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Rulings & Judgments
Further Rulings and Observations
by
Lord Saville
Sir Edward Somers
Mr Justice Hoyt
27 November 1998
Over the course of the last few months, a number of matters have been the subject of submissions from interested parties. In addition there are other matters on which it is now also appropriate to make rulings and observations.
Among the matters discussed at the preliminary hearing in July was the question whether the Tribunal should seek from the Attorney-General an assurance in the form of an undertaking 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.
In its Rulings and Observations issued after that preliminary hearing, the Tribunal had this to say about seeking such an undertaking:
"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 Counsel acting for those represented by Messrs Madden & Finucane 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 have now received and considered submissions on this topic. Those acting on behalf of certain soldiers have simply expressed their general support for seeking such an assurance, while those acting on behalf of the families and the wounded have put forward detailed reasons for not taking this course.
It may be helpful first to set out some general observations.
The object of the present Inquiry, as we made clear in the Opening Statement, is to try and find out the truth about what happened on Bloody Sunday. Unlike some other forms of Inquiry, we are not charged with investigating whether or not grounds exist for bringing criminal charges against any person or persons, though of course if we concluded that, for example, conduct which caused or contributed to the death or wounding of individuals was wrongful, we would not hesitate to say so.
Equally, we are well aware that some at least of the families of those who died and those who were wounded believe that the casualties resulted from criminal behaviour and that those responsible should not escape justice but should be prosecuted. However, the responsibility for deciding whether or not there are grounds for prosecutions and whether or not there should be prosecutions does not lie with us.
In these circumstances our primary duty must be to use all legitimate and proper means to try and get to the truth. It is in this context that we considered whether the existence of the privilege against self-incrimination, which is among the privileges and immunities given to witnesses by Section 1(3) of the Tribunals of Inquiry (Evidence) Act 1921, was likely to hinder us in our task and if so, whether there were any legitimate and proper means we could employ to remove or reduce that hindrance.
The privilege against self incrimination is deeply rooted in the common law, arising in part at least from the revulsion felt by the methods employed by the Star Chamber: see, for example, Holdsworth's History of English Law, 3rd Ed. (1944) Volume 9 at page 200 and Lord Griffiths in Lam Chi-ming v The Queen 1991 2 A.C. 212 at page 222. It is, as Lord Wilberforce said in Rank Film Distributors Ltd. v Video Information Centre 1982 A.C. 380 at page 442 "a basic liberty of the subject." It is indeed a basic human right.
What is important to remember in the present context, is that this right is not confined to an entitlement to refuse to answer questions designed to elicit a direct confession or admission of criminal conduct, but necessarily extends very much further. That this is reflected in the European Convention on Human Rights was made clear in the judgment of the European Court of Human Rights in Saunders v United Kingdom 1996 E.H.R.R 313, where the British Government had argued that the evidence which Mr Saunders had been forced to give to a Department of Trade and Industry Inquiry (under statutory provisions that in effect removed the privilege) and which was afterwards used at his criminal trial, was not self-incriminatory and that he had merely given exculpatory answers or answers which, if true, would serve to confirm his defence. The Court, having pointed out that in fact some of Mr Saunder's answers were directly self-incriminatory, went on to say this:
"In any event, bearing in mind the concept of fairness in Article 6, the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating. Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature -such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury the use of such testimony may be especially harmful. It follows that what is of the essence in this context is the use to which evidence obtained under compulsion is made in the course of the criminal trial."
The Court in that case was of course dealing with the question whether there had been a violation of Article 6(1) of the Convention, which gives the right to a fair trial, and which will not become an integral part of our law until the Human Rights Act 1998 comes into force. However, we are firmly of the view that as a matter of common law, the ambit of the privilege against self-incrimination is at least as wide: see, for example, Sociedade Nacional de Combustiveis de Angola U.E.E. v Lundqvist 1991 2 Q.B.310 and Den Norske Bank ASA v Antonatos 1998 Lloyd's Law Reports: Banking 253. On these authorities it seems that not only does a person possessing the privilege against self-incrimination have the right not to give evidence (nor to produce documents) which could later be deployed against him in a criminal trial, but also that this right apparently extends to anything which could fairly be said to give rise to the risk or increased risk of prosecution.
In the context of the present Inquiry, where allegations of very serious criminal conduct are being made and pursued against soldiers and where indeed those making those allegations have, as we have pointed out, expressed their determination that those they believe have committed crimes should be prosecuted, it seemed to us that there was a real prospect that witnesses who can reasonably be expected to be in a position to assist the Tribunal in its search for the truth, would choose to exercise their human right not to incriminate themselves, and would thereby (given the width of the immunity) deprive the Inquiry of much valuable information in that search.
On this basis we considered whether there were any legitimate and proper means by which we could both protect the right of witnesses not to incriminate themselves and also put ourselves in the position of getting as much relevant information as possible.
In our view an undertaking from the Attorney-General (by which expression we include any other appropriate authority, such as the Director of Public Prosecutions) would achieve this objective. Bearing in mind the width of the immunity, an undertaking would have to be in the following form or one to the same effect, namely an undertaking in respect of any person who provides evidence to the Inquiry, that no evidence he or she may give before the Inquiry, whether orally or by written statement, nor any written statement made preparatory to giving evidence, nor any document produced by that person to the Inquiry, will be used to the prejudice of that person in or in connection with any criminal proceedings (actual or contemplated) against that person, except proceedings where that person is charged with having given false evidence in the course of this Inquiry or with having conspired with or procured others to do so.
In our view, if such an undertaking were provided, persons giving evidence to the Inquiry in any form could not refuse to answer or to produce documents on the basis of the privilege, for there would be no risk of self-incrimination: see, for example, R v Boyes (1861) 1 B & S 311 and Re Genese (1885) M.B.R. 223. As we said in July, it also seems to us that in such circumstances, the Inquiry could properly draw inferences from a failure to answer questions or to produce documents, unless of course there were other good grounds (apart from the privilege against self-incrimination) to justify that failure.
We could not see any real disadvantages from taking this course. In the absence of an undertaking, those from whom the Tribunal wished to obtain information would be fully entitled to exercise their human right against self-incrimination. Indeed, it seems to us that it is part of the duty of a Tribunal like the present one itself to take care that those from whom it wishes to obtain information are made aware of their rights and so can make an informed choice as to whether or not to exercise them, which is why, in our Opening Statement, we made clear that those whom we wished to interview were entitled to have their own lawyer present to safeguard their interests. It follows from this that any suggestion that (without an undertaking) witnesses would or should provide from their own mouths evidence or other support for later criminal prosecutions against them simply cannot be sustained. If, apart from self-incriminatory material, there are grounds for prosecuting anyone which emerge from the Inquiry, then the existence of the undertaking should in our view make no difference.
We now turn to consider the detailed submissions made on behalf of the family of James Wray deceased.
The basic submission advanced for the Wray family is that it is wrong in principle to seek a "blanket" assurance from the Attorney-General covering all potential witnesses; and that if any assurance is to be sought at all, this should only be done if and when requested by a witness, and then only if that witness provides full reasons for that request, including an outline of the nature and content of the evidence to be given and an explanation as to why that evidence cannot be given without the assurance; if the Tribunal is satisfied there is a proper reason for doing so which outweighed the public interest in pursuing a prosecution; and if the parties represented at the Inquiry are given an opportunity to make submissions to the Tribunal on the desirability of seeking an assurance in the particular case.
A number of arguments are advanced in support of the proposition that seeking a "blanket" assurance would be wrong in principle.
The first of these is that since the Tribunals of Inquiry (Evidence) Act 1921 gives a tribunal established under that Act the same powers as the High Court possesses for securing the attendance of witnesses, their examination under oath and the production of documents; and witnesses the same immunities and privileges as they would enjoy in the High Court, it was clearly not the intention of Parliament to provide witnesses at tribunals with any additional immunity of the kind that would prevent the subsequent use against them of evidence given at the tribunal's hearings.
This argument would seem logically to lead to the proposition that in no circumstances does a tribunal have a power to seek an assurance from the Attorney-General, but can only use the powers expressly given in the Act. However, those making the argument expressly accept (in our view correctly) that this is not the position and that a tribunal does have this power. The point that is made is that in these circumstances the discretion whether to make a recommendation must be exercised judicially in accordance with proper principles, in particular taking into account the scheme and intention of the Act.
Few would quarrel with the proposition that a tribunal, when exercising its powers or discretion on any matter, must do so judicially and in accordance with proper principles. However, it seems to us that this arises from the very nature of a tribunal of inquiry and general principles of justice, rather than from seeking to draw inferences (which can only be speculative) as to what Parliament did not intend. For example, the fact that Parliament said nothing about tribunals acting judicially and in accordance with proper principles could hardly mean that Parliament did not intend tribunals to act in this way.
The next submission relates to the fact that the Salmon Report (Cmnd 3121) considered that a witness's immunity should be extended so that neither his evidence before the Tribunal, nor his statement to the Treasury Solicitor (i.e. to the solicitor to the Tribunal) nor any documents he is required to produce to the Tribunal, should be used against him in any subsequent civil or criminal proceedings except in criminal proceedings in which he is charged with having giving false evidence before the Tribunal or conspired with or procured others to do so. In 1973 the then Government expressed the view that this proposal was acceptable, but considered that legislation was necessary to give effect to this recommendation. (See Cmnd 5313, paragraphs 36 and 51(g)). On this basis the submission is that "the use of a device designed to achieve a result not contemplated or approved by Parliament in the Act or subsequent legislation should not be employed as a matter of course or in a blanket fashion but only in exceptional circumstances where the facts in a given situation warrant a departure from the normal rule."
We understand from this submission that it is suggested that the "normal rule" should be to use the powers expressly given in the Act, rather than those which are not spelt out in the Act but which it is accepted a tribunal possesses.
We do not see why this should be so. The tribunal's task is to exercise those powers that it concludes will best assist in carrying out the particular inquiry entrusted to it by Parliament. In our view, there are no "normal rules" of the kind suggested, apart of course from the need to act judicially and in accordance with proper principles.
The next submission seeks to challenge the view expressed by the Tribunal in July that it would be gravely hampered in seeking to find the truth without the assurance, while little if anything would be gained in the absence of an assurance.
It is first submitted that it is premature to suggest that the Tribunal will be hampered in seeking the truth. The point is made that this Inquiry is unique in that it has been set up to inquire into an issue which has already been the subject of an inquiry by a tribunal established under the same Act. It is submitted that since the present Tribunal has at its disposal the evidence put before the previous inquiry (including in particular that of the soldiers) as well as a substantial body of additional evidence that has become available since publication of the Widgery Report, the availability of all this evidence may very well allow the Tribunal to find the truth without the proposed assurance being offered to any witnesses.
The Tribunal is indeed in possession of a considerable body of evidence. This discloses, to put it at its lowest, a fundamental difference of expressed views as to what actually happened on Bloody Sunday. In these circumstances (and bearing in mind the seriousness of the allegations that have been made) it seems to us to be vital to talk to as many as possible of those who were there on that day or concerned with the events that occurred, be they civilians, soldiers or others, notwithstanding they may have already given statements or indeed evidence to the previous inquiry. As we have said before, one of the purposes of an undertaking is to encourage these people to come forward, without fear that what they say may be held against them, to give us the help we undoubtedly need. Of course, many of these people will not need that encouragement, but equally it seems to us (as a matter of common sense) that many (particularly those against whom serious allegations have been made) will be reluctant to come forward or to speak fully and frankly. With an undertaking, people will not only be assured that what they say will not be held against them for the purpose of criminal proceedings, but will also have in mind that, so far as the Inquiry is concerned, their continued silence might well speak for itself.
This leads to the next submission, which is to the effect that such an assurance does not guarantee that the witness will in fact be frank and forthright giving his evidence, and that admissions of criminal or discreditable conduct are much more likely to be made, if at all, in cross-examination.
We entirely accept that the provision of an assurance is no guarantee that witnesses will come forward and give full and frank evidence. The question we have asked ourselves is whether, in the absence of an assurance, we are likely to be hampered in carrying out our task of trying to find out what happened on Bloody Sunday. We remain firmly of the view that this is the case. It seems to us, again as a matter of common sense, that to ask people to give evidence in circumstances where it is being asserted that those people have committed criminal offences, and where what they say may subsequently be held against them in criminal proceedings, is in truth to encourage them not to come forward or, if they do, to exercise their undoubted right not to be compelled to incriminate themselves. Furthermore, the suggestion that any admissions are more likely to be made in cross-examination simply ignores the fact that, in the absence of an assurance, the witness can exercise the right against self-incrimination.
In Paragraph 10 of their submissions, the Wray Family says this:
"The fact that a witness who had been given an assurance could not refuse to answer further questions does not mean that he will answer them truthfully. Conversely, the fact that a witness who had not been given an assurance could refuse to answer further questions does not prevent the Tribunal from drawing obvious inferences."
The first part of this submission is correct, but it is incomplete. Without the assurance the witness can exercise the privilege against self-incrimination. With the assurance we believe that the witness does not have the right to refuse to answer. If the witness seeks to lie at this point, then the opportunity exists, which it would not otherwise do, to seek to demonstrate by further questioning that he is not giving truthful answers.
The second part of this submission, if we understand it correctly, is in our view wrong. In our view we could not draw any inference from the justified refusal of a witness to answer on the grounds that the answer might incriminate him. The witness is exercising a legal right not to answer; and we cannot accept the proposition that nevertheless a court or tribunal could, in effect, treat the witness as not having exercised that right but instead made an admission. See Ex Parte Symes (1805) 11 Ves. Jun. 521 at 523 per Lord Eldon L.C. and Sociedade Nacional de Combustiveis de Angola U.E.E. v Lundqvist 1991 2 Q.B.310 at 319. Of course, where the privilege exists and is exercised, its consequence in the ordinary case will be that there will be nothing in evidence from the person concerned to rebut other evidence against him, but we are engaged in a search for the truth, which requires as much evidence as we can gather.
Conversely, where an assurance has been given, so that the evidence could not incriminate the witness, we believe that it would be permissible (other things being equal) for the Tribunal to draw inferences from a witness's refusal to answer, for that refusal could not be justified on the basis of the exercise of a legal right against self-incrimination.
The next submission is an assertion that a dishonest witness who has something to hide and is liable to prosecution on the basis of evidence other than his own testimony is highly unlikely in any circumstances to make admissions which would strengthen the calls for his prosecution even if those admissions could not in themselves be used against him subsequently.
Again we would not necessarily quarrel with this submission, but again it is incomplete. The assumed dishonest witness will, of course, not hesitate to exercise his privilege against self-incrimination. With the assurance, we believe, as we have said, that the witness will have to answer questions, since his answers cannot incriminate him. If he then lies there is an opportunity to question him further to reveal the falsity of what he has said; if he remains silent, then inferences may be drawn from that fact. Without the assurance, neither of these things can be done.
It is then submitted that an assurance would not encourage a witness to make admissions implicating another person, since the assurance would not provide any protection for that other person.
To our minds this submission does not carry the matter any further. If there are good reasons for seeking an assurance, the fact that an assurance would not help in this instance is neither here nor there. Apart from this however, with an assurance a witness would have to answer (or risk inferences being drawn) in a case where his answer would implicate both himself and another. Without the assurance he could exercise his right.
The submission then continues by challenging the proposition that little if anything would be gained in the absence of an assurance. The hope is expressed that the Inquiry will not only establish the truth of the matter under investigation, but will provide sufficient evidence to pursue prosecutions for the serious offences that, according to the submission "were undoubtedly committed on Bloody Sunday." It is suggested that "the provision of a blanket assurance of the kind contemplated may seriously hamper the pursuit of prosecutions since, by definition, none of the evidence given by the witnesses who receive such assurance will be available for use in any subsequent prosecution."
On any view, the submission as stated is incorrect, for the assurance would only protect the individual giving the evidence from the subsequent use of that evidence against him. The undertaking would have no effect on any subsequent prosecution of others. Apart from this, however, the submission seems to us to make the bold and to our minds unsustainable assumption that in the absence of an assurance, witnesses are likely to provide self-incriminatory evidence rather than exercising their human right to remain silent, for if the evidence they give is outside the wide ambit of the privilege against self-incrimination, then it will in truth be of little or no use in any subsequent prosecution against them.
In their next submission, the Wray family correctly point out that in the absence of an assurance, the Tribunal would have to be satisfied that any claim to privilege against self-incrimination was a proper one and not a case where the danger (in the context this must mean of criminal prosecutions) was of an imaginary or insubstantial character. Again we agree, but in this Inquiry, where allegations of the most serious offences have been made and maintained for many years, where many (including the Wray family themselves) have made clear that they want those they believe to be guilty to be brought to justice, and where indeed through gunfire people died and were wounded, we do not believe that it can be seriously suggested that claims to privilege against self-incrimination are likely to be defeated on this ground.
The submission continues by pointing out that the privilege does not extend to evidence that would tend to incriminate others, so that in the absence of an assurance witnesses could be pressed to answer questions that might produce such evidence. Thus, it is said, evidence of value might be obtained which could be used in the subsequent prosecution of offenders other than the witness. All this is correct, (as indeed we have pointed out when dealing with earlier submissions), but the providing of an assurance in no way prevents such evidence from being adduced. Indeed, as we have also pointed out above, it seems to us that with an assurance, witnesses may have to give evidence which, while tending to incriminate others would (but for the assurance) also incriminate the witness himself. Without the assurance the witness would be entitled to refuse to answer and so that evidence would be unavailable.
In Paragraph 14 of their submissions the point is made that there has been no request from any witness for an assurance of the kind requested. This is not in the least surprising, since all witnesses enjoy the privilege against self-incrimination and so have no reason to make any such request. The point of the assurance is not to give witnesses additional rights, but to help the Tribunal to seek the truth.
In the same paragraph reference is made to a letter from the Treasury Solicitor to the Inquiry dated 4th August 1998 to the effect that they have no instructions from any of their clients that they will seek immunity. This latter point demonstrates the confusion that is likely to arise if the point under discussion is regarded as a kind of immunity, as we pointed out in July. The letter in question is referring to an immunity from prosecution. This is a different subject from that under discussion, which has nothing to do with immunity, but is concerned with the human right not to give self-incriminatory testimony.
There remains the suggestion that instead of seeking what has been described as a blanket assurance, an assurance should only be sought if and when requested by a witness, and then only if that witness provides full reasons for that request, including an outline of the nature and content of the evidence to be given and an explanation as to why that evidence cannot be given without the assurance; if the Tribunal is satisfied there is a proper reason for doing so which outweighed the public interest in pursuing a prosecution; and if the parties represented at the Inquiry are given an opportunity to make submissions to the Tribunal on the desirability of seeking an assurance in the particular case.
In our view this suggestion is unacceptable for a number of reasons.
In the first place, as we have observed above, witnesses in general have no cause to seek such an assurance, protected as they are without it by the wide ambit of the privilege against self-incrimination.
In the second place, the suggestion is that the witness should in effect provide the very evidence in respect of which the assurance is sought. If the evidence would not tend to incriminate that witness, there would be no point in him asking for the assurance. If the evidence was self-incriminatory, then the witness has the right not to give it.
In the third place, if there was a witness who had self-incriminatory evidence that he wished to give but which he did not want to be used to incriminate him, then the so-called blanket assurance would cover this case, but the suggestion made would involve the witness having to take the risk of incriminating himself in an attempt to get the assurance, since his application might be refused. To our minds that would be tantamount to a breach of the human rights of that individual.
For these reasons we are unpersuaded by the submissions made on behalf of the Wray family that we should not adopt the course we suggested in July.
We now turn to the submissions made on behalf of the families of those who died and those of the wounded represented by Messrs Madden & Finucane.
In their letter dated 5th November 1998, which preceded their written submissions, this firm stated that they were anxious to know whether those representing the soldiers accepted the view we expressed in July that an assurance would preclude reliance on the privilege against self-incrimination.
We have not asked the representatives of the soldiers this question. It seems to us that this is a matter on which the Tribunal must now make up its own mind and proceed accordingly, having in July invited all concerned to make what submissions they wish on the subject, having considered those submissions, and giving, as we endeavour to do in this ruling, our reasons for our conclusions.
In their letter accompanying the submissions, Messrs Madden & Finucane expressed the view that before irrevocable assurances are given, the Tribunal would have wanted to ensure that the legal basis underpinning its provisional view was beyond meaningful challenge.
Interested parties can be assured that we have considered the legal position as carefully as we can. We have no doubt ourselves that the views that we have expressed are correct.
In the same letter we are asked to confirm that no witness has to date sought to exercise the privilege against self-incrimination. We are not aware of any such case, nor does this surprise us, since there is nothing to suggest that any of those we have interviewed to date run any real risk of prosecution. We have yet to start interviewing those some of whom may be (and on the contentions of those represented by Messrs Madden & Finucane, are) in a different position.
As to the submissions themselves, in many places these seek to make the same points as made on behalf of the Wray family, and to which we would give the same answers. For example, in paragraph 4 the submission is that since damaging admissions are likely to be secured in cross-examination, an assurance may negate or make more difficult the bringing of successful criminal proceedings. Such a submission simply ignores the fact that without the assurance, the person concerned has the human right not to answer questions which may incriminate him; as well as ignoring the fact that an assurance will in no way impede criminal proceedings brought against another.
The submission continues by stating that servants and agents of the state who may have murdered innocent unarmed civilians should not be clothed by an assurance; with, as it is put, such "special protection".
In our view such submissions appear to demonstrate a failure to understand the purpose and effect of seeking an assurance.
The purpose of an assurance is to help the Tribunal to seek the truth while not infringing human rights, as we have explained above.
The effect of an assurance is that in its absence everyone (including servants and agents of a state) has the basic human right not to be compelled to give self-incriminatory evidence, however heinous the suspected crime may be. The assurance means that such persons are not justified in refusing to answer questions on the grounds that this human right would be infringed, for since there would be no risk that their answers could be used against them in criminal proceedings, their rights are not being infringed. The submission seems to proceed on the assumption that in the heat of cross-examination a witness (or his legal representatives) will overlook the fact that he has the right not to make damaging admissions. This Inquiry is unlike a criminal trial, where if the defendant chooses to give evidence, he is treated by statute as having waived his privilege; and it may be that the apparent lack of understanding has arisen from overlooking this fact.
In our view reliance in the submissions on certain Articles of the European Convention on Human Rights and reliance on the authorities cited is equally misplaced. As we have said, this Inquiry is charged with the duty of trying to find out the truth about Bloody Sunday. It is not a Grand Jury, responsible for deciding whether grounds exist for prosecutions, nor does it have the power to recommend or to initiate any prosecutions for what happened on that day. Quite apart from this, however, we cannot accept that anything in the Convention or the authorities cited militates against seeking the suggested assurance, since this could only begin to have the effect suggested if indeed the assurance provided some "special protection." It does not. Instead it provides the Tribunal with a better means of performing its duty while protecting the human rights of those whose help it needs.
There remain the supplemental submissions made on behalf of the clients of Messrs Madden & Finucane and dated 13th November 1998. Our ruling is, as given above, that an assurance in the form set out above would preclude reliance on the privilege against self-incrimination, and that it is not appropriate for us to seek any form of confirmation of our views from those representing soldiers. We should point out that at present only a few soldiers are represented, so that even if we were now to seek confirmation, it would (if given) at best only bind those few. We should also point out that it is not within our power to prevent those who wish to do so from seeking to challenge our rulings elsewhere.
For these reasons, we are also unpersuaded by the submissions made on behalf of those represented by Messrs Madden & Finucane.
We should add this. The theme running through the submissions of those who oppose the seeking of an assurance from the Attorney-General seems to be that such an assurance would wrongfully prejudice the bringing of criminal proceedings against those the families and the wounded believe were criminally responsible for the deaths and injuries. We are not persuaded of this. Bearing in mind that it is our primary duty to seek the truth about what happened on Bloody Sunday, it seems to us that since we consider that an assurance would help us to perform that duty, we should seek that assurance. It is, however, for those responsible for deciding whether an undertaking should be given to consider whether in the public interest the Inquiry should proceed without what the Tribunal believes to be a valuable aid in the performance of its duty.
At a very late stage we received submissions from the British Irish Rights Watch and the Committee on the Administration of Justice in relation to (among other things) the question of the status of evidence. These we have been able to consider, but for the reasons given in this ruling, we are unable to accept them. We should emphasise that in our view both these organisations are in error in describing the point at issue as one of "immunity" or "immunity from prosecution." We are not recommending immunity from prosecution for anyone, nor do we accept that this will be the effect of an assurance. In our judgment it would be wrong and highly misleading to suggest the contrary.
In these circumstances we have decided that acting judicially and in accordance with proper principles we should seek an assurance from the Attorney-General in the terms of or to the same effect as the undertaking that we have set out above; and this is what we shall now do. We shall of course, draw attention to what has been submitted to us, and to that end we shall enclose with our request copies of the submissions made to us and of this ruling.
The public hearings of the Inquiry will begin, as we intimated in the Opening Statement, in the Guildhall. However, as we also indicated in that Statement, some subsequent hearings may also take place in London. Those represented by McCartney & Casey have indicated that they would wish to make submissions opposing the hearing in London of evidence from the soldiers, while those representing certain soldiers have requested that any evidence from soldiers should be heard in London. We are prepared to consider further submissions on this question, provided (as we have already informed interested parties) they are sent to us by close of business on Thursday 3rd December 1998. We shall then distribute any further submissions to interested parties, giving them a further seven days in which to make any comments by way of response. We shall then consider the submissions and comments that we have received and make our ruling as soon as possible.
In this connection we should point out that if we were to decide to conduct any part of the public hearings in London, we would first have satisfied ourselves that proper facilities could and would be put in place to enable those hearings to be seen and heard as they happened on a suitably large video screen available to the public in the city where Bloody Sunday occurred. The legal representatives of interested parties would, of course, be expected to be physically present.
We have already retained a number of experts to assist us in our task. We trust that shortly we can issue their formal instructions, after having consulted interested parties.
We have received applications for anonymity and legal professional privilege. It is not possible yet to deal with those, since the process of receiving submissions and comments on submissions is not yet complete. We are anxious, however, to deal with these matters as soon as possible and have written to those concerned to ensure that this can be done. We shall, of course, make public in the ordinary way any rulings we make on these subjects.
On 30 November we will publish a report of our progress since the hearing in July together with an outline timetable for the future. We are planning to start oral hearings on 27th September 1999.
On 3 December we will also publish a Report prepared by our Counsel of their researches on the material that they have been able to analyse to date. As that Report itself makes clear, the views expressed are those of Counsel, and not the Tribunal, and are, themselves, preliminary and subject to change. The Report does, however, set out the issues that our Counsel have identified as a result of the analysis that they have carried out to date. Insofar as it does so the interested parties (and any others concerned) should treat the Report as notice from the Tribunal that such issues are likely to arise in the Inquiry and be considered by the Tribunal and prepare themselves accordingly.
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