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Rulings & Judgments

Ruling on Submissions
relating to
Report No 1 of Counsel to the Inquiry
by
Lord Saville
Sir Edward Somers
Mr William L. Hoyt

18 December 1998


1. Messrs Madden & Finucane, representing the families of most of those who died and those who were wounded on Bloody Sunday, have sent us Submissions signed by Counsel in respect of Report No 1 By Counsel to the Tribunal. These Submissions contain what is described as an objection in principle to this Report and also set out the grounds for that objection.

2. The Tribunal has considered these submissions and rejects them in their entirety. In the view of the Tribunal, the submissions disclose not only a disappointing failure properly to understand the object of the Report, but also a continuing failure to accept that (as we made clear in the Opening Statement) this is an inquisitorial Inquiry which has the duty of seeking the truth with fairness, thoroughness and complete impartiality.

3. The first objection made to the Report is that "Counsel to the Tribunal ought not to usurp the role of the Tribunal itself by forming and disseminating preliminary conclusions."

4. There is no question of Counsel usurping the role of the Tribunal. For the sake of thoroughness, fairness and impartiality we must look at what was said to the Widgery Tribunal. The Report contains (so far as we are aware) the most complete and detailed analysis to date of an important part of that evidence. The so-called "preliminary conclusions" are, as the Report makes clear, of a wholly tentative kind, open to revision or rejection in the light of other evidence, including evidence as to the credibility of the evidence put before Lord Widgery. The whole point of Counsel's Report, as was made clear in the Report itself, is to permit interested persons either to find fault in the analysis or otherwise to contribute or add to it. The Report was published in accordance with the stated intention of the Tribunal to keep everyone informed of what we are doing. The Tribunal itself has reached no conclusions, preliminary or otherwise, nor does it intend to do so at this stage, which is indeed why it asked Counsel to undertake the analysis. The oral evidence given to the Widgery Tribunal, both by civilians and soldier witnesses, was chosen as the first material for analysis because it was available in its entirety. Analysis of the written NICRA statements was deferred because many of those who gave NICRA statements are in the process of giving much fuller, and in many cases clearer, evidence to the Inquiry, making it sensible to consider the written NICRA statements and the statements given to Eversheds as a whole.

5. The second objection is that "To form any preliminary conclusions at this stage is dangerous when no-one, including Counsel to the Tribunal, has had an opportunity to review all the presently available evidence."

6. This objection shows clearly that those making it have simply failed to understand the object of the exercise. The Report does not attempt to analyse the Widgery evidence in the light of new evidence for the very reason that the new evidence is as yet far from complete. However, if no proper analysis were attempted of the Widgery evidence as it stands, we would be failing in our duty to act with thoroughness. Furthermore, without that analysis, it would not be possible properly to assess that evidence in the light of new evidence.

7. The third objection is that "To form preliminary conclusions merely on the basis of some of the material which was before Widgery is a fatally flawed approach especially in view of the extent to which the original Widgery Tribunal and its findings have been discredited."

8. This objection is misconceived. The analysis is not based on the Widgery findings, but on an important part of the evidence presented to that Inquiry. The submission seems to contain an assertion that this part of the Widgery evidence should be treated as discredited. It is thus itself based on a conclusion (not even expressed as preliminary) reached before all the evidence has been considered. The submission accordingly begs one of the most important issues in the Inquiry. Counsel's Report makes clear that it is dealing with the evidence as it was given almost 27 years ago. The Report does not reach any conclusion as to whether other material will discredit that evidence.

9. The fourth objection is that "In arriving at his preliminary conclusions Counsel to the Tribunal has not considered the NICRA statements, which although available to Widgery, were disregarded by him - this replicates a fundamental error made by Widgery and one which has been subject to sustained criticism since."

10. The Report clearly states that it does not deal with the NICRA Statements and explains why it did not do so. The suggestion that the NICRA statements are being disregarded is simply false and must be known to be false, since as all are aware we have devoted great efforts to tracing as many as possible of those who gave statements to NICRA and have asked for their further help. We are pleased to record that as a result we have been receiving invaluable assistance from hundreds of local people. As soon as this exercise is complete we will be analysing everything that these witnesses have said in the past as well as what they have said to us.

11. The fifth objection is that "Counsel to the Tribunal has taken no account of, inter alia, Professor Walsh's report, which has been available to the Inquiry for many months and which shows compellingly that soldiers' evidence was unreliable. On the contrary he bases his analysis on those soldiers' evidence."

12. Once again this submission demonstrates that those making it have failed to understand the Report, which makes no claims as to the reliability or unreliability of the evidence of the soldiers other than to point out that, assuming the evidence to be broadly accurate, a number of deaths appear to be wholly inexplicable, which in turn casts doubt on the validity of the assumption. Whether or not the evidence is unreliable on the grounds set out in Professor Walsh's report, of which the Tribunal and its Counsel are well aware, is a separate matter that we shall of course be addressing in the course of the Inquiry. Once again, however, this submission proceeds on the basis of a firm conclusion reached before considering the whole of the evidence, and is also defective for that reason alone.

13. The sixth objection is that "to issue preliminary conclusions at this stage on incomplete and flawed material diverts the energies of the parties from reviewing the new and newly disclosed material and gives the appearance of prematurity, superficiality and selectivity to the work of Counsel to the Tribunal."

14. The submission, in its reference to "flawed material", once again begs one of the most important questions in this Inquiry. It is precisely in order to lay the ground for considering whether this material is indeed flawed that the analysis has been carried out. Apart from this, to describe as premature, superficial and selective a Report of over 100 pages, which clearly sets out its objectives, which carefully summarises and analyses a mass of contemporaneous evidence more thoroughly than we believe has ever been done before, and which in our view provides an essential tool for beginning the process of assessing the evidence, is quite unjustifiable. It would be impossible properly to review new material without such an analysis of what was said at the time, which has led to the identification of a substantial number of important issues, as well as areas which may be common ground. The exercise was also essential in order to inform interested parties as soon as possible of issues affecting them that might arise in the course of the Inquiry.

15. One of the purposes of the Report was to invite interested parties to indicate whether Counsel's summary of the effect of the evidence to which the Report relates was inaccurate in any way and whether there were inaccuracies in any of the material intended for use at the hearing, such as the Tribunal plan. In Paragraph 7 of the submissions we are told that an outside stairwell at the southeastern corner of Glenfada Park South is not included on the plan. We are grateful for this information.

16. This paragraph continues by saying that "the Tribunal should in our view investigate the provenance and history of this "error," as well as correcting it. The use of inverted commas indicates that it is suggested that the omission of a stairwell from the plan was not an error but a deliberate and presumably reprehensible choice on the part of somebody. Until the grounds for making such a suggestion are stated, the Tribunal is not disposed to consider embarking upon any such investigation.

17. The submissions conclude by stating that the Report is not accepted as either accurate or helpful for the reasons given. Apart from the reference to an outside stairwell at the southeastern corner of Glenfada Park East, no other inaccuracy was noted in the Submission. If, as is inferred, there are other inaccuracies, we should like them to be disclosed to us, either by those making the submission or by other interested persons.

18. We are bound to record publicly our disappointment at the content and tone of these submissions, which appear to us to reflect a continuing intention to engage in an adversarial contest rather than to assist us in carrying out our task of trying to discover the truth about Bloody Sunday. Apart from the information concerning the plan, the submissions do not advance the Inquiry at all.

19. The statement that the Report is not accepted as accurate is simply unhelpful. The Report itself requests all those concerned to respond to it, by among other things identifying any errors in the analysis. A blanket rejection by those who have clearly not even attempted a similar exercise is neither helpful nor consistent with the oft declared aim of seeking the truth.

20. The statement that the Report is not helpful is simply wrong, for the reasons that we have stated.

21. The families of those who died and those who were wounded (as well as all others concerned) are entitled to a thorough, fair and wholly impartial Inquiry into Bloody Sunday. They are not being well served by submissions of this kind. In these circumstances we invite a response to the Report that will assist the Inquiry.

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