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Rulings & Judgments

Rulings and Observations of the Tribunal on the
Matters raised at the Preliminary Hearing on
20th and 21st July 1998


On 20th and 21st July we held a preliminary hearing in this Inquiry in order to deal with a number of points that had arisen since the Tribunal made its Opening Statement at the beginning of April. On some of these points we wanted to hear the views of those interested in order to be properly informed before making rulings in the future. On other points we heard submissions on matters which call for a ruling now. In both cases, in accordance with what we said in our Opening Statement, it seemed to us that this was an exercise that should be carried out in public and this is what we have done.

The first matter discussed was the level of legal representation at the Inquiry for the families of those who died on Bloody Sunday and for those that were wounded, who had instructed the Belfast solicitors Madden & Finucane to act on their behalf. These comprise nearly all who lost family members or who were wounded on Bloody Sunday.

The Tribunal had expressed its provisional view that the interests of this group could be properly protected by engaging the services of one Leading Counsel and two juniors. This was not a view shared by this group, who requested that they be represented at the Inquiry by five Leading Counsel and five juniors.

From correspondence with Madden & Finucane, it appeared to the Tribunal that the principal reason for requesting this level of representation was to enable the families and the wounded to prepare and present a case to the tribunal in an adversarial fashion, that is to say as though they were engaged in a piece of ordinary litigation with opposing parties, in this case the soldiers, the Ministry of Defence and other departments of the Government.

The Tribunal could not and cannot accept that this is the correct basis on which to proceed. In his Royal Commission Report on Tribunals of Inquiry Lord Justice Salmon said: -

“28. Normally persons cannot be brought before a tribunal and questioned save in civil or criminal proceedings. Such proceedings are hedged around by long standing and effective safeguards to protect the individual. The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out; or if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed. We are satisfied that this would be difficult if not impossible without public investigation by an inquisitorial Tribunal possessing the powers conferred by the Act of 1921. Such a Tribunal is appointed by Parliament to inquire and report. 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.”

Similar views were expressed by Professor Walsh in his paper entitled The Bloody Sunday Tribunal of Inquiry – A Resounding Defeat for truth, Justice and the Rule of Law.

Whether or not Professor Walsh’s criticisms of the Widgery Inquiry are justified is not a matter with which we are presently concerned, but we believe that the views he expressed on the proper nature and function of an Inquiry like the present Inquiry are an accurate statement of the legal position. Professor Walsh said this: -

“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.”

In our Opening Statement we expressed similar views.

In these circumstances we thought it right at the outset of this preliminary hearing to raise this point with Mr Treacy, Counsel appearing on behalf of the group of families and the wounded seeking representation at the Inquiry. Mr Treacy immediately made clear on behalf of his clients that he accepted that the proper approach to an Inquiry of the present kind was as we have stated and that his application for the level of legal representation sought was not based on treating the Inquiry as an adversarial contest, but was founded on quite different grounds.

The provisional view expressed by the Tribunal was itself based on an objective assessment of the amount of work that Counsel would have to do in order to be able properly to protect the interests of the families and the wounded at the Inquiry, bearing in mind that it was the responsibility of the Tribunal to collect, analyse and present all the relevant material, as well as to carry the main burden of cross-examination at the oral hearings; and also bearing in mind that we would give all concerned a reasonable period to consider the material collected before those hearings began. However, Mr Treacy persuaded us that there were other factors to take into account, and having considered these we have concluded that the interests of justice do justify the level of counsel representation sought by the families and the wounded. Our reasons for doing so are as follows.

In the first place, Mr Treacy drew our attention to the fact that at the Widgery Inquiry the level of representation for the families and the wounded was about the same as that provisionally suggested by the present tribunal. He submitted, and we accept, that his clients genuinely believe that this level of representation put them at a grave disadvantage at that Inquiry and that similarly to limit their representation at the present Inquiry would only repeat what they consider was an injustice done to them; leading them to view the present Inquiry with distrust.

Having listened to Mr Treacy it seems to us that whether or not these beliefs are objectively justifiable is really neither here nor there. The important fact is that they undoubtedly exist. Thus although we remain of the view that because of the very different way we propose to conduct this Inquiry the families and the wounded would not in fact be disadvantaged by the level of legal representation we suggested, it seems to us that in order that justice should not only be done but manifestly be seen to be done, the point made by Mr Treacy is a good one.

In the second place, there is another consideration, which supports Mr Treacy’s submission. Although the families and the wounded have made common cause, although from a lawyer’s point of view their interests seem identical or virtually identical, and although from our present state of knowledge there seems to be no conflict or potential conflict of interest that would call for separate representation, we accept that their situation cannot simply be viewed from a narrow legalistic point of view. Looked at from a rather wider and perhaps more human perspective, the fact of the matter is that each family and each of the wounded has a private and personal interest, which must be borne in mind, notwithstanding it leads them to make common cause with each other. That private and personal interest could be properly served if, instead of a single team of Counsel acting for all the families and the wounded, the representation was divided as Mr Treacy suggested, so that comparatively small groups of the families and the wounded had their own leading and junior counsel responsible for their representation at the Inquiry. Once again it seems to us that this would help to enable justice to be seen to be done.

Mr Treacy readily accepted that the Tribunal could not allow this level of representation to lead to repetitive cross-examination by successive counsel. That would serve no useful purpose and would simply waste time and money. The same applies, of course, to submissions. Furthermore, although we shall recommend that the reasonable costs of engaging the services of five leading counsel and five juniors be met from public funds, we have an obvious duty to ensure that such costs are indeed reasonable. Of course all counsel will have to acquaint themselves with the general picture, as well as the particular circumstances of the families and the wounded for whom they have a special responsibility, but we consider that much can and should be done to avoid duplication of effort among them. We suggest that it would be a good idea to keep in close contact with the Solicitor to the Inquiry, so as to seek to avoid the risk of incurring expenditure, which might be regarded as not reasonably necessary.

The Tribunal would be assisted by being informed as soon as possible of the names of the counsel involved and of details of the division of their responsibilities among the families and the wounded.

Before leaving this question we should mention a further submission put forward by Mr Treacy, which was to the effect that each of the families and each of the wounded was entitled as a matter of legal right to separate representation at the Inquiry; so there could be no valid objection to the lesser amount of representation sought.

We were not persuaded by this submission.

The object of providing legal representation is to ensure that as a matter of justice and fairness the interests of the persons concerned are properly protected at an Inquiry. It follows in the present case that each of the families and of each of the wounded would be entitled to separate representation if it could be shown that such separate representation was required in order to ensure that their respective interests were properly protected. If their interests could be properly protected by, for example, some form of joint legal representation, then the basis for separate legal representation simply disappears, for neither justice nor fairness would require it.

For this reason it seems to us that the families and the wounded cannot found their claim to the level of representation that they seek simply on the basis that they have a basic right (whether or not justice and fairness require it) to separate representation, which they have chosen to waive in favour of what they describe as the minimum needed. What they can do, of course, is to seek to demonstrate that justice and fairness require either separate legal representation or, which is in fact what they have chosen to do (and indeed have succeeded in doing), require a higher level of joint representation than that suggested by the Tribunal. By taking this course the families and the wounded have, as it seems to us, correctly acknowledged that separate representation for each is not in fact required for this Inquiry to be just and fair.

It is convenient at this point to consider another matter on which we heard submissions from Mr Treacy, which relates to the scope of the work to be undertaken by those representing his clients, in particular their solicitors.

The Tribunal, of course, cannot prohibit any interested party from taking any steps it wishes to prepare for the Inquiry, but must once again make clear that it regards itself as under a duty to be responsible for collecting, collating analysing and presenting all relevant material. The Tribunal is preparing to engage experts and is seeking to interview everyone who might be expected to have something material to contribute. It is doing so in an entirely open and non-partisan way, so that the world can see how it is conducting itself and so that all who have a direct interest in the Inquiry will have a reasonable opportunity to consider and assess all the material evidence, as well as making suggestions for further or better investigations. In the nature of things, the Tribunal cannot simply accept evidence (whether factual or expert) prepared and presented by or on behalf of the families and the wounded, any more than it can from those with opposing views, for such evidence is, inevitably, going to be carefully selected and presented so as best to support the contentions of those who proffer it. The Tribunal, unlike the families and the wounded (or indeed those with opposing views), does not start with any beliefs at all. Those held by the families and the wounded are clearly genuinely held and may prove to be justified, but 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. That indeed is the duty of the Tribunal.

It follows from this that although it is open to Mr Treacy’s clients to continue their investigations, we would find great difficulty in recommending the payment out of public funds for work done by their advisers which it is the responsibility of the Tribunal to undertake. This does not mean, as Mr Treacy suggested, that the families and the wounded would be reduced to playing a passive role in the Inquiry. As we said in the Opening Statement, we need the active and continuing help of all concerned to help us to find the truth about Bloody Sunday. Counsel to the Inquiry, reporting our progress to date at the outset of this preliminary hearing, gave a number of specific instances in which we need this help.

Mr Treacy’s clients are clearly in possession of highly relevant material which the Tribunal has repeatedly asked them to produce, but which to date they have chosen to withhold. As we observed during the hearing, the impression has been given that this has been done so that this material can be used as a sort of bargaining chip in discussions with the Tribunal about how matters should proceed. The subject matter of this Inquiry is far too important for relevant material to be kept from the Tribunal and used for this purpose. As already indicated in correspondence with Madden & Finucane (in particular in our Solicitor’s letter of 15th May 1998) the Tribunal will recommend the payment out of public funds of the reasonable costs (incurred or to be incurred) of assisting the Tribunal in the task of identifying and locating those who may be able to help the Inquiry, as well as in the other respects set out in that letter.

In this connection there are a number of specific matters on which we should state our views.

Mr Treacy suggested that solicitors instructed by his clients should be reimbursed from public funds for continuing to take what he described as provisional statements from those who might be able to help the Inquiry. We disagree. The costs of helping to identify and locate potential witnesses is one thing, but once this has been done, the task of interviewing those witnesses and taking statements from them, provisional or otherwise, is the responsibility of the Tribunal. Of course, as we said in the Opening Statement, any person the Tribunal seeks to interview has the right to have a legal adviser present in order to protect that person’s interests, and it is up to that person to decide who should fulfil this role if that right is to be exercised.

It also appears that at one stage at least, it was contemplated that the families and the wounded would employ five firms of solicitors, three in Derry collating the existing statements from civilians and taking statements from new witnesses, one in Dublin dealing with the political and historical context within which Bloody Sunday occurred, and Madden & Finucane to co-ordinate the legal team and the preparation for the Inquiry.

We readily acknowledge that it will probably be necessary for more than one firm of solicitors to be engaged to provide the sort of assistance that the Tribunal has indicated that it requires. Collating existing statements and taking new statements, however, is the responsibility of the Tribunal, at least at this stage of the Inquiry. As to the political and historical context, the Tribunal considers, as its Counsel indicated at the beginning of this preliminary hearing, that this should best be approached, at this stage at least, by seeking the views of experts in this field to advise the Tribunal. The selection of such experts we already have in hand, and though of course we are willing to consider any suggestions in this and all other areas in which expertise may be required, we hope all will readily accept that it must be the duty of the Tribunal to satisfy itself that it is getting unbiased and impartial advice.

With regard to experts generally, Mr Treacy suggested that his clients would be put at an unfair advantage if they could not be assisted from public funds to obtain expert assistance at this stage of the Inquiry. Again we must disagree. It is the intention of the Tribunal to engage its own experts in all areas that require expert assistance. It proposes to identify those it is minded to engage and to publish its proposed instructions to those who are to be selected, giving all concerned an opportunity to suggest changes or additions to those instructions. At the earliest opportunity the reports of the experts will be published and the interested parties will be asked to consider them and to say whether or not they agree with the opinions expressed. It may well be that at this stage the families and the wounded may require expert assistance, to help them to understand the reports and to form a view as to whether or not they agree with them, as well as helping them to decide whether or not to request the Tribunal to obtain further expert assistance. Mr Treacy suggested that his clients could be put under a disadvantage if at the oral hearings counsel for other interested parties sought to undermine expert evidence which his clients had previously accepted, since they, without their own experts, would be able to do little or nothing about it. However, as we pointed out during the hearing, this will not happen under the procedures that the Tribunal intends to adopt, for any challenge to any expert report provided to the Tribunal will have to be made long in advance of the oral hearings; and if one is made, the Tribunal will make sure that no interested group will be unfairly disadvantaged.

There is one final point we should make on the subject of experts. This matter was discussed at length on the first day of the preliminary hearing. On the second day of the hearing, Mr Treacy revealed to the Tribunal for the first time that his clients had already retained experts to prepare a computerised reconstruction of relevant areas of the city. He also told us that his clients’ solicitors had been, as he put it, talking to a number of other experts practising in such fields as the pathology of wounds and firearms. What we have already said about expert evidence must apply. We would ask the families and the wounded to consider what their reaction would be if it was suggested that the Tribunal could and should make use of expert evidence prepared on behalf of, for example, the soldiers, where the Tribunal had neither been informed that this was being done nor asked to sanction this course of action, nor been made privy to the conversations with or instructions given to those experts. We would draw the attention of all concerned to what we said in Paragraph 23.5 of the Matters to be Addressed at the Preliminary Hearing.

We now turn to the question of the representation sought on behalf of ten of the soldiers by Mr Edwin Glasgow QC. We accept his submission that they should be represented at the Inquiry by one leading counsel and two juniors. We also accept his further suggestion that we should sanction in advance the representation by this team of any other soldiers who wish to be represented at the Inquiry by them and for whom they could properly act. At the preliminary hearing Mr Glasgow undertook forthwith to inform the Tribunal of the identity of any soldiers who come to be added to those he already represents.

We are very disappointed that to date very few of the soldiers present in Derry on Bloody Sunday have been identified, let alone located. We have, of course, the names of those who gave evidence to the Widgery Tribunal, but in most cases not their present whereabouts, and what is more we want to interview as many as possible of all the soldiers who were there on that day, or who may be able to give us information on the events of that day. Mr Burnett QC, who at our invitation appeared on behalf of the Ministry of Defence at the preliminary hearing, told us of the difficulties the Ministry had encountered in trying to trace these people, having agreed with the Tribunal in April that they would undertake this task. We take the view that the Tribunal itself must now take the initiative in tracing those concerned. We will instruct agents for this task. Mr Burnett told us that one of the problems in tracing at least some of the soldiers lay in the restrictions imposed by the Data Protection Act, and agreed with us that the way forward was probably for the Tribunal to issue subpoenas to the government departments concerned with such things as soldiers’ pensions. We intend to take this course. We must record, however, our dissatisfaction with the fact that a considerable time passed before we were informed of the difficulties being encountered by the Ministry of Defence. Had they come to us earlier and explained their problems, the Tribunal might well have been able to take action itself before now and thereby saved valuable time.

There are two further questions concerning representation on which we heard submissions during the preliminary hearing. The first of these concerned the representation of one of the deceased, Gerard Donaghy.

Mr Donaghy was adopted when he was ten months old. His natural siblings, with whom he had no contact following his adoption, and his adoptive siblings, with whom he was very close, both seek to represent his interests before this Tribunal.

Mr Gallagher QC, for the natural siblings, submits that two factors warrant their separate representation of his interests. They point out that it has been alleged that he, alone of the deceased and wounded, was found with weapons on his person, namely, four nail bombs were found in his pockets while being taken to hospital. In turn, it is alleged on his behalf that the bombs were planted by either the Police or Army. Thus, they argue, as Mr Donaghy has been singled out for having weapons in disputed circumstances, the task of representing him will be a heavy one requiring separate representation. The second factor is that, because he was killed in a location along with three others, a conflict of interest may arise between his interests and the interests of the three other deceased. The nature of the conflict was not disclosed.

Mr Treacy, for Mr Donaghy’s adoptive siblings, submits that adoption legislation gives the adoptive siblings paramountcy, that Mr Donaghy’s interests do not differ from those of the others that he represents, that he can foresee no conflict of interest between Mr Donaghy’s interests and the others and, indeed, that if one arises, he and his instructing solicitors would cease their representation of Mr Donaghy’s interests.

In our view, the claim of the adoptive siblings to represent his interests prevails. Until the death of his adoptive parents when he was about ten years old, he was raised by them in a family unit along with his adoptive siblings. After the parents’ death, he was raised by those siblings. As we are disposed to grant increased representation to the families, any additional burden of representing Mr Donaghy’s interests is accommodated. No conflict between his interests and those of the others who were shot at the same location was identified to us.

The natural siblings have not demonstrated to us that they ought to represent Mr Donaghy’s interests nor that they should be permitted separate representation, along with the adoptive siblings, of his interests. For that reason, we are satisfied that Father Patrick Donaghy and Mary Donaghy, the adoptive siblings of Mr Gerard Donaghy, are solely entitled to represent his interests before this Tribunal.

The remaining matter relating to representation is the application made by Mr Treacy on behalf of Mr Fulvio Grimaldi for this gentleman to be separately legally represented at the Inquiry.

Mr Grimaldi was in the city on Bloody Sunday. He took many photographs and gave evidence to the Widgery Inquiry. At this Inquiry he was cross-examined. It was suggested to him that he was a liar and closely associated with illegal organisations. Mr Grimaldi at the end of his evidence produced a number of bullets which he said that he had collected and which he further said demonstrated that General Ford had lied about the number of shots the soldiers had fired. At a later stage of that hearing, and in the absence of Mr Grimaldi, an expert who said he had examined the bullets, expressed the view that their appearance was consistent with them having been fired into sand, that they showed signs of exposure to oxidation for a considerable time, that many appeared to have been gripped in a vice, probably in a deliberate attempt to distort them, and that it was most unlikely that any of the bullets had been fired on the streets of the city on 30th January 1972.

The Tribunal has yet to interview Mr Grimaldi. If he is willing to be interviewed he has, of course, the right to have a lawyer present to safeguard his own interests. Until this interview has taken place, and until any evidence he has to give can be assessed in the light of all the other material the Tribunal has gathered, it is quite impossible to know whether or not the interests of justice require that Mr Grimaldi be legally represented at the Inquiry. We accordingly refuse this application on the grounds that it is premature. If circumstances arise in the future that would justify the renewal of the application, we would of course reconsider the position.

There remain some matters, which do not call for an immediate ruling by us, but on which we wished to hear the views of those represented before us.

The first of these concerns the question of anonymity.

In the expectation that the question of anonymity would arise, we asked the interested parties for any general observations or submissions they might have as to the approach that we should adopt in relation to it. It will be recalled that, with the exception of five senior officers, the soldiers who gave evidence before the Widgery Inquiry were not required to disclose their names.

We have not yet been asked to make rulings on anonymity in respect of any individual witnesses or groups of witnesses who may give evidence to this Inquiry. However the Treasury Solicitor and Ministry of Defence have indicated that applications for anonymity are likely to be made in due course on behalf of soldiers or former soldiers who were serving in Londonderry on Bloody Sunday.

It should be remembered that there are various different forms of anonymity. Depending on the circumstances, it might be appropriate to allow a witness to give evidence without stating his or her name and address in public, or perhaps to give evidence from behind a screen in order to conceal his or her physical appearance. It might also be necessary to preserve the anonymity of individuals by substituting letters or numbers for names in witness statements and other documents.

Mr Treacy referred us to a number of authorities in this field, including Scott v Scott 1913 AC 417, A-G v Leveller Magazine Ltd 1979 AC 440 and R v Murphy & Maguire 1990 NI 306. He also annexed to his written submissions a copy of an article by Gilbert Marcus, “Secret Witnesses” (1990) PL 207. Mr Treacy argued that the granting of any form of anonymity was a very grave step that should only be taken if justified on compelling grounds.

In adversarial procedure, great importance is rightly attached to the principle of open justice. In particular, the courts require very strong grounds indeed before departing from the rule that a person charged with a criminal offence is entitled to know the identity of prosecution witnesses and to see them give their evidence. One of the reasons for this is to enable the opposing party to investigate and assess the credibility of those witnesses.

The position in relation to an Inquiry such as this one is, in our view, rather different. Nobody is being prosecuted before this Tribunal, nor is it our function to do justice between parties competing in an adversarial contest. Our task is to do justice by ascertaining, through an inquisitorial process, the truth about what happened on Bloody Sunday. The proper fulfilment of that task does not necessarily require that the identity of everyone who gives evidence to the Inquiry should be disclosed in public. The Tribunal will know the identity of all witnesses and, unlike a court, will itself take responsibility for investigating their credibility if there is reason to think that such an investigation is necessary.

Indeed we think that there are likely to be circumstances in which granting anonymity will positively help us in our search for the truth. Witnesses are unlikely to come forward and assist the Tribunal if they believe that by doing so they will put at risk their own safety or that of their families. Moreover it would be a mistake to suppose that the grant of anonymity would always operate to protect soldiers who are alleged to have been guilty of serious offences on Bloody Sunday. There may well be witnesses who wish to give evidence that is favourable to the interpretation of events for which the families and the wounded contend, but who will not co-operate with the Tribunal without assurances as to their anonymity. We are aware, for example, of certain television programmes in which people describing themselves as ex-soldiers present on Bloody Sunday have criticised the conduct of the Army on that day, but have done so anonymously, presumably for fear of reprisals by their former comrades.

Accordingly, we will be willing to grant an appropriate degree of anonymity in cases where in our view it is necessary in order to achieve our fundamental objective of finding the truth about Bloody Sunday. We will also be prepared to grant anonymity in cases where we are satisfied that those who seek it have genuine and reasonable fears as to the potential consequences of disclosure of their personal details, provided that the fundamental objective to which we have referred is not prejudiced. As to the degree of anonymity that is appropriate, our current view is that restricting the disclosure of names and addresses ought to be sufficient in most, if not all, cases. We would regard the use of a screen as a wholly exceptional measure.

The obligation nevertheless remains firmly on those who seek anonymity of any kind to justify their claim. Applicants for anonymity must supply the Tribunal with a written explanation of the basis of their application, together with any material relied upon in support of it. Of course, unless and until the application is refused, the Tribunal will not reveal any information in its possession, disclosure of which might pre-empt its ruling. Otherwise, however, and subject to any claim for public interest immunity, we propose to circulate any written applications for anonymity to all interested parties and to invite their submissions before making a ruling.

It is obviously important that these applications should be determined sooner rather than later, especially in view of the problems that delay will cause in respect of the distribution of documents containing the names of potential applicants for anonymity. The fact that so far only a few of the soldiers have been traced presents the practical difficulty that their instructions cannot be obtained until they have been found. Rather than waiting for them to be located, we intend to ask the Ministry of Defence to put forward any application for anonymity on their behalf, together with such submissions and evidence as it considers appropriate in relation to any continuing security risk to which they may be exposed. The Solicitor to the Tribunal will shortly be writing to the Ministry of Defence in this connection, as well as to the Treasury Solicitor on behalf of the soldiers represented by Mr Glasgow. Meanwhile, in order to provide to interested parties as many as possible of the documents we have collected to date, we shall blank out the names etc of those who we consider may have a case for anonymity, in order not to pre-empt any future ruling and to minimise delay in the publication of documents.

The second matter which the Tribunal raised during the course of the preliminary hearing was the question whether the Tribunal should recommend to the Attorney General that he should provide an assurance that nothing said to the Tribunal by any person, either before or at the oral hearings, could or would be used in subsequent criminal proceedings against that person.

The object of doing this is to encourage people to come forward to assist the Inquiry in its search for the truth, without fear that what they say may afterwards be used against them. Without such an assurance, of course, any witness has the right to exercise the privilege against self-incrimination. However, the Tribunal is presently of the view that were such an assurance given, it would not be possible for witnesses to refuse to answer questions on the basis of the privilege against self-incrimination, for the simple reason that no question of incrimination could arise. Furthermore, in such circumstances, were the witness to continue to refuse to answer, it would on the face of it be proper for the Tribunal to draw inferences from that refusal. The Tribunal would also draw attention to the provisions of the European Convention on Human Rights, expected shortly to be brought into force in this country, which contains provisions which might themselves prevent or restrict the use in subsequent criminal proceedings of statements made to the Inquiry.

It is considerations such as these that led us to observe to Mr Treacy that his description of the point under discussion as the question of “partial immunity” is in our view inaccurate and likely to be confusing, especially to non-lawyers. “The status of evidence” would be a better description.

This is a matter on which the Tribunal would like to hear the views of interested parties as soon as possible. We are bound to say that our present view is that we will be gravely hampered in seeking to find the truth without the assurance to which we have referred, while little if anything will be gained in the absence of such an assurance. The urgency lies in the fact that this is not a matter which can await the oral hearings, since we are already engaged in trying to interview potential witnesses and it seems to us that many may be reluctant to help or advised to rely on their privilege in the absence of an assurance. It is also important to remember that the assurance only applies to the individual giving the evidence and only protects that individual in respect of that evidence. All other facts found by the Tribunal would be unaffected by it and would remain to be taken into account in the event that those responsible conclude after the Inquiry that criminal proceedings should be taken.

Mr Treacy reasonably asked for time to consider this point and agreed that what he had to submit could be done in writing. The same, of course, applies to others who wish to express their views. As we made clear during the preliminary hearing, these submissions, and any ruling of the Tribunal, will be made public.

We should record at this point that we have received to date no application for immunity from prosecution, nor any claim to public interest immunity in relation to documents. Thus all that needs to be said in this connection is that we shall notify all interested parties should such questions arise in the future and give them an opportunity to make representations before we make any ruling.

There remains the question of legal professional privilege claimed by some of the soldiers in respect of certain documents in their possession. Again Mr Treacy asked for time to consider this claim and to put any submissions in writing. This is acceptable to the Tribunal on the same basis as we have indicated when discussing the topic of the status of evidence. Mr Treacy and his clients will doubtless have in mind that in many cases the claim to privilege relates to copies of documents in the possession of individuals, the originals of which (or further copies) have already been collected by the Tribunal and will be distributed to all concerned. There would seem to be little if any point in debating intricate points of discovery when the documents in question are available from other sources.

Finally we should record that we found the oral preliminary hearing to be of great assistance in considering the various topics that were raised. However, there remains a great deal to be done on substantive matters. We hope that in the autumn we shall be able to produce and publish a preliminary analysis of the material collected, together with the identification of what appear at that stage to be key issues and such matters as a provisional list of those we consider should be called to give oral evidence. Thus unless it is unavoidable, we would prefer to deal with other preliminary matters by way of written submissions, since it is very time consuming for all concerned to organise and conduct oral hearings.

The public can rest assured that the fact that matters are being conducted in writing rather than at an oral hearing does not affect at all what we said in our Opening Statement about the public nature of this Inquiry and we shall be continuing to utilise our Web site (http://www.bloody-sunday-inquiry.org.uk) and other appropriate means to keep everyone informed of what is going on.

Lord Saville

Sir Edward Somers

Mr Justice Hoyt

24th July 1998