Rulings & Judgments

The Bloody Sunday Inquiry

October 1999 Rulings and Observations

During the week commencing Monday 27^th September 1999 we heard oral submissions on several matters and we can now make a number of further rulings and observations.
Anonymity

(a) Soldiers who fired or who are alleged to have fired live rounds.
The Court of Appeal has now reversed the decision of the Tribunal given in May and has ordered that those soldiers who accept that they fired live rounds on Bloody Sunday or who are alleged to have done so should be granted anonymity by the Tribunal.
It is clear from the judgments of the Court of Appeal (and indeed from the majority judgments in the Divisional Court which the Court of Appeal approved) that this decision only relates to the situation as it presently exists and does not prevent the Tribunal from reconsidering the question of anonymity in the future, for example if it became apparent that the grant of anonymity was impeding the Tribunal in its search for the truth, or at the stage of producing its Report. It is also clear that the decision does not relate to those soldiers whose identity is clearly already in the public domain or who do not wish to be treated anonymously. Furthermore, it is accepted by Counsel acting on behalf of the family of soldier T (who is deceased) that the decision cannot at present extend to him, since there is at present no evidence that his family have reasonable grounds to fear for their safety should his name be published. The same must apply to other deceased soldiers.
On this basis therefore we now rule that all living soldiers whose identity is not already clearly in the public domain and who admit firing live rounds on Bloody Sunday or who are alleged to have done so, shall not without their consent be identified in the course of the proceedings of this Inquiry unless the Tribunal directs or rules otherwise. As is implicit in the decision of the Court of Appeal, the Inquiry may itself, of course, identify soldiers to others if this is necessary for the purpose of seeking the truth about Bloody Sunday, for example in order to trace possible witnesses or to take meaningful statements from witnesses. Subject to this, our ruling means that the identity of these soldiers cannot be disclosed to interested parties or otherwise in the course of the proceedings of this Inquiry and that all concerned will have to take great care to preserve this anonymity, by not disclosing the names, addresses, telephone numbers or other personal details of these soldiers.
If any question arises as to whether the identity of any particular soldier otherwise covered by this ruling is clearly in the public domain, the Tribunal will rule on the matter, but until it does so that soldier will be treated as being entitled to anonymity.
For the time being deceased soldiers who would otherwise be covered by this ruling will also be treated as being entitled to anonymity. The Tribunal will obtain security assessments in respect of the families of those soldiers and will also consider any submissions on anonymity from those families if these are made within a month from the date of this ruling, before deciding whether these deceased soldiers should continue to be anonymous. Any such submissions must be presented in the form specified in our previous rulings so that all interested parties can, to the greatest extent possible, be given an opportunity to comment on them.
(b) Soldiers who did not fire or who are not alleged to have fired live rounds.
Counsel for those soldiers who have not admitted firing live rounds on Bloody Sunday or who are presently not alleged to have done so have submitted to us that the reasoning of the Court of Appeal applies with equal force to non-firing soldiers, so that although the previous ruling of the Tribunal in respect of those soldiers was not reversed by that Court (which was only dealing with soldiers who fired), nevertheless the Tribunal must itself now reverse that ruling. Although strictly Counsel could speak only for those soldiers they represent, the submission must apply to all soldiers in this category.
We have concluded that we have no option but to accept this submission.
The Court of Appeal held that "the right approach here once it is accepted that the fears of the soldiers are based on reasonable grounds should be to ask if there is any compelling justification for naming the soldiers, the evidence being that this would increase the risk."
The Court of Appeal decided that there was no compelling justification in the case of the soldiers who fired, notwithstanding that in the view of the Tribunal it was the conduct of these soldiers that lay at the heart of the Inquiry. It seems to us that it follows that there is either a lesser or at least a no greater justification for those soldiers who did not fire, nor has anyone to date suggested that their conduct is of equal or greater importance.
We have already concluded that all soldiers (whether or not they fired) have grounds for their assertion that they have genuine and reasonable fears for their personal safety were their identities to be revealed. To our minds therefore the only possible distinction between the soldiers who fired and those that did not is that the level or degree of risk is lower in the latter cases. Indeed this was the only distinction suggested to us by those who are opposed to anonymity. However there is nothing in the judgments to suggest that this is a material distinction. On the contrary the Master of the Rolls was of the view that from the point of view of the soldiers "it is what they reasonably fear which is important not the degree of risk which the Tribunal identifies." Such an observation must apply equally to the non-firing soldiers.
It was suggested that to grant anonymity to all the non-firing soldiers would make it very difficult properly to investigate the events of Bloody Sunday, especially for those representing the interests of the people who died or who were injured on that day. We accept that difficulties may arise, but we are not at present persuaded that they are insuperable or of such a nature as to impede the search for the truth. If we are later persuaded to the contrary, then we would have no hesitation in reconsidering the matter.
It was also suggested that granting anonymity to non-firing soldiers would undermine public confidence in the Inquiry and its public investigative function. However, the Court of Appeal considered that this would not be so in the case of the soldiers who fired. Again it seems to us that we must accept that view, which must be at least equally applicable in relation to the soldiers who did not fire.
Reliance was also placed by those who are opposed to extending anonymity to non-firing soldiers on the words of the Master of the Rolls at the end of his judgment, where he said this: -
"We were asked to indicate our views as to the position of other soldiers. We would like to do so because we are conscious that more attention has already been given to this issue than is desirable and further disputes should if possible be avoided. However, reluctantly we have come to the conclusion that it would not be right to say more than that we cannot say on the material before us that it would be unlawful for the Tribunal to insist on other soldiers being named."
Although this passage is open to a number of possible interpretations, it seems to us that what the Master of the Rolls was probably doing was to acknowledge that further disputes were likely to arise over the question of anonymity for other soldiers, that the Court would have liked to have said something that would prevent this happening, but that it reluctantly felt unable to do so. The Master of the Rolls was clearly not attempting to resolve or materially to help to resolve the position of other soldiers, for were that to have been his intention, he would not have reached his conclusion with reluctance.
In these circumstances it is our view that in accordance with the principles now laid down by the Courts we must reverse the ruling that we made in May and instead extend the ruling that we have now made in respect of the soldiers who accept that they fired live rounds or who are alleged to have done so to all soldiers who played a part in relation to Bloody Sunday, whether before, during or after the event. This we therefore do.
What we have said in relation to the ruling on the soldiers who fired also applies to those that did not. Thus, for example, we shall deal with deceased soldiers and with any question whether names are already clearly in the public domain in the same way, though the latter does not apply to (1) those soldiers whose identity the Tribunal has already ruled is in the public domain, (2) those soldiers who gave evidence to the Widgery Inquiry under their own names, (3) those soldiers whose names appear in documents which are available from the Public Record Offices, (4) Colonel Overbury, whose witness statement (given under his own name) was read out to us at our April hearing and (5) General Sir Anthony Farrar-Hockley and General Sir Frank Kitson, since the Tribunal considers that their identities are clearly public knowledge.
Public Interest Immunity
The Ministry of Defence has made an application for public interest immunity in respect of parts of a number of Intelligence Summaries prepared in 1972. After considering the oral argument we have concluded that this application should be supported by a PII Certificate from the Secretary of State. We have accordingly requested the Minister to provide a Certificate as soon as possible if the application is to be maintained. Upon receipt of the Certificate we shall make our ruling on the application.
Experts
We have now received and distributed five reports from experts retained by the Inquiry and expect to receive and distribute further reports in the near future. It seemed to us that this was an appropriate time to invite submissions from interested parties on the subject of experts and expert evidence and have now considered both written and oral submissions on this subject.
Two main issues emerged. The first of these relates to the use that may be made of experts retained by interested parties.
All interested parties may, of course, engage the services of whatever experts they like in order to evaluate the reports produced by the Tribunal or to help explain those reports, where this is necessary, and communications between such experts and interested parties would, other things being equal, attract legal professional privilege. However, if any interested party wishes to cross-examine experts retained by the Inquiry, or to put in evidence the views of their own experts, other considerations apply.
The reason for this is the inquisitorial nature of an Inquiry of the present kind. In our Rulings and Observations of July 1998 we quoted with approval the views of Professor Walsh on the proper nature and function of such an Inquiry; and it is worth quoting again what he said: -
"Under our adversarial system of justice when the High Court is hearing a case between two opposing parties, it does not play an active role in adducing evidence to determine the factual truth of a matter in dispute between the parties. Its primary role is to make a final determination on the basis of the evidence presented to it by the opposing parties. In discharging this role it relies on the parties to present all the relevant evidence and to subject the evidence of their opponents to searching scrutiny. The High Court itself will not pursue this task. Its input is largely confined to ensuring that the parties respect the rules of procedure in adducing the evidence and in scrutinising each other’s evidence. At the end of the day the primary function of the High Court is to decide in favour of one side or the other in accordance with the rules of the game. It is not concerned first and foremost with establishing the truth. It may be, of course, that the adversarial procedure and the attendant rules applied by the Court are best suited to producing a final determination which accords with the truth in any case. That, however, is not necessarily the same thing as saying that the High Court is actively engaged in a search for the truth.

The Tribunal of Inquiry by contrast is set up specifically to find the truth. It is expected to take a positive and primary role in searching out the truth as best it can. Certainly, it will seek the assistance of any interested party who has evidence to give or who has an interest in challenging the evidence offered by another party. It must be emphasised, however, that it is the Tribunal, and not the parties, which decides what witnesses will be called to give evidence. Indeed, strictly speaking there are no parties, no plaintiff and defendant, no prosecutor and accused, only an inquiry after the truth. It is the Tribunal which directs that inquiry. All the witnesses are the Tribunal’s witnesses, not the witnesses of the parties who wish them to be called. Whether any individual witness will be called is a matter for the Tribunal. Moreover, the Tribunal can be expected to act on its own initiative to seek out witnesses who may be able to assist in the quest for the truth. Ultimately, the task facing the Tribunal is to establish the truth, not to make a determination in favour of one party engaged in an adversarial contest with another."
It will be recalled that we expressed similar views in our Opening Statement. As Lord Justice Salmon put it in his Royal Commission Report on Tribunals of Inquiry: -
"The task of inquiring cannot be delegated by the Tribunal for it is the Tribunal which is appointed to inquire as well as to report. The public reposes its confidence not in some other body or person but in the Tribunal to make and direct all the necessary searching investigations and to produce the witnesses in order to arrive at the truth. It is only thus that public confidence can be fully restored."
In these circumstances, if any challenge is to be mounted to the views expressed by the experts to the Inquiry, it is for the Tribunal first to evaluate the basis and strength of such a challenge, because it is the Tribunal that is charged with the duty of seeking the truth. It follows from this that before the Tribunal will consider cross-examination by interested parties of its experts it will have first to be satisfied that this is required in the quest for the truth. It could only be satisfied if it is informed in advance of the reasons why it is thought that cross-examination is required, the nature of the cross-examination proposed, and the material (including its source) upon which it is proposed to base the cross-examination. Since the Tribunal is determined to conduct a thorough, full and fair inquiry, this information would then be provided to all interested parties, since, as we have said on numerous occasions, we are not minded to allow surprise and ambush.
If the Tribunal concluded that there was substance in the challenge, it would then decide whether it was appropriate for that challenge to be developed by way of cross-examination (by its own Counsel or by interested parties) or by some other means.
We now turn to the question of evidence from experts retained by interested parties. In this context much the same considerations apply. As Professor Walsh points out, all the witnesses are the Tribunal’s witnesses, not the witnesses of the parties who wish them to be called. There is, therefore, no question of any of the interested parties being permitted to call their own expert witnesses. What they can do, however, is to seek to persuade the Tribunal that in the interests of seeking the truth, it is not only necessary for the Tribunal to call additional experts, but also to call those that they have retained.
As we said in our Rulings and Observations of July 1998, in the nature of things the Tribunal cannot simply accept evidence (whether factual or expert) prepared by interested parties, for such evidence is, inevitably, likely to be carefully selected and presented so as best to support the contentions of those who proffer it. As we said, "the Tribunal alone is in a position to collect, collate, analyse and present all the available evidence, with no pre-conceived views at all, and with only its desire to seek the truth."
It follows from what we have said that before any question of calling additional experts can arise, the Tribunal will have to be satisfied that the expert in question can materially assist in the impartial search for the truth. The Tribunal could only be satisfied if it is first provided with full particulars of all instructions given to the expert from time to time, copies of all written reports received from the expert, and attendance notes of all oral reports; and if the expert in question is made available for interview on behalf of the Inquiry. Once again, and for the same reasons as those expressed above, this information would be made available to all interested parties.
On the basis of these considerations, we give the following directions:

Interested parties have the period expiring on 30^th November 1999, during which they may in writing seek through the Inquiry explanation or clarification of anything contained in any of the Reports so far served, or make suggestions for further work.
The Tribunal will request its experts as may be appropriate to provide a response by 14^th January 2000.
Interested parties have the period expiring on 29^th February 2000, during which they may apply to the Tribunal for leave to cross-examine the Tribunal’s experts. Any such application must set out the reasons why it is thought that cross-examination is required, the nature of the cross-examination proposed, and the material (including its source) upon which it is proposed to base the cross-examination.
Interested parties have until the same date to apply to the Tribunal for the Tribunal to call additional expert evidence. If the expert is one consulted or retained by the interested party, the application must be accompanied by full particulars of all instructions given to that expert from time to time, copies of all written reports received from that expert, and attendance notes of all oral reports; and the expert must be made available for interview on behalf of the Inquiry. In any event the application must explain in full detail why it is submitted that the evidence is necessary for the purposes of the Inquiry.
Depending on when further Reports are received from experts retained by the Tribunal and distributed to interested parties, we shall provide appropriate modifications to this timetable to cover those cases.

We have set out these time limits since it is obvious that any questions concerning experts and expert evidence must be resolved at the earliest possible opportunity. We would strongly urge all concerned to adopt a "rolling" approach to this matter, rather than waiting until the end of the specified periods. We appreciate, of course, that we cannot anticipate every eventuality or circumstance and thus, as with other directions that we have given, we are always ready to reconsider the matter if good reason for doing so is shown.
The second of the two main issues that has arisen in relation to experts and expert evidence is whether the Tribunal should recommend the payment out of public funds for the families of those who died and those who were wounded on Bloody Sunday to retain their own experts at this stage, in order to evaluate the reports produced by the Tribunal or to help explain those reports where this is necessary; and perhaps (depending on the circumstances) to form the basis of an application to cross-examine or for the Tribunal to call further expert evidence.
At the recent oral hearings Counsel for some of the soldiers acknowledged that his clients were seeking the assistance of experts for at least some of these purposes. Counsel for some of the families and the wounded submitted that equality of arms and the concept of a level playing field demanded that his clients should not be deprived of similar facilities through lack of funds.
Put simply, we agree. Although this is an inquisitorial inquiry we accept that it would be unfair, or at least appear to be unfair, if those interested parties who have one view of what happened on Bloody Sunday were able to employ expert assistance, while others with sharply conflicting views were unable to do so. Counsel for all the families and the wounded were agreed that this was a case where they could and would pool their interests and engage common experts. Accordingly, we shall recommend that such funds as are necessary and reasonable to allow the families and the wounded to retain and instruct experts on the basis proposed should be provided from the public purse.
The directions that we have given above in relation to experts and expert evidence will apply of course to any experts retained under these arrangements. As at present advised, it seems to us that in the first instance all that is necessary is the reasonable cost of instructing experts for the following purposes: -

assisting clients, solicitors and counsel to understand fully the reports of the Tribunal’s experts;
advising on any questions, criticisms or suggestions for further work that should be put to the Tribunal’s experts;
advising on any responses received from the Tribunal’s experts to any such questions, criticisms or suggestions; and
formulating proposals for any further work to be carried out, subject to the Tribunal’s approval, by experts other than the Tribunal’s experts.

The Tribunal will have to be satisfied that any expenditure for these purposes is reasonable before it is incurred. The Tribunal will also have to be satisfied that any further proposed expenditure (for example, for the preparation of formal reports) is both reasonable and necessary before it is incurred.
Sources
We have 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 confidential sources of information. The applications involved are as follows:

An application by the BBC and Mr. Peter Taylor, a well-known journalist, that we should not require them to identify sources of information contained in a documentary entitled "Remember Bloody Sunday", made by Mr. Taylor, and in certain other materials;
An application by ITN that we should set aside a witness summons issued on 16^th August 1999 requiring them to produce, inter alia:
"(iii) All transcripts, notes and other written records of all interviews,

including telephone attendance notes, made in the course of research and preparatory work carried out for the purposes of the Channel 4 News broadcasts;

(iv)All untransmitted recordings of filmed or video taped interviews conducted for the purposes of the Channel 4 News broadcasts;"
An application by the Daily Telegraph and Mr. Toby Harnden that we should set aside two witness summonses issued on 5^th August 1999 requiring them to produce to the Tribunal:
"(i)the full accounts given to the "Daily Telegraph" by former members of the Parachute Regiment, to which reference is made in the article by Toby Harnden entitled "We want the truth of Bloody Sunday to come out" published in the "Daily Telegraph" on 20 May 1999, in so far as those accounts were given in writing and;

(ii) the notes recording those accounts, in so far as the accounts were given orally."
An application by UTV that we should set aside a summons issued on 16^th September 1999 requiring them to produce the unredacted original of the statement of a particular soldier.

BBC

On Tuesday, 28^th January 1992 the BBC broadcast a documentary entitled "Remember Bloody Sunday" which had been made by Mr. Taylor. On Sunday the 26^th January 1992 the Sunday Times published an article written by Mr. Taylor entitled "Bloody Sunday – An Open Wound" which covered much the same ground as the documentary. In 1997 Mr. Taylor wrote a book entitled "PROVOS – the IRA and Sinn Fein", a chapter of which covered Bloody Sunday.
The Inquiry Secretariat asked the BBC and Mr. Taylor for the research material that underpinned his documentary. Both of them made it plain that they would not be willing to reveal any confidential sources and a hearing was, accordingly, fixed for April of this year in order to consider whether the Tribunal should make an order which would have that effect. During the argument on that occasion it became apparent that some of the material that had not been provided ("informative material") did not, or need not, reveal confidential sources – either because the source was not confidential or because the name could be redacted. There was, and could be, no objection to the production of informative material, as opposed to material that revealed a confidential source ("source material"), and after the hearing this informative material was produced. It consisted either of transcripts of untransmitted interviews or Mr. Taylor’s notes, redacted where necessary.
Prior to the April hearing Counsel to the Tribunal had identified seven items of source material which remained undisclosed in the documentary, the article and the book. These were the following:

"Tape Reference

9.33 The identity of those in the IRA who had "agreed to remove its weapons from the area".

11.45 The identity of the persons who knew that the Army had a secret plan to teach the Derry hooligans a lesson.

27.22 The identity of "Denis", who appears to have been an eye-witness of a man shot in the face, and of the shooting of Donaghy 27.22 and that Donaghy had no nail bombs 43.26.

"The Provos"

Page Number

117 The identity of the RGJ Officer who telephoned Brigadier MacLellan and said that it was "mad" to bring the Paras in.

120 The identity of the IRA men who revealed the PIRA’s orders and disposition – in addition to Tony Miller

123 The identity of the former Official who gave information about the Officials’ orders.

"Bloody Sunday – An Open Wound"

The Article refers on the penultimate page, 4^th column, to an Official gunman being above the Bogside around Bishop Street firing shots."

After the hearing in April the Tribunal issued a ruling, dated 30^th April 1999, whereby it postponed a decision as to whether to order the production of source material until after the production of the informative material.

We have, therefore, to decide whether or not to require Mr. Taylor now to identify the sources referred to in paragraph 39 above, save for the identity of "Denis" whose identity has been discovered by the Tribunal by other means. No one has suggested that the content of the informative material affects this question. But that informative material does, itself, contain a transcript of an interview with an unidentified officer in 1 Para who was present on Bloody Sunday. This gives some important evidence about the orders given by Colonel Wilford to his men and by the Brigade to Colonel Wilford and as to the officer coming under fire and hearing explosions like nail bombs. The question, therefore, arises, as to whether we should order the identification of the source in relation to that material as well.
The notebooks provided to the Inquiry were very difficult to decipher. A dispute arose as to whether or not Mr. Taylor should provide details of the relevant entries by dictating them onto an audiotape. That dispute was not resolved in time for intelligible transcripts to be available at the hearing derived from those audiotapes. As a result it became necessary for the Inquiry to arrange for the notebooks to be professionally transcribed. Shortly after this Mr. Taylor agreed to dictate the relevant material. The result is that only a partially satisfactory transcript has been provided. More work needs to be done in order to create a legible and intelligible copy of the notebook. It is plain from what has already been transcribed that those notes refer to a number of confidential sources. Nothing in this ruling deals with such sources, which may have to be the subject of a separate application.
ITN
Between 17^th January 1997 and 28^th January 1998 Channel 4 News broadcast seven news reports about Bloody Sunday. Four of them contained information derived from confidential sources. Counsel for the Tribunal identified that source material as follows:

In the programme broadcast on 29^th January 1997 statements are made by an ex-soldier from the Royal Anglian Regiment. He says that he formed part of a 14-man platoon on the Walls and that there was an Army sniper from the Royal Anglians in a derelict house nearby. That sniper shouted, "He has got a gun". Then three rounds were fired. Then he heard him yell, "Bloody Hell, I’ve got two with three shots". The witness could not say for certain whether the soldiers near the Walls were fired at first. See Transcript, page 14. This witness is referred to by ITN as Soldier A. (These and the following ITN letters are not the same as the letters given to soldiers in the course of Lord Widgery's Inquiry.)
In the news report of 18^th March 1997, there is an interview with an unnamed paratrooper. In that interview he says that command and control of the forward soldiers was absent or relatively absent for 15 minutes on Bloody Sunday and that there were a number of unfortunate actions and shameful and disgraceful acts and that there were unjustified shootings. Transcript pages 27-30. This witness is referred to by ITN as Soldier B.
In the news report for 16^th May 1997, a soldier, who was a marksman with the 22^nd Light Air Defence Regiment, says that he was not aware of paratroopers being fired upon at any stage, and that they fired from the hip in one area (Transcript, pages 35 and 36). At the end of the programme he says that a big wrong was done (Transcript, page 38). This soldier is referred to by ITN as Soldier C.
A second soldier, a paratrooper, says that there were certain individuals who overreacted and probably did go beyond the line. He appears to be saying that the paratroopers were fired upon, but it is not possible to be satisfied as to that without seeing the whole of the untransmitted material from which the transmitted material was taken. This soldier is referred to by ITN as Soldier E.

A third soldier says that if the Government officially apologised for Bloody Sunday he would take Irish Citizenship. This soldier is referred to by ITN as Soldier D.
In the report for 12^th January 1998 Alex Thomson, the news reporter says:

"We took an army ballistics expert with many years’ experience in Northern Ireland to the sound laboratory. He said this was the Paratroopers’ rifles firing and the IRA replying with an automatic pistol... that’s confirmed by a source from the official IRA who told Channel 4 News they used a Smith & Weston hand gun that day."

We were told that the Official IRA source referred to in (d) is not known to ITN or to either of the reporters. The reference was, apparently, to a source referred to in a book, details of which ITN have undertaken to provide to us.

ITN is, also, in the course of providing to the Tribunal the informative material, not contained in the reports themselves, which underpins the broadcasts. It was not suggested to us that that informative material had any bearing on the question of whether we should require ITN to identify any of its confidential sources.
UTV
UTV broadcast on 22^nd January 1998 an Insight programme. In the course of that programme there appears the following passage (the words of the soldier in question being spoken by an actor):
"22:53 …making quick decisions about gunmen did cost innocent lives. I am sorry, I deeply regret that, but when you find yourself under threat in situations like that your judgment and your training are the only things you have to rely on.

23:12The words of a paratrooper who claimed he fired the first fatal shots that day. He is from Belfast and doesn’t want to be identified but we have interviewed him extensively and we have his full statement.

23:24I agree the relatives are justified in demanding the truth about their loved ones, and the innocent should be exonerated, which I believe is most if not all that were killed and injured that day."

The Tribunal asked for and received a copy of the statement there referred to but with the name of the soldier redacted.
The summons of 16^th September 1999 called for the unredacted copy of that statement.
The Daily Telegraph
On 20^th May 1999 the Daily Telegraph published two articles, written by Toby Harnden, then its Irish correspondent. The first one was headed "We want the Truth of Bloody Sunday to come out". The second was headed "Paras fear for lives over Bloody Sunday inquiry." We adopt the summary of the gist of those articles made by Counsel for the Tribunal.
The gist of the first article was that some former members of the Parachute Regiment had a burning desire to give evidence to the Inquiry so as to set the record straight and to contradict the conventional wisdom that what happened on Bloody Sunday was somewhere between a military misdemeanour and a war crime. However, unless their identities were protected, "their full accounts given to the Daily Telegraph" would not be given to the Inquiry. The Article then recounted some of the accounts of Soldiers X and Y (these are not the code letters used in Lord Widgery’s Inquiry). That part of X’s evidence that is referred to in the article is to the effect that he was in one of the first "pigs" i.e. Armoured Personnel Carriers (APCs), that he identified gunmen and bombers on the barricade and to the sides and could see the puff of smoke from their gunfire, and that weapons were removed by remnants of a mob from two bodies (it is not clear whether he saw the actual removal).
In the second article X is reported to have said that he told the Inquiry’s lawyers the bare minimum earlier this year. Both X and Y are reported as saying that if anonymity was not granted they would refuse to give evidence and if anonymity was refused they would omit the details of events.
In the first article Soldier Y, who is reported not to have given a statement to Lord Widgery, is said to have seen a sniper with a long-arm rifle, and said that one "idiot" fired 20 shots at a window and that others opened fire when they should not have done, but that there were legitimate targets as well. He said that some of the victims were innocent.
In the second article Soldier Y is reported as saying that, without anonymity, he would say that he could not recall what happened.
On 24^th August 1999 a letter was written purportedly on behalf of Mr. Harnden (but not in fact authorised by him) which said as follows:
"Soldiers X and Y only agreed to be interviewed on the strict understanding that I would not, under any circumstances, disclose their identities to anyone. Bearing that in mind, I destroyed all records of the meetings on the day that the article was published or the day after."
Prior to the hearing in September the Inquiry notified the Daily Telegraph that, in the light of the response that had been received to the summons, it would wish to consider, at the September hearing, whether or not it should order Mr. Harnden both to reveal the identity of X and Y and to tell the Inquiry what information X and Y had given him about the events of Bloody Sunday that was not contained in the Daily Telegraph articles.
Mr. Harnden produced a written statement and, at the hearing in September, gave evidence before us. From this it appears, and we find, that:

Mr. Harnden’s notes of the interviews with X and Y were destroyed soon after the publication of the article. This destruction was contrary to normal journalistic practice.
The reason why the notes were destroyed was because Mr. Harnden realised that he might be ordered to produce the notes either by the Tribunal or by some other body having authority to require him so to do.
The destroyed notes were substantial. They were a major part of at least one reporter’s notebook and possibly two or even three. They were destroyed by tearing out the relevant pages from the notebook or notebooks, tearing them into shreds and disposing of them. In addition Mr. Harnden recorded his conversations with X and Y on two tapes. These he intentionally recorded over so as to destroy the record of the conversations on the tape.
The information contained in the Daily Telegraph article is, thus, only a limited part of the information about Bloody Sunday given to Mr. Harnden by X and Y.
Mr. Harnden cannot, in his view, give evidence as to the information given to him by X and Y as to the events of Bloody Sunday, which is not contained in the two articles, without revealing or tending to reveal the identity of X and Y.

On Friday 1^st October 1999 Mr. Harnden was served with a witness summons requiring him to give oral evidence before us and the question for decision is whether we should set aside that summons or whether we should require Mr. Harnden to give us any and, if so, what evidence either about his sources or the information that they gave to him.
The Law
Section 10 of the Contempt of Court Act 1981 provides:
"No court may require a person to disclose … the source of information contained in a publication for which he is responsible, unless it is established to the satisfaction of the court that disclosure is necessary in the interests of justice…"
We have had helpful submissions from Mr. Andrew Caldecott QC for the BBC and ITN, Mr. Andrew Nicol QC for the Daily Telegraph, Mr. J.R. Rodgers for Ulster Television and from Counsel to the Tribunal. There is little dispute as to the approach to be adopted which we summarise as follows:

The protection of journalists’ confidential sources is, itself, a matter of high public importance. The law does not, however, enable the Press to protect their sources in all circumstances;
Journalistic confidence can be over-ridden only if, so far as presently relevant, it is necessary to do so in the interests of justice. As to that we respectfully adopt the words of the speech of Lord Bridge in X Limited v. Morgan-Grampian (Publishers) Limited 1991 1 A.C.1 at page 44:

"The judge’s task will always be to weigh in the scales the importance of enabling the ends of justice to be attained in the circumstances of the particular case on the one hand against the importance of protecting the source on the other hand. In this balancing exercise it is only if the judge is satisfied that disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege against disclosure that the threshold of necessity will be reached."

To the same effect is Lord Oliver at page 53:

"The court is not permitted to require the disclosure of a journalistic source unless it is satisfied that one or more of the four enumerated considerations (i.e. the interests of justice etc) are of such preponderating importance in the individual case that the ban on disclosure imposed by the opening words of the section really needs to be overridden."

Even if disclosure is necessary in the interests of justice, there remains a residual discretion (although, once it has been established that such disclosure is necessary, the room for the proper exercise of such discretion is limited).
Whether or not the important public interest in the anonymity of press sources is outweighed by the relevant countervailing public interests is a question of fact, albeit one involving a considerable degree of value judgment.
Many factors will be relevant on either side of the scale including (a) the fact that "the greater the legitimate public interest in the information which the source has given to the publisher or intended publisher, the greater will be the importance of protecting the source"; (b) the conduct of the journalist and of the source and (c) the risk of personal danger to the journalist or the source if disclosure is ordered.
The onus is on those who seek disclosure to show that it is necessary in the interests of justice. We should not do so unless, on the material available to us we are so satisfied.

The "interests of justice" in the present context are that the true facts of what happened on Bloody Sunday should be discovered by a fair, thorough and open public inquiry.
We have, also, taken into account the following considerations:

The potential "chilling effect" of making orders for the disclosure of sources, the effect of which may be to cause those sources to dry up;
Section 10 does not, however, provide that sources are not to be identified because of the chilling effect of doing so. Nor does Article 10 of the Convention as considered by the European Court of Human Rights in Goodwin v. UK 1996 22 EHRR 123. On the contrary it is because disclosure of sources has a potentially chilling effect that disclosure is not to be ordered "unless it is justified by an overriding requirement in the public interest (see Goodwin)" such as the interests of justice, which is one of the four competing considerations for which section 10 provides.

(iii) Mr. Caldecott’s submission that we should not confuse what is necessary with what is expedient and Mr. Nicol’s submission that we should not, in focussing on the particular needs of this Inquiry, lose sight of the general need to protect journalistic sources in the wider public interest.

The BBC

Mr. Caldecott submitted to us in April that the public interest element in Mr. Taylor’s source material could hardly be stronger; that such material formed part of a corpus of work by Mr. Taylor on Northern Ireland whose quality was dependent, in large measure, on the relationship of trust created between Mr. Taylor and his sources which was founded on his promise to those sources of anonymity. He contended that the effect of ordering Mr. Taylor to disclose his sources might be a permanent curtailment of his future investigative work in Northern Ireland. Further, such disclosure would put him at risk of reprisals.
The BBC source material, which remains unidentified, divides into Army sources and IRA sources. As to the Army sources, Mr. Lawton informed us by a letter of 28^th September that he was aware of the identities of four soldiers who were among Mr. Taylor’s sources. Three of them were clients of Mr. Lawton and they waived any duty of confidence owed to them by Mr. Taylor. Mr. Lawton also indicated that the fourth soldier had previously been prepared to give a similar waiver, but that this soldier was no longer one of his clients. In the course of the hearing on 29^th September, Mr. Glasgow confirmed what Mr. Lawton had said in his letter, and added that overnight he had obtained instructions from a fifth soldier who had spoken to Mr. Taylor, and that this soldier too released Mr. Taylor from any duty of confidence. We have now learned that the five soldiers concerned are General Ford, Lt. Col. Wilford, Lt. Col. Welsh, CSM 202 and Sergeant O. Of these five, it is CSM 202 who is no longer a client of Mr. Lawton.
There can be no question of the section 10 restriction applying in respect of the information derived from the four soldiers represented by Mr. Lawton who have clearly waived any duty of confidence owed to them by Mr. Taylor. Despite the fact that leading counsel for these soldiers confirmed this waiver before us, Mr. Taylor remained concerned about it and he asked the Tribunal, as a matter of indulgence, not to order him to reveal which part of the material was communicated to him by each of the soldiers. Rather, he suggested, we should ask the soldiers who gave the waiver to do so.
We have found it possible to identify parts of the transcripts of the transmitted and untransmitted material as being statements or interviews made or given by Colonel Wilford, CSM 202 and Sergeant O. This only takes the matter so far. There may be statements recorded in the notebooks from these three witnesses that are not apparent as being theirs. Mr. Taylor may have further information in his head which was derived from them and which is not reflected in the notebooks. So the expedient of asking these witnesses what statements they made or information they gave to Mr. Taylor may not necessarily reveal all that they told him.
The identities of the persons who told Mr. Taylor that the Army had a secret plan to teach the Derry hooligans a lesson, and of the Royal Green Jackets Officer who is said to have telephoned Brigadier MacLellan to say that it was "mad" to bring the Paras in are of great importance to the Inquiry.
As to the former the relevant passage and transcript reads:
"But what the marchers did not know was that the Army also had a secret plan, ordered at the highest level by General Robert Ford – again acting on political instructions. (Pause:) Derry’s hooligans were to be taught a lesson, and the Paras had been imported to do the teaching."

One of the central issues for the Inquiry to resolve is whether there was any sort of plan from on high to teach the hooligans a lesson and, if so, what sort of lesson. For this purpose it is highly material to know who told Mr. Taylor that there was such a plan.
As to the latter, the use of 1 Para has been controversial since 1972. One of the issues, which the Tribunal has to decide, is why such a battalion was used for arresting civilian hooligans. It has to decide that issue in the context of allegations that have been made that the Parachute Battalion was chosen precisely because there was some sort of plan to teach the Derry hooligans a lesson (including killing them if occasion demanded) or to engage with the IRA. Evidence that an Officer from one of the resident battalions telephoned Brigadier MacLellan to tell him that it was "mad" to bring the Paras in is plainly material for these purposes.
In relation to the IRA, both the Official and Provisional wings, the Inquiry is concerned to discover (a) what their plans and orders were and (b) what they did on the day. On the one hand it has been alleged that both wings of the IRA had agreed to let the march go off peacefully, and to withdraw their weapons in whole or in part from the Bogside, and that the IRA only intervened late in the day and ineffectually after the Army had opened fire. On the other hand there are documents which, if accurate, suggest that the Army had intelligence reports shortly before Bloody Sunday to the effect that the IRA would use the march as cover from which to fire upon the soldiers. In those circumstances it is highly important to know the identity of those who told Mr. Taylor what the orders for the Official and Provisional IRA were and what they had or had not agreed to do.
Equally controversial is the question whether or not, whatever the IRA orders were, members of the IRA did in fact fire on the Army and for that purpose the identity of the informant(s) who told Mr. Taylor that there was an Official gunman above the Bogside around Bishop Street firing shots is important.

ITN
The source material that remains unrevealed is as follows:

The identity of ITN Soldier A in the 29^th January 1997 report;
The identity of ITN Soldier B in the report of 18^th March 1997;
The identity of ITN Soldiers C, E and D in the report of 16^th May 1997; and
The IRA source in the report of 12^th January 1998.

As to (iv), in the light of the explanation given to the Tribunal as to the nature of this source, we need take the matter no further.

Mr. Andrew Caldecott, for ITN, submitted to us in September that ITN should not be required to give details of the identity of any of Soldiers A-E. The undertaking given by ITN as to confidentiality was not given lightly. It was only given because without it the soldiers, who were seeking to have what they regarded as a wrong put right, were not prepared to give information, which was of the highest public importance (because of the doubt it cast on the conclusions and completeness of Lord Widgery’s Inquiry). But for such assurances, the information would, in all probability, never have been revealed. He submitted that orders should not be made which would be liable to inhibit the free flow of information as to the misconduct of the Government or its agents. He contrasted the present case with reported cases, where disclosure had been ordered in which publication by the journalist of the information in question had served no public interest at all. He invited the Tribunal not to ignore the Press’s wider role as a public watchdog. He, also, relied on two dicta from X Limited. The first is in the speech of Lord Bridge at page 44:
"Conversely, if it appears that the information was obtained illegally, this will diminish the importance of protecting the source unless, of course, this factor is counterbalanced by a clear public interest in the publication of the information, as in the classic case where the source has acted for the purpose of exposing iniquity." (emphasis added)

And from Lord Templeman in the same case at page 49:

"This is not absolute immunity for a journalist to conceal his sources. Such an absolute immunity would enable the source or the journalist or both to make use of any untrue, misleading or confidential information with impunity. This means that the journalist is in a dilemma. He wishes to encourage disclosure but he cannot promise absolute immunity to his source unless the information reveals crime or some other iniquity." (emphasis added)

He submitted that on the facts of this case the undertakings should, in accordance with the above dicta, be treated as absolute. We do not, however, think that Lord Bridge, who was careful to refer to the difficult balancing exercise that has to be performed and to make plain that the illustrations that he gave as to relevant considerations must not be regarded as a code, was intending to lay down the proposition that once it was shown that the information revealed crime or some other iniquity, the restriction on disclosure was absolute. Nor, despite the wording used, do we think that Lord Templeman can have meant to enunciate such a proposition, which is not consistent with section 10 of the Act.
Mr. Caldecott’s submissions, on behalf of both BBC and ITN, reflect the fact that the importance of the information increases not only the importance of protecting the source but also the importance of the Tribunal knowing the identity of that source. Without that knowledge the utility of the information is drastically reduced. He, also, relied upon the risks to the ITN soldier sources (of reprisals by paramilitaries or their own comrades) that was involved in the revelation of sources; and the risk to the journalists if they were thought to have revealed such sources. Further, he questioned why it was necessary to obtain disclosure of this information from ITN, as opposed to elsewhere.
The importance of the ITN evidence
The significance of the evidence in question is as follows:

Soldier A:
One of the many issues to be resolved in the present Inquiry is whether or not any of those who died or were wounded were shot from the City Walls and, if so, in what circumstances. Lord Widgery did not (apparently) consider this issue and it is a matter of acute controversy. It cannot be disputed that there was some shooting from the Walls: but one of the central current allegations is that there was shooting from the Walls at innocent civilians including, but not necessarily limited to, three of those who died at the barricade between the Rossville Flats and Glenfada Park. To this issue the evidence of Soldier A is critical.
Soldier B:
Another of the many issues is whether the army was guilty of any unjustifiable shootings: particularly in Glenfada Park or to the south of Block 2 – the most forward positions to which soldiers went. It is highly important for the tribunal to know whether any, and if so which, of the soldiers were guilty of unfortunate actions or shameful and disgraceful acts or unjustified shootings.
Soldier C:
Whether or not soldiers were fired on and, if so, to what extent, is another matter of acute controversy and has been so since 1972. The evidence of a soldier who says that he was not aware of paratroopers being fired upon at any stage, that they fired from the hip in one area (i.e. in an uncontrolled manner) and that a big wrong was done, is obviously of great importance.
Soldier D:

The tenor of Soldier D’s remarks is that there was nothing for which the Government should apologise.

(v)Soldier E:

One of the allegations that have been made is that, whatever the initial firing upon the soldiers, they grossly overreacted. Again evidence from a soldier that they did so is of very great importance.

Conclusion on BBC/ITN

We have carefully considered all the submissions that have been made to us in the light of the importance of the evidence to which we have referred above.
In relation to the BBC we have come to the conclusion that the identity of the sources referred to in paragraph 39 above (with the exception of "Denis") is likely to be of such predominating importance as to make it necessary in the interest of justice that it should be revealed to us, unless the Tribunal is able to obtain sufficient evidence from other sources as to what the IRA orders were and as to the firing that is said to have taken place at Bishop Street.
As to ITN we have come to the conclusion in respect of Soldiers A, B, C and E, but not D (the content of whose evidence appears to be wholly unspecific) that the identity of the informants is of such predominating importance as to make it necessary in the interests of justice that it should be revealed to us by ITN if it cannot be obtained by other means.
The reasons why we have reached that view are as follows:

We have to weigh the public interest in non-disclosure of journalistic sources and the public interest in the course of justice in these proceedings. In so doing we need to take into account "the relative public importance of the interests of justice in the particular case": per Lord Oliver in X Limited at page 53.
In the present case the public importance of the interests of justice in the working of this Inquiry is very high indeed. Our inquiry was established by the affirmative resolution of both Houses of Parliament as a matter of urgent public importance. The task imposed upon us by Parliament includes that of taking into account "any new information relating to the events of the day".
In those circumstances we take the view that it is necessary in the interests of justice to know the identity of those informants who gave the information to the BBC and ITN: particularly when, in the case of ITN, that information formed part of the material upon which the Government was asked, and agreed, to establish an inquiry in the first place.
Insofar as the sources are soldiers, they will all, in the light of our ruling, enjoy anonymity so that, by ordering the disclosure of sources, we would not be requiring anything more than that the identity of the soldiers in question should be given to us as it was to ITN. That identity will then be protected upon the same basis and subject to the same conditions as those that apply to all other soldiers.
We have not ignored the potential effect that an order might have on Mr. Taylor's ability to conduct investigative journalism in Northern Ireland or the risk to himself if he is ordered to make and does make such a disclosure. We do not, however, regard either of those as an absolute bar to making such an order. We have to decide, in relation to the present case, whether the nature of the information is such that the public interest in the course of justice in these proceedings is so great as to outweigh those considerations. In our view it is. In reaching this conclusion we pay regard to the exceptional nature of these proceedings and the exceptional public interest in their outcome.

We are not, however, satisfied that we should immediately make an order for disclosure.

As to Mr. Taylor's Army sources, to whom we refer in paragraph 39, we regard it as possible (but no higher) that the identity of the relevant soldiers and their full account of what happened may be revealed in the course of Eversheds taking statements from the military witnesses. As to Mr. Taylor's IRA sources, there are obvious difficulties in obtaining direct evidence from either wing of the IRA as to what the relevant orders were and as to whether an Official was shooting (and at what) around Bishop Street. Despite this we believe that there is some prospect of obtaining sufficient reliable evidence as to what the orders - for both wings -were and as to what happened in Bishop Street as to make it unnecessary to override journalistic confidence. In particular we do not regard it as wholly illusory to suppose that witnesses connected with the IRA will provide information to the Inquiry. We may well be proved wrong on that, but we are prepared to wait and see. Further we wish to take a statement from Mr. Taylor, which deals, amongst other things, with the content of his notebooks and we think it appropriate to defer making any order requiring the disclosure of sources, to which section 10 applies, until that exercise has been performed.
We wish, however, to make it plain that, in the case of those witnesses who have clearly waived any right of confidence that they may have, there is no justification for Mr. Taylor declining to reveal what statements they made and what information they gave to him. If Eversheds or the Inquiry staff are able, by questioning those witnesses, satisfactorily to identify what statements they made and what information they gave to Mr. Taylor, all well and good. But if they are not, or there is doubt as to whether they have been able to do so, the Tribunal will expect Mr. Taylor to identify the statements and the information, regardless of whether or not the Tribunal makes any order for the disclosure of sources to which section 10 of the 1981 Act applies.
The soldiers whose waiver of any right of confidence is clear are General Ford, Colonel Wilford, and Sergeant O, and, also, Lt. Col. Welsh. The Tribunal will contact CSM 202’s legal representatives to see whether the same position applies in respect of him.
Lastly, in relation to the redacted statement of an Officer, to which we refer in paragraph 40 above, there is reason to suppose that the Officer in question is identifiable to the Tribunal by reason of the content of his statement and we shall endeavour to see whether that identification can be achieved before making any order.
As to the ITN sources, although Eversheds our solicitors have not yet discovered the evidence of any soldier, which conforms to the evidence of soldiers A-E, the exercise of taking statements from military witnesses, is not complete. It may be, therefore, particularly in the light of our decision on anonymity, that each of A - E will come forward and identify themselves. In the case of A and C it is possible that Eversheds will be able, themselves, to identify the soldier in question. In those circumstances we have not been satisfied that it is necessary to order discovery of the name now. It will, however, in our opinion, be necessary to do so if information as to the identity of the soldiers in question cannot be obtained by either of these routes.
Accordingly, we shall defer making any order in respect of the soldier sources until after 30^th November (by which date the body of military evidence should be in hand) when we shall revert to the issue. We shall defer making any order in respect of Mr. Taylor's IRA sources until we are in a position to take a view as to the extent to which, if at all, satisfactory evidence may be forthcoming as to the plans and orders of the IRA and as to what happened in Bishop Street.
We request ITN, in the meantime, to contact their soldier sources (including D) in order to inform them of its application and of this ruling and to invite them either to release ITN from its obligation of confidence (at least so far as providing details of their identity to this Tribunal) or at any event to contact the Tribunal in order to give evidence – anonymously, in accordance with the Tribunal’s ruling.
We make a similar request to the BBC and Mr. Taylor in respect of their soldier and IRA sources.
If, in the case of the sources, it turns out that they are legally represented it will, of course, be possible for the BBC, Mr. Taylor and ITN to invite those sources to cause their legal representatives to communicate with the Tribunal in order to avoid any dispute as to whether they have truly waived any obligation of confidence.
We shall take into account whether such requests are made and the response thereto in finally deciding whether to order identification of sources.
UTV
The contents of the redacted statement provided by Ulster Television are of critical importance in at least the following respects:

In paragraph 3 the soldier says of his orders:
"We were not to impede the civil rights march but let them clear the area of operation to allow us into Rossville/Glenfada Flats. We were also to seek out and engage the IRA (ops) in the Rossville Flats and to take them out and to hand over arrests to Charlie Company who would secure Chamberlain Street. To hold secure Rossville/Glenfada areas and prevent any IRA groups coming in and engaging within our operational area until the local RUC and troops could take over from us."

One of the major issues for us to resolve is whether the operation carried out by 1 Para on 30^th January 1972 was an arrest operation, properly so called, in the course of which troops were fired on, or whether – as has been alleged – it was an attempt to draw out the IRA and engage with them. The soldier's evidence, if true, appears to be direct evidence of the latter.
In paragraph 4 the soldier says that after shots were fired at soldiers carrying some barbed wire near the Presbyterian Church:
"The operational plan was changed, the original plan was to conduct the arrest operation on foot, APC (pigs) were now to be employed instead."

This evidence, if true, suggests that the original plan did not involve the use of APCs at all, whereas the evidence given to Lord Widgery was to the effect that the reference in the operational order to the operation taking place on foot was not inconsistent with the use of APCs to enter the Bogside.
In paragraph 6 the soldier describes being in an APC which turned left into the car park of the Rossville Flats when:

"I heard a ping hitting against the rear door of our APC, I shouted "Incoming" to note that we were fired at, but by this time the forward APC had stopped and debussed and making arrests. We stopped near the corner of Chamberlain Street, I debussed to the right of my APC and saw a blast or nail bomb explode forward and right of me, which blinded me for a moment. I turned my head away for a few seconds to clear my vision and turned back to take up aim at the man, I believed responsible, he was running away from me towards the exit between the left and centre flats where the crowd was escaping. He stopped, turned, just passed the centre of the car park, bent down and struck an object against the ground and threw it. I squeezed the trigger of my rifle but the safety catch was on, I flicked it off with my right thumb, and fired one shot, catching him as he was about to run on the rear right shoulder. He was thrown to the left, I ran forward and touched his neck and believed he was dead. Suddenly pistol shots were fired from the alleyway between the left and centre flats. I ran and took cover at the end of the flat close to Chamberlain Street, I took aim to take him out when shots came up from Chamberlain Street towards him. I shouted at my Platoon Sergeant "Friendly firing coming", pointing at Chamberlain Street. He ran back to the APC to radio back to check firing from the street. At the same time, I noticed a Priest crawling towards the man I had shot shouting back at the man with the pistol and covering his head when the friendly fire was coming in."

This evidence, if true, suggests:

that this soldier shot Jack Duddy, who was the victim tended by Father Daly, now Bishop Daly, in the car park of the Rossville Flats and who was shot in the right shoulder. Lord Widgery was not able to find who killed Jack Duddy but believed him to be innocent of any wrong doing;
Jack Duddy was shot because he was or was believed to be the man responsible for throwing a nail bomb and was, or appeared to be, in the act of throwing some object (possibly a nail bomb) which he had struck against the ground;
after pistol shots were fired from the alleyway from the left and centre flats (it is not clear to which blocks he refers), shots came from Chamberlain Street from other Army units. Lord Widgery heard no evidence of fire from the Army coming up Chamberlain Street in the direction of the Rossville Street car park;
Father Daly shouted back at a man with a pistol (who would have been to the south of him). Father Daly gave evidence to Lord Widgery of a man with a pistol, to the north of him, at the southwestern gable end of Chamberlain Street.

The soldier goes on in paragraph 6 to say as follows:

"I decided to go forward to engage the gunmen when shots were fired to the right of me, I looked to see two of my comrades engaging targets somewhere high over Rossville Flats. I carried on and entered the alleyway between the left and centre flats, into Joseph Place, to my right I noticed two bodys (sic) surrounded by people, they took cover against the wall when they seen my mate and I, the body nearest to us had a pool of blood around his head and the other body was lying near the corner of the flats close to Rossville Street. I realised that my mate and I had gone further forward than anyone else and decide to return back to the car park in Rossville Flats. Going back we heard high velocity gun fire behind us, we entered the car park when C.O. Support Company was ordering everyone to re-group around our APC and also ordering "Do not return fire unless you can clearly see your target", but we still heard firing coming from Glenfada Flats. It was then I heard the Company Sergeant Major shouting at the C.O. to get over there to see what was going on, which he did. Five minutes later all firing had stopped.

My mate who was with me, said to me that they were firing from Derrys wall. I said to him I think they were firing up Rossville Street from Little James Street. We both knew then something had badly gone wrong. We were then ordered to mount up and left the area."

Whether or not people were wrongly killed by the Army firing from the City Walls, is, again, one of the principal issues in the Inquiry. Further there was no evidence before Lord Widgery, so far as we are aware, that soldiers came from the car park of the Rossville Flats to the south of Block 2.

This soldier witness is, therefore, on his account, someone who fired live rounds. In accordance with our ruling he will be entitled to anonymity. On his evidence he was in APC 2, the "Pig" in which Sergeant O travelled down Rossville Street, and which drew up at the entrance to the Rossville Flats car park. He says in a postscript to his statement that the evidence in that statement is "as close as I can remember that I give to the Widgery". But the only soldiers, who, in their evidence to Lord Widgery, admitted firing live rounds and who, on that evidence, could have been responsible for the death of Jack Duddy are Soldiers O, Q, R, S and V. The Inquiry was told by UTV in correspondence that the soldier in question claimed to be Widgery Soldier Q. Soldier O was in command of the APC (reference is made to "the commander of our APC" in paragraph 5 of the statement). So he can be ruled out. The only other soldiers who, according to their evidence to Lord Widgery, fired live rounds in this sector are Lieutenant N, who was in the first APC and who fired 3 shots in the air and one at somebody at the south of Chamberlain Street, whom he hit in the thigh, and T who is dead. That only leaves, as soldiers in Pig 2, Soldiers P, R, and U. P did not, on his evidence to Lord Widgery, fire in this sector. Each of P, R and U are soldiers represented by Mr. Anthony Lawton of the Treasury Solicitor’s Department. Each has confirmed through their Leading Counsel, Mr. Edwin Glasgow QC, that they are not the person who gave the Ulster TV statement. Q and V have also given a similar confirmation.
It is apparent from the above that the unidentified soldier is, probably, either (1) someone who fired live rounds but concealed that fact from Lord Widgery (and the Royal Military Police) or (2) one of those who gave instructions that they were not the maker of the statement to Mr. Glasgow, or (3) someone who for some reason is making up a story.
We were told by Mr. Rodgers, who appeared for UTV, that Mr. Morrison, UTV’s Head of News, who gave the soldier in question the undertaking of confidentiality "had received at least one serious threat which he has reasonably understood to be a threat to his life". Mr. Morrison had the opportunity of elaborating on that statement, either by providing a witness statement, or by giving evidence orally, but this opportunity was not taken up. In those circumstances we are short on any details of this incident. Mr. Rodgers also told us that the soldier in question "may not be who he says he is" and "may have an unstable personality and a drink problem".
We regard knowledge of the identity of this soldier as indispensable to our task. The content of his evidence is of critical importance upon essential issues. His identity is equally critical for two reasons. First, it will tell us either that, contrary to his statement, he is a previously unidentified firer or that what he said to Lord Widgery was false or that he is some sort of storyteller, in which case the reason for him doing so is highly material. Secondly unless we know who he is, neither the interested parties nor we can assess his evidence by questioning him or others on its content.
We are quite satisfied that the importance of knowing his identity is of such weight and preponderance that we should decline, as we do, to set aside the summons. We see no real prospect of discovering his true identity otherwise than by requiring UTV to provide it to us. We have taken into account as a factor against reaching this conclusion the rather limited information about the threat to Mr. Morrison. But, even doing so, we remain wholly satisfied that the identity of the soldier should be revealed. In our view there is a compelling justification for making the order notwithstanding such risk as there may be to the journalist in question. That risk (which is to some extent mitigated by the fact that, if the soldier is identified to us, he will know that his name is known to the authorities and that he can, therefore, be traced) should be addressed by Mr. Morrison placing the full facts of the incident in the hands of the police.
Accordingly, we decline to set aside the witness summons and we require the production to us of the unredacted document. The name will, of course, remain anonymous in accordance with and subject to the terms of our ruling on anonymity in respect of those soldiers who fired live rounds.
The Daily Telegraph and Toby Harnden
Discovering the identity of X and Y and the full contents of the evidence they had to give ("the full accounts given to the Daily Telegraph") are of great importance to this Inquiry. X is one of those who fired. Y saw a sniper and one "idiot" who fired 20 rounds and others who opened fire when they should not have done. That "idiot" may well be Soldier H, who, on his account to Lord Widgery, fired 19 bullets at a single target. Lord Widgery did not accept that those 19 bullets were fired at a single target. Sir Allan Green, who appears for Soldier H, urged us to order Mr. Harnden to disclose the identity of X. According to Mr. Harnden it is not, however, possible for him to testify as to the full content of the evidence given to him without, also, revealing or tending to reveal the identity of X and Y. We must, therefore, consider whether or not to order disclosure of the identities of X and Y together with the additional information about Bloody Sunday given by them to Mr. Harnden and known only to him. If Mr. Harnden is right, ordering disclosure of the information alone is not an option.
There are certain clues in the two articles as to who X and Y may be. X is said to have been in one of the first "pigs", to have fired shots, and to have spoken to Eversheds by 20^th May 1999. He gave evidence to Lord Widgery. Y drove a pig; was a non-firer; did not give evidence to Lord Widgery and lives in Northern Ireland. It may be possible to identify one or other of these two on the basis of this information: but that would, itself, assume that X told sufficient of the truth to Lord Widgery and to Eversheds as to make it possible to identify him, and that Y can be traced and tells sufficient of the truth to Eversheds as to make it possible to identify him also. Since the burden of the article is that both were, in certain circumstances, prepared not to tell the whole truth, and that X has already been economical with it, any such assumption may well be misplaced. Further, even if their identity is discovered, and even if they tell Eversheds what they claim to be the full story, it will not be possible to know whether what they say as to the events of Bloody Sunday is the full account as given to the Daily Telegraph or some half truth. The answer to that question cannot be known unless the Tribunal has the full account of what they said to that newspaper.
In those circumstances, we are satisfied that it is necessary in the interests of justice that Mr. Harnden should give evidence to us as to the identity of X and Y (who will be anonymous in accordance with our rulings on anonymity) and as to the full account given to him by X and Y of what they did on 30^th January 1972, if accurate information as to their identity cannot be obtained by other means.
But, again, as in the case of ITN, we are not satisfied that we should immediately make an order requiring Mr. Harnden to identify his sources. It is possible that Eversheds and the Inquiry's staff will be able to identify Soldiers X and Y and that, in the light of our ruling on anonymity of soldiers in the course of this Inquiry, X and Y will be prepared to identify themselves as the soldiers referred to in the Daily Telegraph articles, to tell their full story, and to release Mr. Harnden from any obligation of confidence. If the Tribunal learns the true identity of X and Y (who, as we have said, will, because they are soldiers, remain anonymous to the public) and if their evidence, anonymised for the purposes of the Inquiry, can be publicly identified as being the evidence of X and Y and is both full and frank, the revelation of the full information which they have given to Mr. Harnden may not involve any breach of confidentiality. Indeed Mr. Harnden may be able to confirm that nothing of significance that they told him is omitted from their statements to the Tribunal. We are by no means confident that this approach will resolve the dilemma, not least because Mr. Harnden told us that he could give no further information as to what he was told that did not tend to disclose the identity of the two sources. In this respect, however, we have noticed that at page 15 of the bundle of working drafts provided by the Daily Telegraph on Friday 1^st October 1999 there is a note which reads:
"I have kept this as tight as possible but there’s plenty more if it is wanted.th"

We do not find this observation, taken at face value, easy to reconcile with Mr. Harnden’s evidence that:

"When I was writing the article I was very careful to give as much information about what the soldiers said had happened on Bloody Sunday as was possible … without stepping over the line which would have meant that their identities could have been revealed"

We have not, however, heard any explanation that Mr. Harnden may have to give as to this apparent discrepancy, and we shall suspend judgment upon it until we have heard what that explanation might be.
Accordingly, as in the case of ITN, we shall defer our decision until after 30^th November 1999, in order to see whether or not X and Y are prepared, whilst remaining anonymous before the Inquiry under different pseudonyms, to identify themselves as the X and Y referred to in the Daily Telegraph, to give a full account of what happened, so far as they are aware, on 30^th January 1972, and to release Mr. Harnden from any obligation he may regard himself as having not to reveal the content of what they told him. If, of course, it becomes clear before 30^th November that X and Y are so prepared we shall revert at an earlier date to the question of what evidence Mr. Harnden should be required to give.
The course that we are taking cannot be described as either convenient or expedient: but, as we remind ourselves, the test is 'necessity' not 'convenience'. We bear in mind, also that the general tenor of the article was that the soldiers in question desired the full truth to come out and that they were inhibited from telling it to the Inquiry because of our ruling on anonymity. That inhibition no longer exists and we propose to see whether its removal generates a change of mind.
Mr. Harnden’s notes and tapes
We now return to the subject of the destruction by Mr. Harnden of his notes and the over-recording of his audiotapes. At the recent hearing we expressed our grave concern at the steps that Mr. Harnden had taken in this respect. We indicated that we would consider reporting the matter to the appropriate authorities and that that might include reporting the matter to those responsible for the prosecution of criminal offences. We have duly considered the question and we have decided that we should refer the matter to the Director of Public Prosecutions for Northern Ireland, in order that he may consider whether any criminal offence has been committed and if so, what action he should take. In the light of that decision it is not appropriate for us to say anything further in this ruling.
Procedure in respect of allegations
Lastly we deal with the procedure that is to be followed if the interested parties intend to make allegations, in the course of the proceedings, against witnesses to the Inquiry. By "allegations" we mean allegations of misconduct, improper behaviour, irresponsibility or incompetence. The procedure that we propose to lay down is this:

If any of the interested parties seek to make an allegation against any of the Inquiry’s witnesses they must give details to the Inquiry of the allegation that they intend to make.
The Inquiry will give notice to the interested parties and to the relevant witness or witnesses of any allegations of which it is informed, unless any such allegation is clearly without sensible foundation, or is not within the Tribunal’s remit, or there is some other sound reason why it should not be entertained.
The Inquiry may require further information as to the nature of the allegation, or the evidence in support of it, or the basis upon which it is made before notifying the interested parties of it.
None of the interested parties will be allowed, without the permission of the Tribunal, which is unlikely to be given save for very good reason, to pursue an allegation against any of the witnesses unless it has been the subject of a notice given to the Inquiry in good time, as to which see paragraph (v) below. Nor will they be allowed to pursue an allegation, which the Inquiry has declined to notify to the interested parties on one of the grounds set out in (ii) above.
Any allegations that are to be made must be notified to the Inquiry so soon as is reasonably practicable and, in any event, in such time as will enable the Inquiry to give notice to the witness concerned at least 3 weeks before the witness is first due to give evidence. The Tribunal appreciates that it will be necessary to have a rolling witness programme so that the interested parties know when any given witness or category of witnesses is first due to give evidence. The Tribunal appreciates that the making of allegations is something that requires careful thought and judgment; that there is much material to consider; and that it may be inappropriate to make an allegation without considering more material than that which prima facie appear to justify the allegation in question. That said, the Tribunal is not prepared to countenance a situation where allegations are made that could and should appropriately have been made at an earlier stage. It will be for those making allegations to satisfy the Tribunal that they were made at the earliest practicable moment. The Tribunal believes that it can trust in the good sense and judgment of Counsel for the interested parties and their instructing solicitors to ensure that any allegations that are to be made are, indeed, made as soon as is reasonably practicable, having regard to the considerations outlined above, and in accordance with the overall objective of this ruling which is that of preventing ambush and surprise.
It is not necessary for the interested parties to adopt for themselves the issues referred to in Counsel’s Report No 1, which identifies, with different degrees of specificity, a number of issues that are likely to arise in the course of the Inquiry. But it is necessary for them to use the procedure laid down above if they intend to make a positive case that, for instance, a particular lettered or numbered soldier shot a particular victim. Similarly if any of the interested parties intends, for instance, to make a positive case that a particular witness was shot whilst throwing a nail bomb, they should make an allegation to that effect.
It may be that allegations are sought to be made against witnesses whom the Inquiry had not intended to call. If that is so the party seeking to make the allegation will be expected to have asked that the witness should be called, and to have given notice of the allegation as the reason, or one of the reasons, for him or her being called.
If allegations are to be made against persons who are deceased they must be made as soon as is reasonably practicable and in any event in sufficient time to enable the witnesses who have relevant evidence to give in relation to that deceased to give evidence in the knowledge of that allegation. In practice that means no later than 3 weeks before the first witness whose evidence relates to the death of that deceased. What we have said in (v) above applies, of course, in this context.
This procedure is not intended to be limited to allegations of misconduct on the day. If the interested parties intend to make a positive case in respect of, for instance, the planning for the day e.g. that there was a deliberate plan to engage the IRA, they should make use of this procedure.
The fact that the Inquiry notifies any person of an allegation does not imply any view by the Inquiry as to the strength or validity of that allegation. Nor does it imply that the Tribunal or its Counsel will adopt any particular position in respect of it.
Any interested party, who has made an allegation, is at liberty to withdraw it, in whole or in part, at any time. This should be done by notice in writing to the Inquiry. The Inquiry will give notice of the withdrawal of any allegation.
The Tribunal will make any alterations to this procedure that prove to be necessary or desirable in order to secure the overall objective mentioned in (v) above. It will, also, be the arbiter in the event of any dispute in relation to the procedure.

Lord Saville

Sir Edward Somers

Mr. William Hoyt

12^th October 1999

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