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Rulings & Judgments
Further Rulings and Observations
by
Lord Saville
Mr Justice Hoyt
Sir Edward Somers
February 2000
Sources
1. In our October 1999 Rulings and observations, we considered a series of applications made by different sectors or representatives of the media to the effect that we should not require them to identify their sources.
2. In the case of Ulster Television, we ordered the production of an unredacted statement of a particular soldier, in order that the Inquiry could identify the soldier concerned. However, we were subsequently given information from another source which enabled us to identify the soldier, and consequently we have informed Ulster Television that we no longer require them to comply with our order.
3. In the case of The Daily Telegraph and its then Irish Correspondent Mr Harnden, we concluded that if we could not obtain the information from other sources, it was necessary in the interests of justice that Mr Harnden should give evidence to us as to the identity of X and Y (who will remain anonymous in accordance with the October 1999 ruling on anonymity) and as to the full account given to him by X and Y as to what they did on 30th January 1972. However, we did not make an order in this case in October, since it seemed then that there was some prospect that we could identify X and Y from other sources without undue delay, in which case an order might well be unnecessary.
4. In the case of Y, this remains the case, since there is still a prospect (albeit slim) that we can identify this soldier from other sources. In the case of X, however, we are now satisfied that the only realistic means of identifying this soldier and of learning the full account of what he said is through Mr Harnden. X (according to the article written by Mr Harnden) had been interviewed by Eversheds on behalf of the Inquiry before 20th May 1999, had been in one of the first pigs, had fired shots and had given evidence at the Widgery Inquiry. The only soldier who had been interviewed by Eversheds before 20th May 1999 who could fit this description is Soldier J, but Mr Lawton, his legal adviser, has informed us on instructions that Soldier J denies that he is X.
5. On 1st October 1999 the Inquiry served a subpoena on Mr Harnden and explained to him that this put him under a legal obligation to attend the Inquiry and that he would have to do so if the Tribunal ruled that he should reveal his sources and give a full account of what he was told. We now make such a ruling in relation to X. We invite Mr Harnden's legal advisers to discuss with the Solicitor to the Inquiry the most convenient way for Mr Harnden to comply with this ruling, bearing in mind that the Inquiry needs the information in question as soon as possible. If it is not possible to agree a suitable time and place, the Tribunal will itself fix a date for Mr Harnden to attend.
6. So far as the remaining applications are concerned, we are not yet in a position to make further rulings.
7. At the hearings last autumn, we considered both oral and written submissions from interested parties on the application by the Ministry of Defence to redact six documents by removing what was said to be sensitive information from them.
8. In our October 1999 Rulings and Observations we announced our conclusion that the application should be supported by a Public Interest Certificate from the Secretary of State. Such a Certificate was in due course produced and has been circulated to interested parties, who were given an opportunity to make further submissions. We are accordingly now in a position to rule on this matter.
9. The Certificate in question is dated 13th December 1999. It relates to five documents, namely INTSUMS 2/72, 3/72, 4/72, 5/72 and 102. All these documents are Intelligence Summaries dating from around the time of Bloody Sunday. The first four emanate from Headquarters Northern Ireland and the fifth from the headquarters of 8th Infantry Brigade.
10. At the hearing last autumn there was mention of another Intelligence Summary (Intsum101) but since we are satisfied (having examined an unredacted copy) that the redactions to that document are of matters that have no relevance to the Inquiry, we can see no good reason why an unredacted version should be published.
11. We have also examined unredacted copies of the remaining documents. We raised with the Ministry of Defence the question whether it was necessary, in Paragraph 36 of INTSUM 102, for the names of the Chairman and Secretary of the James Connolly Republican Club to be redacted, since these names had appeared in the Derry Journal of 23rd November 1971. The Ministry of Defence accepted this point and accordingly those names are no longer redacted.
12. We also raised with the Ministry of Defence whether it was necessary to make certain other redactions. This led to the issue by the Secretary of State of another Certificate, which contained an explanation of why this particular material was covered by the grounds put forward in the first Certificate. We are satisfied with this explanation. We have not published this Certificate, because to do so would reveal the very material in question.
13. The application is based on three main grounds. The first is that the redacted material gives rise to a genuine risk that informers who provided information might be identified, and that were this to happen, the lives of those informers would be put in jeopardy, since it is the customary practice of terrorists in Northern Ireland to murder informers; and that even if the informer has died, there is a real prospect that reprisals would be exacted against the family of the informer. The second ground is that revealing information of this kind would undermine the confidence which current informers have in the determination of the Ministry of Defence to protect them and would thus run the risk that such informers would cease to provide information. The third ground is that revealing information of this kind would deter potential informers from coming forward.
14. At present there is a cease-fire in Northern Ireland, but not all terrorist organisations have declared themselves party to that cease-fire, nor (as the Certificate points out) has there to date been much progress in the decommissioning of weapons. The Secretary of State in his Certificate states, and we accept, that over the years intelligence provided by informers has been of crucial importance in countering terrorism in Northern Ireland. We further accept that it is the public interest that the lives of informers and their families should not be put at risk and that nothing should be done which would prejudice the capability of the Government to respond to the threat of terrorism or which would be of assistance to terrorists, either now or in the future.
15. We are satisfied that the material in question does prima facie attract Public Interest Immunity for the reasons given by the Secretary of State. We therefore turn to consider whether the public interest in non-disclosure is outweighed by the public interest in disclosure for the purposes of this Inquiry. Again we have considered this aspect of the matter in the light of the presently redacted material.
16. As we have said on a number of occasions, the Tribunal is determined to conduct as open an Inquiry as possible, so that we require powerful reasons for departing from this principle of open justice. The very nature and importance of this Inquiry makes this approach doubly essential. Thus we are not persuaded that any of the matters relied upon by the Secretary of State in the first Certificate entails the automatic acceptance of the application. However, having considered the submissions made to us, we have concluded that these matters do outweigh the need for openness and so rule. In reaching this conclusion we have taken into account the fact that in the redacted portions of the documents, there is nothing relating to IRA plans for the march on 30th January 1972. This deals with a point of concern raised by the families at the autumn hearing. We should also observe that if hereafter we concluded that the existence of the redactions was materially impeding us in our search for the truth, then we would reconsider our ruling.
17. It has been suggested that civilian witnesses called to give evidence to the Inquiry should as a general rule be legally represented and that the cost of such representation should be met from public funds. We do not accept that there should be any such general rule. As we have said before, we shall recommend that the reasonable costs of legal representation should be met from public funds in any cases where we are persuaded that the interests of justice require legal representation. An obvious case for representation is where a witness is facing serious allegations. We are not persuaded that the interests of justice require legal representation merely on the grounds that the person concerned is called to give oral evidence.
Statements on the Inquiry Web Site
18. We wish to revisit our 4th June 1999 announcement that statements given by witnesses who do not testify orally will not be posted on our Internet Web Site (www.bloody-sunday-inquiry.org.uk). That direction was issued following our May 1999 ruling on anonymity. Subsequently, the soldiers successfully challenged our decision, thus removing the reason for not posting the statements of those witnesses who do not testify orally.
19. We have said that we will take into account all statements that witnesses give to the Inquiry - whether they testify orally or not. Indeed, in appropriate cases we may consider unsigned statements and statements (both oral and written) given to others. In keeping with our objective of making the Inquiry as open as possible, it is important that the public have access to, and be able to view, the material upon which our decision is based. As statements given by those witnesses who do not testify orally form part of the record of the Inquiry and will be taken into account in our decision, we propose at an appropriate time to post all witness statements on our Internet website, unless we are persuaded in any particular case that there are good reasons for not doing so.
Lord Saville
Sir Edward Somers
Mr William Hoyt
7th February 2000
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