-mill people who are
21 in uniform, the position why the normal case whether it
22 be Tribunal and whether it be a Tribunal in here or
23 abroad in South Africa or Chile or anything else or for
24 that matter obviously criminal courts where soldiers
25 give evidence specially here, where Security Services
1 give evidence both here and in England where officers of
2 the Anti Terrorist Squad regularly give evidence, in
3 other words when you are dealing with a broad spectrum
4 as we are dealing with today, they are named, invariably
5 named and there are no examples that Mr Glasgow has come
6 with today to suggest that because you are a member of
7 the armed services or a member of the police force and
8 you have given evidence you have been shot, maimed,
9 kidnapped or whatever the situation maybe, just because
10 you are a part of an investigative force effectively or
11 because that is what the Army in the end became, they
12 were sent to arrest so they were part of an
13 investigative force, using another hat.
14 In our submission this is not the time for this
15 submission. It is too early.
16 May I just put as a postscript -- and I hope I
17 will be forgiven for just making it now -- there is a
18 further concern on behalf of the families -- which is
19 one of the issues that is not on the additional list but
20 Mr Clarke did read it out this morning it was on our
21 letter -- is contempt of this Tribunal.
22 THE CHAIRMAN: I think on the very latest version which you
23 may not have got yet you will find that it is.
24 MR MANSFIELD: Well, I am much obliged. May I mention
25 that.
1 What the families are deeply concerned about here
2 is that should your decision today, as it were, not be
3 favourable to the soldiers, or whenever sir you make the
4 decision, not be favourable in the sense it does not
5 grant anonymity, we wish to say quite clearly that those
6 newspapers -- and there are two in particular, the Daily
7 Mail and the Daily Telegraph -- who have orchestrated a
8 campaign throughout the earlier period of time when
9 submissions on this were being made, orchestrated a
10 campaign which was clearly aimed at subverting this
11 Tribunal, clearly aimed as suggesting essentially
12 support for any officers who declined to come to the
13 Tribunal or if they came, declined to give evidence or
14 declined to give statements that they should be
15 supported to the extent of a voucher system which was
16 inaugurated vilifying this Tribunal and vilifying in the
17 end the families as in some way responsible for what
18 went on and responsible for what might happen to
19 soldiers, that that was a contempt at the time and we
20 are anxious now that if newspapers are intending to wage
21 a similar campaign in the future that, sir, having the
22 powers of the High Court, you yourself may feel it is
23 time, as it were, to ensure that there is no repetition
24 of that approach because this is not a Tribunal that is
25 going to be hopefully demeaned in any way at all let
1 alone pressurised by those who have other interests at
2 heart.
3 That is why we have put it there because the last
4 occasion was blatant and flagrant and nothing happened
5 and the newspapers, we believe, feel they have a licence
6 to print whatever they like, and we would suggest that
7 that also should be ended.
8 THE CHAIRMAN: Thank you. Yes.
9 MR MORGAN: Sir, I will follow our local practice, if you do
10 not mind, and speak from the seat.
11 THE CHAIRMAN: Of course. We can find your submissions at
12 94.7. Yes, we have them.
13 MR MORGAN: Sir, I support the submissions made by my
14 learned friends Mr Weir, Lord Gifford and Mr Mansfield
15 and there is merely one issue, sir, on which I would
16 propose to address you at just a little length but
17 hopefully not too much. That is on the question of the
18 proper approach to the issue of public confidence.
19 It will lead to a submission that when one
20 analyses the reasoning of the Divisional Court and the
21 Court of Appeal that although they dealt with an issue
22 of public confidence that they did not in fact deal with
23 at least a part of the issue of public confidence so far
24 as it effects this Tribunal and it may well be that in
25 one view that is an issue of fact upon which the
1 Tribunal may have to make a judgment.
2 The question of public confidence, in my
3 respectful submission, can be identified and has been
4 identified by the Tribunal in its ruling of May 1999 at
5 paragraph 11 and "it is the demonstration to all
6 concerned that the Tribunal will conduct an open,
7 thorough and complete search for the truth". That then
8 leads to an analysis of who are the, "all concerned", to
9 whom one has to make the demonstration. In my
10 respectful submission guidance on that can be
11 ascertained in particular from Lord Salmon's Royal
12 Commission report on Tribunals of Inquiry and helpfully
13 at paragraph 28 of that report is set out in the ruling
14 that the Tribunal made on 20th and 21st July 1998 at
15 page 2 of a bundle which I believe has been provided.
16 What Lord Salmon, Lord Justice Salmon said:
17 "It is essential on very rare occasions where crisis of
18 public confidence occur the evil if it exists shall be
19 exposed so that it may be writed out or if it does not
20 exist the public shall be satisfied that in reality
21 there is no substance in the prevalent rumours and
22 suspicions by which they have been disturbed", therefore
23 in my respectful submission all concerned includes at
24 least those who have been disturbed by prevalent rumours
25 and suspicions.
1 That then leads on to an analysis of exactly what
2 are the prevalent rumours and suspicions which have
3 disturbed the section of the public who have become
4 concerned about the search for truth in relation to the
5 events on 30th January 1972.
6 In my respectful submission, the Tribunal itself
7 again has at least tangentially identified the issue of
8 the crisis of confidence and at paragraph 19 of its
9 ruling in May 1999 where it addresses the question of
10 the previous Tribunal of Inquiry and towards the end of
11 paragraph 19 at the top of page 8 of the ruling there is
12 the passage that begins:
13 " It is clear that the present Inquiry has
14 been instituted because the previous
15 Inquiry did not succeed, for whatever
16 reason, in achieving the general objective
17 of inquiry under the 1920 Act. This
18 objective, as Lord Justice Salmon said in
19 his report to restore public confidence in
20 that where a crisis in confidence has
21 occurred. Indeed, there is a body of
22 responsible public opinion to the effect
23 that the Widgery Inquiry so far as
24 restoring public confidence compounded the
25 crisis".
1 It is my respectful submission that in that passage the
2 Tribunal recognises that there is a responsible body of
3 public opinion which is of the view that the Widgery
4 Inquiry was not one which was designed to establish the
5 truth but in fact declined the search for truth and
6 among those who are of that view are the two clients
7 whom I represent.
8 If, then, against that background one looks to see
9 what is the impact upon the confidence that that
10 responsible body of public opinion may have insofar as
11 the proposed anonymity is concerned, there are a number
12 of factors, specific factors, which in my respectful
13 submission will impinge upon the confidence of that
14 responsible body of opinion.
15 The first is this. The application that was made
16 to the Tribunal in relation to anonymity was made only
17 in respect of those who were alleged to have or had
18 admitted discharging weapons. That, presumably, was
19 made with the basis of good legal advice and on the
20 basis of reflection. It now appears that, as it were,
21 having secured for what at the time was a relatively
22 small body of the potential soldiers who are to be
23 called at this Inquiry the anonymity required, that it
24 is now proposed that it should be extended on a wide and
25 none specific basis and one cannot help but feel that
1 from the public's point of view that this has been a
2 classic case of softly softly catch me mucky, in other
3 words that if you try to establish the principle for
4 your best group that you may eventually manage to bring
5 all of the others in their coat tales, and in my
6 respectful submission one cannot ignore the proposition
7 that a public which is, for understandable reasons,
8 already suspicious about the commitment to the search
9 for truth, that it should be effected by that
10 consequence.
11 The second aspect which in my respectful
12 submission effects that responsible body of public
13 opinion is that, as has been submitted to the Inquiry,
14 there are regular appearances by members of the police
15 force who live and reside within this community and who
16 are regularly involved and persistently involved in
17 dealing with issues concerning terrorism. For instance,
18 it is common case, not obviously in criminal proceedings
19 but in civil proceedings, for issues to arise as to
20 whether or not police officers in particular have
21 discharged weapons -- usually plastic baton rounds -- at
22 members of the public and claims are regularly made
23 within the Courts in relation to those issues and those
24 police officers who are involved in dealings with
25 considerable crowd disturbance, often allegedly promoted
1 by terrorists seeking to achieve certain ends, give
2 their evidence identifying themselves in full with no
3 screening and no question of anonymity.
4 It seems, in my respectful submission, rightly odd
5 that from the point of view of responsible public
6 opinion that those people who are directly involved, as
7 it were, in quelling that kind of disturbance by
8 discharge of some form of weapon, are apparently freely
9 and easily to be identified both by name and appearance
10 but that there is some difficulty about soldiers, for
11 instance, who are not and were not involved in any kind
12 of discharge of weapon upon members of the public, were
13 it driving vehicles or preparing barricades or something
14 of that kind are to have the benefit of some kind of
15 anonymity.
16 In my respectful submission that is a matter which
17 would tend to undermine the confidence of the people for
18 whom I represent and others like them.
19 The third issue is as to whether or not if
20 anonymity on a general basis is given one is to foresee
21 that there will be a reasonable opportunity for
22 cross-examination of soldiers involved in this
23 operation, in particular by representatives of the
24 families. In my respectful submission if it is the case
25 that all of the soldiers are to be identified by some
1 form of cipher, that one can readily appreciate that
2 there will be considerable difficulties and I do not
3 wish to expand upon what Lord Gifford has said in
4 relation to that and I am sure you will take his
5 submissions into account.
6 Fourthly, in my respectful submission, separately
7 from the third point, one has to take into account as
8 again was made to the Tribunal the perception of members
9 of the public as to such a cross-examination in terms of
10 whether it is valid to perceive that the search for the
11 truth is in fact being conducted by the Inquiry.
12 The fifth matter which is tangential to this issue
13 but which is indicative to the concerns which the public
14 may have in this area is that we heard this morning that
15 in relation to those civilian witnesses who have made
16 statements, that their statements, even if unsigned will
17 be made available. As I understand it, if there is any
18 difference between their signed statements and any other
19 statement that they gave on a material basis that that
20 may also be made available. So that is a standard which
21 is being set for civilian witnesses.
22 Does that compare with the position in relation to
23 military witnesses where unlike the civilian witnesses
24 their statements may well be prepared initially with the
25 benefit of their own legal advice before coming anywhere
1 near the Tribunal? The procedures which have been set
2 up by the Tribunal ensure that although solicitors may
3 be responsible for identifying witnesses that that
4 process of taking the statements from witnesses is for
5 the Tribunal and not for the solicitors representing
6 civilian witnesses. So, I respectfully say that one can
7 see within those factors that there are real issues
8 effecting the perception of a responsible body of
9 persons as to whether or not they should conclude that
10 the Tribunal is engaged in the search for the truth.
11 Now if one then looks at the approach which the
12 Divisional Court and the Court of Appeal have taken in
13 relation to this issue, it can, in my respectful
14 submission, in the first instance, so far as the
15 Divisional Court is concerned, be found at pages 36 to
16 37 of the judgment which is contained at tab 3 of the
17 index to the anonymity rulings.
18 THE CHAIRMAN: Before we go to that. We have got to quarter
19 past four. I do not know how much longer you are going
20 to be, and I am not in any sense trying to stop you but
21 I am conscious what you are saying is being recorded and
22 we must not put too much pressure on the lady who is
23 sitting there recording it.
24 MR MORGAN: I suspect, sir, I will be finished within five
25 to ten minutes, at most.
1 THE CHAIRMAN: If it looks longer then rather than hastening
2 the remarks we can go on tomorrow morning.
3 MR MORGAN: I am reasonably confident I will manage to
4 complete what I wish to say in five to ten minutes.
5 THE CHAIRMAN: I think, on the whole, we did say on the
6 timetable 4.15. We will leave it until tomorrow to give
7 everybody a rest. I was proposing, unless there are
8 strong objections to the contrary, to start at
9 10 o'clock tomorrow morning. We are doing quite well at
10 the moment and it may well be that we can advance some
11 of the matters that were fixed for Wednesday into
12 Tuesday, or if we cannot do that pick up some of the
13 miscellaneous items that we have set for Friday.
14 MR CLARKE: I think it would have to be the latter because I
15 will be corrected if I am wrong but I think the media
16 have all been told to line themselves up for Wednesday
17 and would justifiable not be here on Tuesday and we
18 cannot ditto the drivers and Vehicles Licensing Agency
19 is not coming until Thursday. It would, I think, be a
20 question of slotting in some of the miscellaneous
21 material.
22 THE CHAIRMAN: Yes.
23 MR CLARKE: But the effect of where we have got to is that
24 anonymity -- I would like to say a few words about
25 anonymity, but that is not going to take a great deal of
1 further time and I do not believe that RUC anonymity is
2 going to take very long, so we have in fact -- we have
3 advanced the RUC until 10.30 I have been told.
4 THE CHAIRMAN: Oh, have we? That comes as news to me as
5 well.
6 MR CLARKE: It comes as news to me, that is why I am telling
7 it but it looks rather we shall run out what is
8 currently in the time scale on Tuesday in mid-morning
9 tomorrow.
10 THE CHAIRMAN: If that does happen there is not a lot to do
11 about it but it gives an opportunity for those to make
12 submissions on miscellaneous items to put those
13 submissions in writing so that others have a chance to
14 consider them before we get to them on Friday.
15 MR CLARKE: Yes.
16 THE CHAIRMAN: So I think in those circumstances, Mr Clarke,
17 we will start at 10.15 tomorrow morning.
18 MR CLARKE: I am perfectly happy to start at ten. I do not
19 know if that causes anybody difficulties?
20 LORD GIFFORD: Speaking for myself, I hope we do not lose an
21 afternoon tomorrow. I am sure we can find some business
22 from Friday to put in tomorrow which might mean we can
23 save time.
24 THE CHAIRMAN: I would hope so but I think we will have to
25 play it as it develops tomorrow, Lord Gifford, and I am
1 sure some of the matters we can deal with reasonably
2 quickly tomorrow.
3 (The Tribunal adjourned until Tuesday,
4 28th September 1999)