17 December 1998
We are now able to give our rulings and observations on applications relating to the venue for oral hearings and on anonymity.
In our Opening Statement we stated our intention to begin the oral hearings of the Inquiry in the Guildhall. However, we also stated that we expected that some hearings would take place in London, since that appeared to be the most convenient course to take for some of those concerned.
The Treasury Solicitor, acting for some of the soldiers, has submitted that the oral evidence of his clients should be taken at hearings in London. This is opposed by those acting for the families of the deceased and for most of the wounded. We have also received submissions from the British Irish Rights Watch and the Committee on the Administration of Justice. They also oppose the application. The Treasury Solicitor has been given and has taken the opportunity to respond to this opposition and we have, of course, considered this response. We have also taken into account a submission from the Ministry of Defence related to the cost of taking the soldiers' evidence in the city where Bloody Sunday occurred. At a very late stage we received Supplemental Submissions from Messrs Madden & Finucane, but we did not find these of any assistance in reaching our conclusions on this matter.
>From the point of view of personal convenience, it would doubtless be easier for many of the soldiers to give their oral evidence in London. In 1972 all or virtually all the soldiers involved were still in Northern Ireland, so that this question hardly arose. After a distance of 26 years only a handful of these individuals are still serving in the Army, and we recognise that a call to give evidence in Northern Ireland will require much more personal disruption than was the case in 1972.
In addition, it will be necessary to make appropriate security and accommodation arrangements. These arrangements may in themselves be more expensive than those for a hearing in London, but we are not persuaded that the overall costs of the Inquiry would be materially affected by holding hearings of soldiers' evidence in Northern Ireland.
In our view there is another major consideration to bear in mind.
This is the fact that we are investigating events which took place in a city a long way from London, events which led to people of that city being killed or wounded through the actions of soldiers who were there in an official capacity. Whatever the rights and wrongs of what occurred on Bloody Sunday, in our view the natural place to hold at least the bulk of the oral hearings is, in these circumstances, where the events in question occurred.
We have concluded on the information presently available to us that this factor, so far as the soldiers generally are concerned, outweighs personal convenience and the expenditure required to make appropriate security and accommodation arrangements.
In their submissions dated 9th December 1998, it seems to be suggested that the soldiers are already at a disadvantage because it will, in effect, be impossible for them to attend while those who are alleging that they committed murder are giving their oral evidence; so that to refuse to allow the soldiers to give evidence in London further tilts the balance of convenience unfairly against them. In addition, the point is made that the soldiers will not be able to follow the proceedings by video link and are unlikely to have access to daily transcripts, but at best will have to follow what is going on through the Internet.
We do not accept this submission. Those representing soldiers have accepted without challenge (and in our view correctly) that the civilians' evidence should be heard in the city where the events in question occurred. Hearing the evidence of the soldiers in London would not alter this state of affairs or its consequences. Furthermore, as we have repeatedly sought to explain, this is an inquisitorial inquiry and before oral hearings start all concerned will be given a proper opportunity to consider and prepare to deal with whatever allegations the Tribunal considers require an answer. This is not an adversarial proceeding and thus, for example, we shall not allow any interested party to keep oral (or indeed other evidence) in reserve in order to spring it by surprise in an adversarial fashion. Furthermore, we see no reason why those representing soldiers should not use to the full modern technology (not just the Internet) to keep those of their clients who wish it fully informed at all times of what is going on and to give advice to and receive instructions from those clients.
Accordingly, we are not persuaded that we should now rule that soldiers should give their oral evidence in London. On the contrary it seems to us that, as matters at present stand, and subject to changing circumstances and particular matters affecting individual soldiers, those who are called to give oral evidence should expect to give their evidence in the Guildhall. We shall not make a ruling to that effect now, since hearings involving soldiers are a long time ahead and meanwhile we want to keep the matter under review. Changing circumstances and particular matters affecting individual soldiers may cause us to reconsider the matter.
All concerned have expressed a desire to see justice done. That is our desire as well. Justice can only be done and be seen to be done if the Inquiry is conducted in a calm and quiet manner, so that (among other things) all those who have relevant evidence to give have a proper and fair opportunity to be heard, without distraction or interference and without grounds for any concern save that they should speak the truth. We expect a hearing in the Guildhall to provide that opportunity. If for any reason our expectation turned out to be misplaced we would not hesitate to make other arrangements which (if justice required it) would include continuing our search for the truth elsewhere.
We now turn to the question of anonymity of witnesses. For convenience, we use the term "anonymity" not only in its strict sense, in which it denotes the withholding of a name, but also to cover any restriction on the disclosure of a witness's address or other personal details, as well as concealment of his or her physical appearance.
In our Rulings and Observations published on 24 July 1998, we referred to the difference between inquisitorial and adversarial procedure and explained why it might be appropriate to grant a degree of anonymity to witnesses in certain circumstances. We summarised our approach in the following way:
"we will be willing to grant an appropriate degree of anonymity in cases where in our view it is necessary in order to achieve our fundamental objective of finding the truth about Bloody Sunday. We will also be prepared to grant anonymity in cases where we are satisfied that those who seek it have genuine and reasonable fears as to the potential consequences of disclosure of their personal details, provided that the fundamental objective to which we have referred is not prejudiced. As to the degree of anonymity that is appropriate, our current view is that restricting the disclosure of names and addresses ought to be sufficient in most, if not all, cases. We would regard the use of a screen as a wholly exceptional measure.
"The obligation nevertheless remains firmly on those who seek anonymity of any kind to justify their claim. Applicants for anonymity must supply the Tribunal with a written explanation of the basis of their application, together with any material relied upon in support of it. Of course, unless and until the application is refused, the Tribunal will not reveal any information in its possession, disclosure of which might pre-empt its ruling. Otherwise, however, and subject to any claim for public interest immunity, we propose to circulate any written applications for anonymity to all interested parties and to invite their submissions before making a ruling.
"It is obviously important that these applications should be determined sooner rather than later, especially in view of the problems that delay will cause in respect of the distribution of documents containing the names of potential applicants for anonymity. The fact that so far only a few of the soldiers have been traced presents the practical difficulty that their instructions cannot be obtained until they have been found. Rather than waiting for them to be located, we intend to ask the Ministry of Defence to put forward any application for anonymity on their behalf, together with such submissions and evidence as it considers appropriate in relation to any continuing security risk to which they may be exposed."
Since the publication of that ruling, we have received the following applications and submissions relating to anonymity:
Mr Anthony Lawton of the Treasury Solicitor's department has applied on behalf of four senior officers for a direction that no information tending to disclose their addresses or telephone numbers should be disclosed. The officers concerned are Major General Ford, Brigadier MacLellan, Lt Col Wilford and Lt Col Steele. The names of these officers and the fact that they were involved in the events of Bloody Sunday have been public knowledge since 1972, and accordingly no question of restricting the disclosure of their names arises.
Mr Lawton has also applied on behalf of the other soldiers represented by him for a direction that no information tending to disclose their identities, occupations, addresses or telephone numbers should be disclosed to any person other than members of the Tribunal and its staff. At the time of the application the other soldiers represented by the Treasury Solicitor were the soldiers known during the Widgery Inquiry as O, U, V, 17, 112, 202 and 236. More recently, we have been notified by the Treasury Solicitor that he has instructions to act for two further soldiers. Pending our final decision on anonymity, we have allocated to one of these soldiers the code name INQ2. We deal with the case of the other below.
In his letter of 2 September 1998, Mr Lawton stated that the principal basis for these applications was that his clients "believe that they and their families would be at risk of being killed if their identities and whereabouts were revealed".
The Ministry of Defence has provided a submission on behalf of all soldiers who are potential witnesses but who are not currently represented before the Inquiry. The Ministry of Defence has asked us to withhold the names and addresses of these soldiers from disclosure beyond the members of the Tribunal until such time as the individual soldiers or their representatives can address us on their personal circumstances.
This application is founded on the risk to the physical safety of the soldiers that, in the Ministry of Defence's submission, will be created by disclosure of their names and addresses.
The Home Office has provided us with an assessment by the Security Service of the level of threat to the soldiers. The Ministry of Defence relies on this threat assessment in support of its application.
According to the threat assessment, military witnesses to the Inquiry will, if their names are revealed, face a "moderate" threat from dissident republican terrorists, which would be likely to increase in the event of an increase in the overall threat from such groups to targets in Great Britain. The existing "moderate" threat to those whose names are already public knowledge is not considered likely to increase solely as a result of their attendance before the Inquiry.
Mr Treacy, counsel instructed by Madden & Finucane on behalf of the majority of the next of kin and the injured, delivered submissions in response to the applications made by Mr Lawton and the Ministry of Defence. Mr Treacy's original position was that the applications for anonymity should be rejected in their entirety. In later submissions, however, Mr Treacy has said that his clients do not seek disclosure of the addresses or telephone numbers of military witnesses.
Mr Treacy submits that the withholding of the names of military witnesses would compromise the Tribunal's fundamental objectives and would diminish public confidence in the Inquiry.
We have received submissions from Lord Gifford QC and Mr Macdonald, instructed by McCartney & Casey on behalf of the Wray family. They argue that the Tribunal should not accede to any request for non-disclosure of names, but they accept that the Tribunal should not disclose addresses or telephone numbers, unless this proves to be necessary in order to clarify a witness's identity.
Counsel for the Wray family argue that the granting of anonymity would hinder the Inquiry and undermine public confidence in it, and that the evidence put forward in support of the applications for anonymity does not demonstrate a level of risk sufficient to justify withholding soldiers' names.
Further submissions have been delivered to the Tribunal by British Irish Rights Watch and the Committee on the Administration of Justice. We understand that these are two independent organisations concerned with human rights issues in Northern Ireland. They are not represented before the Inquiry, but we are nonetheless grateful for the interest that they have shown on the issue of anonymity and we have taken their submissions into account.
British Irish Rights Watch submit that there would be no real risk to any of the soldiers if their names became known, and that in general anonymity ought not to be granted. However they recognise the possibility that it might be justifiable to grant anonymity in individual cases for compelling reasons, such as where an applicant could show that he had received specific, recent threats relating to Bloody Sunday from a source capable of carrying them out. They accept that the interests of justice would not be frustrated by withholding the addresses and telephone numbers of witnesses concerned about their personal safety.
The Committee on the Administration of Justice also accepts that it might be necessary to grant anonymity in a small number of cases, but argues that this should be done only in exceptional circumstances where objective justification is demonstrated, and only to the extent absolutely necessary.
Copies of all of the applications and submissions referred to above have been distributed to the legal representatives of the interested parties. As a result, we have received submissions in reply from Mr Glasgow QC, Mr Lloyd Jones and Mr Bools, on behalf of Mr Lawton's clients, and from the Ministry of Defence.
We should record that a small number of soldiers have contacted the Inquiry directly and indicated that they wish to apply for anonymity. We have not yet invited submissions from the interested parties on these applications and, with one exception, we do not propose to deal with them in this ruling. The reason for taking this course is explained below.
In this ruling we are concerned only with the applications on behalf of soldiers or former soldiers to which we have referred above. If in due course any non-military witnesses make applications for anonymity, we will give them separate consideration.
One matter arising at the outset is Mr Glasgow's submission that, in relation to soldiers who gave evidence to the Widgery Tribunal, the issue with which we are concerned is not the granting of anonymity but its withdrawal. He does not contend that we are formally bound by any decision of the Widgery Tribunal. He submits nevertheless that there should be a presumption in favour of anonymity, because a number of the soldiers made statements and gave evidence before Lord Widgery "after receiving assurance that anonymity would be preserved".
We are not persuaded by this submission. We do not know by whom or in exactly what terms this assurance is supposed to have been given. It seems to us that we can assume no more than that the soldiers understood and expected that their names would not be divulged in the course of the proceedings before Lord Widgery. We are not aware of any reason to believe that an assurance was given that their names would never be disclosed by anyone. Accordingly, we treat these as fresh applications for the grant of anonymity and we start with no presumption that the existing de facto anonymity should be preserved.
As we have indicated, the applications for anonymity proceed upon the second of the two bases referred to in our July ruling, namely that the soldiers have genuine and reasonable fears as to the potential consequences of disclosure of their personal details. The particular concern identified is as to their own and their families' personal safety. We must therefore begin by considering whether or not it has been demonstrated that the soldiers' fears in that regard are genuine and reasonable.
The obvious difficulty that we face here is that at present only 13 soldiers are actually represented before the Inquiry. The Ministry of Defence has made general submissions in the interests of the remainder of the soldiers, but clearly has not been in a position to inform the Tribunal about the particular fears, or grounds for fear, of individuals.
Despite the apparently small number of soldiers who have obtained representation, the Tribunal is currently making substantial progress with the tracing exercise and we anticipate that very many more soldiers will acquire representation over the coming weeks. Some of them may prove to have specific personal circumstances bearing upon the question of anonymity in their cases. As we explain below, we intend to arrange matters in such a way that, provided that they act without undue further delay, they will have an opportunity to bring special circumstances of this kind to our attention before any step is taken which would prejudice their anonymity.
Even in the case of Mr Lawton's clients, no grounds relating to the specific circumstances of particular individuals have been advanced. Instead, Mr Lawton submits that "the universal perception of the soldiers that they are at risk is manifestly reasonable" and says that if the Tribunal is not prepared to grant his clients' application he will seek leave to make further submissions in camera. As to this last point, we would draw attention to our Opening Statement, in which we said that we would require very strong grounds indeed before agreeing to exclude the public from any part of the Tribunal's proceedings.
For the present, therefore, we can deal only with the general position as set out on behalf of Mr Lawton's clients, and in the Ministry of Defence's submissions, supported by the Security Service threat assessment. If these demonstrate that the disclosure of names and other details would give the soldiers objective reason to be fearful for their own or their families' safety, we might properly conclude that individual soldiers are in fact likely to have genuine and reasonable fears in that regard.
At this juncture we should make it clear that no one suggests that any of the families or the wounded would take part in, or support or condone, any unlawful reprisals against the soldiers. The only threat under consideration is that said to be presented by republican terrorist groups. As to this, British Irish Rights Watch say in their submissions that "Republicans of all persuasions, including those dissidents who currently remain active, would respect the victims' views". But we do not know how they can be sure that this is so.
The Security Service threat assessment acknowledges that the threat of terrorist attacks by the Provisional IRA (PIRA) is currently low, but argues that there is a continuing risk of attacks by republican dissidents, whose targets would not be significantly different from those formerly favoured by PIRA. It notes that republican terrorists have long regarded the military as a legitimate target, and it says that these groups retain the materiel and personnel to mount attacks in Great Britain. The Continuity IRA, the only republican terrorist group not currently on cease-fire, has not yet mounted attacks on the mainland, but the possibility of it doing so "cannot be discounted". PIRA has been observing a cease-fire since July 1997, but has so far maintained the capability of returning to violence should it decide to do so.
We are prepared to accept the general proposition that some terrorist groups remain capable of carrying out attacks both in Northern Ireland and in Great Britain, and that no one can be sure that future circumstances will not occur in which they choose to do so. However, it is another question whether, even if this were to happen, soldiers or former soldiers who were involved in the events of Bloody Sunday would be likely to be selected as targets.
The author of the assessment refers to the "importance of 'Bloody Sunday' in republican history" as a reason for believing that there would be a real risk to military witnesses if anonymity is not granted. Counsel for the next of kin of James Wray take issue with this description, arguing that it is a misconception to think of Bloody Sunday as being of importance only to republicans. For our part, we do not suggest that the significance of Bloody Sunday was limited in that way. But we have to recognise that the actions of the Army on that day have always been a matter of exceptional controversy in many quarters, including among others the republican movement.
Nevertheless, there is virtually no material before us that demonstrates the extent, even prior to the paramilitary cease-fires, of any specific risk to former soldiers or their families arising from their previous involvement in controversial events in Northern Ireland. Mr Lawton's application mentions that General Ford at one time received a written threat and that a letter bomb was intercepted by his bank. But we do not know when these incidents occurred, nor whether there was any evidence to link them directly to Bloody Sunday. The threat assessment refers to the interception in April 1998 of a vehicle-borne explosive device at Dun Laoghaire, and to the arrest in London on 10 July 1998 of three individuals, alleged to be members of a dissident republican group, who have since been charged with conspiracy to cause explosions. But, as counsel for the Wray family point out, there is nothing to show that the intention in either of these cases was to attack individual soldiers or ex-soldiers. In fact, they submit, there is no indication that individual soldiers have been targeted in recent years or that any soldier has ever been attacked specifically as a result of having given evidence in any proceedings. They say that many soldiers have in the past given evidence in controversial trials in Northern Ireland without anonymity. This has not been contradicted, although we know that there have also been trials in which anonymity has been allowed, subject where necessary to limited disclosure of the names to counsel for the opposing party.
In our view these submissions have real force. We acknowledge, as we have said, that exceptional controversy surrounds Bloody Sunday, so that the history of other incidents would not necessarily be a reliable guide in the circumstances of this case. We recognise also that patterns of terrorist activity change from time to time, and that future developments are never certain. Even so, we think it fair to say that the evidence of a continuing threat to soldiers who may be called as witnesses before this Inquiry is general as opposed to specific. Perhaps of necessity, it amounts to informed speculation as to what could happen, instead of a more concrete prediction based upon specific past experience.
None of this is intended to suggest that the fears expressed by Mr Lawton's clients are not genuine, or that other soldiers not yet represented may not genuinely believe themselves to be at risk. On the contrary, it is easy to understand how the soldiers who have not hitherto been named are likely to feel generally apprehensive about the potential consequences if their anonymity were to be lost. Moreover, in the light of the threat assessment, we are not prepared to castigate that general fear as unreasonable. We accept that the capability retained by republican terrorists and the uncertainty of the future provide a degree of objective justification for the soldiers' fears. We consider, however, that the evidence of risk, viewed objectively, is limited and unspecific.
Having decided, albeit subject to these qualifications, that there is some rational basis for the soldiers to be fearful, we must consider, in accordance with the principles we set out in our ruling in July, what if any kind of anonymity would be appropriate in the circumstances. In addition, before granting anonymity of any kind, we must be satisfied that we can do so without prejudicing our fundamental objective of establishing the truth about what happened on Bloody Sunday. We propose to address this latter question first.
The submissions opposing the granting of anonymity put forward various grounds for the contention that anonymity, at least in the strict sense, would prejudice the fulfilment of the Inquiry's objectives. The main points that have been made are as follows.
It is said that if a witness is permitted to remain anonymous, he will feel insulated from effective criticism and will be more likely to give untruthful evidence. We agree that a witness who has been guilty of discreditable conduct is likely to feel more comfortable giving evidence anonymously than he would if his name were known. We accept that it is no part of our function to shield such witnesses from embarrassment or disgrace. But it does not seem to us obvious that the effect of this sense of reduced vulnerability would be to increase the temptation to commit perjury. There is a real possibility that it would, at least in some cases, have the opposite effect of encouraging greater candour. It would certainly be a serious mistake for any soldier to suppose that non-disclosure of his name would give him any protection in this regard. The Tribunal will have the names and addresses of all witnesses. Our counsel will cross-examine witnesses thoroughly in order to test their evidence. And granting anonymity for the purposes of this Inquiry would have no effect on any future criminal proceedings.
Then it is said that there may be witnesses who have made previous statements to others that are inconsistent with their evidence to this Inquiry. Anonymity might prevent those others from coming forward to tell the Tribunal what they know, because they might not appreciate its significance unless the witness in question is named publicly and they read about his evidence. In our view, the likelihood of this happening is slim and should be given only marginal weight in the present context. We would of course encourage anyone to whom an admission or self-incriminatory statement has been made in the past by someone involved in Bloody Sunday to come forward and contact the Tribunal. However it seems to us improbable that the prospects of their doing so will be materially improved by publishing the names of the soldiers.
Another point that has been made is that a witness's name and address is the starting point for an investigation of his or her credibility. This is true, and as we said in our ruling in July, it is one of the main reasons why in adversarial proceedings the courts require particularly strong grounds before allowing anonymous testimony. Here, however, the force of the argument is diminished, because the Tribunal itself will take steps wherever appropriate to investigate the credibility of witnesses.
A related argument is based on the entitlement of those who are accused of wrongdoing to know the identity of those who make allegations against them. The relatives of the dead and the injured correctly point out that the soldiers have accused those who were killed and wounded on Bloody Sunday of having been carrying firearms or bombs. They submit that they are entitled to know the names of those who make these allegations. Although we give some weight to this factor, again we consider that it is offset to a significant extent by the inquisitorial nature of these proceedings, in which no one is being prosecuted and the Tribunal itself has responsibility for investigating allegations and the credibility of those who make them.
It is clear that the families of the deceased and the injured would like to see prosecutions brought against soldiers who in their view were guilty of serious offences on Bloody Sunday. If that were to happen, the names of the defendants would in the ordinary way become public. The position would not be affected by any grant of anonymity for the purposes of this Inquiry, because the prosecuting authorities would still be able to ascertain the true identity of the soldiers concerned.
It has also been submitted that to use letters or numbers instead of names would give rise to difficulties in analysing and cross-referencing the evidence and that there would be a material risk of mistakes in the redaction of documents. But we think that the need to use letters or numbers would be at most an administrative inconvenience. We are not persuaded that it would in itself interfere with the work of the Tribunal.
None of the factors to which we have so far referred is, in our view, sufficient to demonstrate that the granting of anonymity would prejudice the fundamental objective of the Inquiry. We attach considerably greater weight, however, to another factor, which appears in the submissions only in the form of an argument that to grant anonymity would diminish public confidence in the Inquiry by creating the impression that the true facts are being concealed.
We see the point of substance as being not the maintenance of public confidence as such, but rather the proper fulfilment of our public duty to ascertain what happened on Bloody Sunday. An intrinsic part of that task is the investigation of the actions of individual soldiers on the day, which in our view encompasses not only what they did, but also who they were. We do not think that this makes it axiomatic that the name of every soldier involved should be disclosed, no matter what his individual circumstances might be. Even a code letter or number provides a degree of identification, in the sense that it distinguishes the witness concerned from all others involved. To restrict the disclosure of the actual names of a few soldiers, for sound reasons, would not in our view substantially impair our investigation of the facts. But we are satisfied that, if anonymity in the strict sense were to be allowed on a widespread or blanket basis, that would represent a material derogation from the Tribunal's public investigative function.
The same does not apply to addresses or other personal details such as occupations or telephone numbers. Unlike names, these form no part of the facts under investigation, and we do not think that we would prejudice our objectives by restricting the disclosure of this information in appropriate cases. The concealment of a witness's appearance raises different issues, but we do not consider that further in this ruling because there has been no application for permission to use a screen. It will be recalled that we stated in our ruling in July that we would allow this only in exceptional circumstances.
We turn now to consider whether any, and if so what, degree of anonymity is appropriate, having regard to our views as to the nature and extent of the risk, and our rejection of widespread or blanket anonymity, in the strict sense, as being incompatible with the Tribunal's fundamental objectives. We have previously made clear that, because anonymity represents a departure from the principle of open justice, it will only be appropriate if and to the extent that a clear justification is demonstrated.
As will be apparent from what we have said, there is a measure of consensus that there is no need for the addresses or other personal details of the soldiers, apart from their names, to be disclosed. This is a matter on which we must form our own view, but we are in fact satisfied that it is appropriate to allow military witnesses to withhold these details if they are fearful that by revealing them they will expose themselves or their families to the risk of attack. In particular, we bear in mind that the current addresses, telephone numbers and occupations of witnesses are of no relevance to the events of Bloody Sunday.
The application for names to be withheld creates for us a much more acute dilemma. For the reasons we have given, we have reached the view that it would be wrong in principle to give a general dispensation allowing all military witnesses to give evidence without revealing their names. Moreover we believe that this would, in the majority of cases, be going further than is justifiable or appropriate in circumstances where there is no concrete evidence of a specific threat. It seems to us that in the generality of cases the witnesses concerned will be sufficiently protected by the non-disclosure of their other personal details.
We have anxiously considered whether there are, or may be, any particular cases in which anonymity in the strict sense should be granted. One category, which might arguably qualify for different treatment, consists of all soldiers who fired live rounds on Bloody Sunday. Since those soldiers alone must, between them, be directly responsible for killing and wounding all those who were killed or wounded by Army gunfire on that day, we think that they would have more compelling and substantial grounds than others for believing themselves to be at risk.
At the same time, it has to be recognised that these are the very soldiers whose conduct lies at the centre of this Inquiry. To allow this group to remain entirely anonymous would be a step that we would find difficult to reconcile with our public duty to determine what happened on Bloody Sunday.
The conclusion we have reached is that, subject to what we say below about special factors relating to individuals, it would be justifiable to permit those in this category only a limited form of additional anonymity, under which their surnames will be disclosed but their forenames will not. It seems to us that this is the best available solution to a difficult problem, because it will create a significant extra element of assurance for these individuals as regards their personal security, without having any material adverse effect on the fulfilment of our task. As to the former point, if the surname is even moderately common, it will be extremely difficult to locate an individual on the basis of that name alone. As to the latter point, we do not think that the forenames of those involved represent a critical element of the facts that we are required to determine. In addition, we believe that by disclosing the surnames of these soldiers, we will avoid giving them or others the false impression that they are immune from any effective public scrutiny, or from criticism should it prove to be justified. It will of course be open to any soldier to waive the anonymity granted to him if he so desires.
A separate issue is the possibility of special factors in individual cases. We have in mind here that particular soldiers, whether or not currently represented, may be able to advance special reasons which demonstrate that they are at greater risk than others and that the level of anonymity that they would receive under the principles outlined above would be inadequate. For example, a witness currently living in Northern Ireland might persuade us that he should be allowed to give evidence anonymously. Or a witness with a particularly unusual surname might persuade us that he should not have to disclose it because it will make his whereabouts readily discoverable. We would stress that these are only examples, and that everything will depend on the circumstances of the individual cases. But we think it right to give those to whom special considerations may apply the opportunity to put them forward. It must be understood, however, that we will entertain these applications only on the basis that they are justified by the special personal circumstances of the applicant. We do not propose to alter our basic approach to the issue of anonymity.
We referred earlier in this ruling to the requests for anonymity received directly from a small number of soldiers. With one exception, these requests raise no issues of general principle. We propose now to notify these soldiers of this ruling. If there are grounds for them to argue that special factors apply in their cases, they will have the opportunity to do so in the same way as others. If the soldiers concerned agree that no special factors apply to them, there will be no need to consider their individual applications any further.
No risk exists to the personal safety of soldiers who have died since Bloody Sunday, and the prospect that the surviving relatives of a deceased soldier would be sought out and attacked by way of revenge for Bloody Sunday seems to us somewhat remote. However, we think it only fair that, before we release the names of any soldiers who have died, we should try to contact their next of kin and give them an opportunity to make a special reason application if so advised. We propose to do this as soon as possible, although it will inevitably take some time to establish with certainty which soldiers have died and to locate their next of kin.
We should also say that the Home Office has offered to provide threat assessments for individuals in any case in which that would be helpful to the Tribunal. We will take up this offer in dealing with any applications based on special factors if we consider that an individual threat assessment would assist us.
Where anonymity of any kind is granted, our intention is to prevent the name or other relevant details from reaching the public domain, rather than to restrict the dissemination of information that has already become public. If it becomes clear to us that the name or other details of any of the soldiers who have been granted anonymity are in fact public knowledge, so that any continuation of the restriction would be pointless, we will lift the restriction.
In this context, we must mention that the submissions on behalf of the next of kin of James Wray include a list of what are said to be names of soldiers that are already known. There are 24 names on the list, including those of the five senior officers who gave evidence to Lord Widgery without anonymity. As to the remainder, the names of those numbered (iv), (v), (xiv) and (xv) in the list appear in the transcript of the Widgery Inquiry. These four include the client of Mr Lawton to whom we referred in paragraph 15(i) above. The list also contains the name of another client of Mr Lawton, soldier 236, who has been named as the officer commanding Support Company on many occasions since 1972. We find it impossible to see how soldier 236, or any of those whose names appear in the Widgery transcript, could possibly derive any benefit from a restriction on the disclosure of their names in the course of this Inquiry. Accordingly, in these five cases, which include the exception referred to in paragraphs 15(viii) and 49 above, we decline to impose any such restriction. Nor will we permit any application based on special reasons in these cases, since for better or worse the identities of these individuals are already in the public domain.
As to the other 14 names on the list in the Wray family's submissions, we do not think that it is appropriate for us to confirm or deny at this stage the accuracy of the information given. The reason for this is that it is not always clear to us from what source the information has been obtained, or whether those who compiled the list are in a position to match the names to the code letters and numbers used at the time of the Widgery Inquiry. We cannot therefore be sure that anonymity has been completely lost or that a continued restriction would necessarily be pointless.
We add that Mr Glasgow expressed strong objection to the fact that this list was put before the Tribunal at all. He describes it is as "inappropriate and mischievous to publish names in this way and at this time". Although we understand his concern, we do not think that this criticism is justified. There is no evidence to suggest that any of the information in the list was obtained by unlawful or improper means, nor that the publication of these names contravenes any legal restriction. The purpose of putting the names before the Tribunal was to demonstrate that no useful purpose would be served by permitting these witnesses to give evidence anonymously. We think that this purpose was legitimate.
A further point which appears from the submissions on behalf of the Wray family is that there may be instances in which the names of the soldiers prove to be of direct and immediate relevance to the facts into which we are inquiring. The prime example here is that of Mr Joseph Mahon, one of those wounded on Bloody Sunday in or around Glenfada Park. We understand that Mr Mahon will say that he heard one of the soldiers being referred to as "Dave". If that is his evidence, it is very likely to become necessary for the interested parties to be told which, if any, of the soldiers who were in Glenfada Park had that name.
If satisfied that it is necessary in a case of this kind, we will be prepared to allow forenames to be disclosed, even where otherwise they would not be because of our decision to grant a limited degree of anonymity to those who fired live rounds on Bloody Sunday. Equally, if a similar situation were to arise in relation to a soldier to whom we had granted anonymity for special reasons, we would have to consider whether the restriction on the disclosure of the soldier's name should be removed or modified. We would not however make any such exceptions unless persuaded that it was clearly necessary to do so, and we would give all concerned an opportunity to make representations to us before taking any decision of this kind.
We turn now to practicalities. Until statements are taken from the military witnesses, we will not know which soldiers, apart from those known to Lord Widgery as A to Z (excluding I and W) and AA to AD, admit to having fired live rounds on Bloody Sunday. For this reason, and also because of the possibility of applications based on special factors, it will not be possible for us to release the names of any of the soldiers immediately, except in so far as we do so in this ruling by refusing anonymity in five individual cases. However, after the military witness statements have been taken, we will release the witness statements, which will bear the actual names of the soldiers save to the extent that anonymity has been granted. At that stage we will also make available, again save to the extent that anonymity has been granted, documentary material containing the names of soldiers, which has hitherto been released only in redacted form.
It is of considerable importance that any applications based on special reasons should be brought forward as soon as reasonably possible. We wish to have all issues of anonymity finally resolved by the time we have completed the taking of the main body of military witness statements. Any applications made after that are likely to be too late, and we will not hold up the publication of statements or documents containing soldiers' names in order to cater for the possibility of late applications.
It will be appreciated that instances may arise when publication of the details or grounds of the application to interested parties or otherwise would defeat the very purpose of the application itself. Subject to this we intend to circulate applications to interested parties for their comments before making a ruling, but we may not do so if on an initial review of the application we are satisfied that it should be refused. It follows that those making applications should do their best to ensure that they are prepared in a form in which they can be provided to the interested parties without defeating the purpose of the application. The Solicitor to the Inquiry will if necessary provide guidance as to how this may be done. Where appropriate, and depending on the circumstances, it may be possible for details that cannot be revealed without defeating the purpose of the application to be supplied to the Tribunal in a separate letter.
The following is a summary of the decisions that we have reached:
We will withhold from publication the addresses, telephone numbers and other personal details of all military witnesses, apart from their names, unless they inform us that they are content that this information should be published.
We will impose no restriction on the publication of the names of soldier 236 or of the soldiers whose names appear in the transcripts of the Widgery Inquiry.
We will allow to any soldier who admits that he fired one or more live rounds on Bloody Sunday a limited form of anonymity, under which his surname will be published but not his forenames. However it will be open to such a soldier, or his next of kin if he is now dead, to apply for full anonymity if there are special reasons that make it necessary.
We will not restrict the publication of the names of any other soldiers unless they, or their next of kin if they are now dead, satisfy us that there are special reasons which make such a restriction necessary.
We will be prepared to lift or modify the restrictions imposed under the principles set out above if circumstances arise in which names or other restricted information prove to be of direct and immediate relevance to our factual investigation. But we will only do this if and to the extent that we are satisfied that it is clearly necessary.
We will also be prepared to lift the restrictions imposed under these principles if we are satisfied that the restricted information is in fact in the public domain.
Special reason applications must be made as soon as reasonably possible and are likely to be too late if they are made after the completion of the military statement taking exercise. We will (subject to what we have said in paragraph 60 above) circulate them to the interested parties before ruling on them.
We will not immediately release the names of any of the soldiers, except in so far as we do so under (ii) above, because of the need first to ascertain which soldiers admit that they fired live rounds, and because of the possibility of special reason applications. In due course, however, we will release witness statements and other documents containing the names of soldiers, without redaction save to the extent that anonymity has been granted.
